The Study On The Reform To The Mortgage System Ofcommercial Housing

This thesis makes research on the history and development ofmortgage system and points out that the existing mortgage system ofcommercial housing in our mainland is not the real mortgage system,although it was imported from Hong Kong. As a result of the prohibitionprinciple of Civil Law system, the title of the mortgaged estate fails to betransferred to the mortgagee directly, which makes the operationmechanism of our mortgage system different from the real mortgagesystem, especially in the realization of the mortgage, in which the bank(namely, the mortgagee) has to dispose the estate in compliance with themethod stipulated by law in stead of disposing the estate at its owndiscretion by obtaining the title directly from the mortgagor, whichincreases risk of the bank greatly. Therefore, based on its owncharacteristics, the author puts forward the suggestion on the reform toour mortgage system, the essence of which is to permit the title of themortgaged estate be transferred to the mortgagee, and emphasize thatsuch transfer happens not in the establishment, but in the realization ofthe mortgage. At last, the author makes some suggestion to the specifiedprovisions of our mortgage system based on our reality.The thesis divides into three parts: the first part, to study themortgage in the aspects of the wording and history. The mortgageoriginated in Common Law system and made developments in HongKong. The difference between the traditional mortgage and the mortgagein Hong Kong is that in the traditional mortgage, the title of themortgaged estate will be transferred at the establishment of the mortgage,but the mortgage in Hong Kong has another method in addition to themethod of the traditional mortgage, by which it will transfer such title justwhen the realization of the mortgage is needed;the second part, to studythe establishment, practice and the legal nature of our mortgage system ofcommercial housing, and point out that our mortgage system is not thereal mortgage system, because of the lack of the title transfer. Therefore,it should be categorized as the real estate guaranty;the third part, basedon the forgoing of the study on the history and practice of the mortgagesystem, the author believes that the lack of the title transfer to themortgagee is the reason for the failure to protect the bank as a creditorfrom risks. So our mortgage system shall be reformed, and the essence ofsuch reform is to transfer the title of the mortgaged estate to the bank inthe realization of the mortgage;the nature of the reform is to replace thestipulated disposal method by law with the disposal at bank's discretion;the method of the reform is to permit the title of the mortgaged estate betransferred to the banks on a certain condition;the reformed mortgagesystem still shall be categorized as the real estate guaranty;the directobstacle of the reform is the prohibition on such title transfer set forth inthe Guaranty Law and the indirect obstacle is the existing separationprincipal for the bank's operation in the Commercial Bank Law. At last,some suggestion for the provisions by law on our commercial housingmortgage system is put forward, which is based on the reality of ourcountry.