Research On Legal Control Of The Risk Arising From "Fake Mortgage" In Commercial Banks Of China

At the beginning of 1990s, mortgage comes into China Mainland from Hong Kong. With the reform of housing system in China, as a kind of house-purchasing financing guarantee form, mortgage has revealed the strong validity since it appears. At present, in the transaction practice of commercial houses in the various regions, the mortgage can be divided into two kinds: Mortgage property of under construction and Mortgage property of constructed. Among them,"fake mortgage"has become one of the most serious risk sources against housing-mortgaged loan in China, which mainly appears in mortgage property of under construction."Fake mortgage"means the behavior that real estate developers collude with house-purchase applicants without true intention in purchasing houses to acquire the individual housing loan of commercial banks (if there is no special account, commercial banks in the following are abbreviated as banks ) by fake house-purchasing transaction and uniformly return the loan instead of borrowers."Fake mortgage"has already disturbed the financial market and financial order seriously with the various means and legitimate form. One reason for causing"fake mortgage"is that before houses are constructed, real estate developers can pre-sell houses, and evade the limitations for the loan of real estate developing by applying the housing-mortgaged loan through housing purchasers. The other reason is that in theory and practice, the risk sense for fake mortgage is insufficient, and relevant legislation is deficient.As the direct victim suffered in"fake mortgage", creditors, commercial banks, face the largest risk, which is related with the lagging risk management level of banks, and also closely related with the incompleteness of relevant legal control measures. So, under the condition that housing-mortgaged loan of banks expands gradually and"fake mortgage"brings more risk for banks day by day, research on legal control in the risk of bank has become very necessary. There are much research on legal control in housing-mortgaged loan ,but not on"fake mortgage"specially. Therefore, this thesis simultaneously has the certain value of innovation and application. The author has used various ways of analysis,such as theories, cases, the contrast analysis, the concept inference and so on. And explanations are very exhaustive .This thesis has three major chapters together, besides introduction and conclusion.Chapter One: Survey of the risk arising from"fake mortgage"in banks. At first, the author analyzes one case about"fake mortgage", and then the main legal problems in"false mortgage"are summarized. On this basis, this part has summed up the main kinds of"fake mortgage"risks of banks: risks from real estate developers, nominal debtors, house property of mortgage, and business practice of housing-mortgaged loan.Chapter Two: Discuss causes resulting in"fake mortgage"risk in banks from legal aspect. This part is subdivided into three sections: 1) currently, defects of legal system of bank credit loan; 2) limited supervision regulation for"fake mortgage"; 3) legislation restriction on disclosing credit information.Chapter Three: Discussion in legal control measures of the risk arising from"fake mortgage"in banks. This part closely links to legal problems summed up in Chapter two and puts forward several concrete legal control measures. For example,1) in order to perfect the legal system of bank credit loan,"revealing the'fake mortgage'veil"is introduced to solve the difficult problem arising from"contract law", which the court often faces in making decision.2) to amend "The General Provisions of Loans of the People's Bank of China" is an opportunity for helping clean legal obstacles in securitisation of credit assets.3) it is necessary to amend laws related to housing-mortgaged loan guarantee in order to release the prohibition on"mortgage transfer clause", and meantime improve the efficiency of housing guarantee companies etc. 4) when amending"The law of the People's Republic of China on Urban Real Estate Administration", the opinion of"professional agencies are introduced to supervise housing-mortgaged loan"shall be adopted. In addition, in order to perfect the supervision regulation on"fake mortgage", several important proposals are put forward. The author believes that the individual and enterprise's credit information shall be regulated, respectively. Meanwhile, it is important to pay attention to protect the private and business information while disclosing them.