Studies On Juristic Issues On Mortgage Of Uncompleted Building

As a new financing guarantee way, mortgage of uncompleted buildingwhich constructing or has not constructed means the commodity apartmentsells the building in advance to obtain the bank loan as the guarantee sign. Atthe beginning of 90's, this guarantee way spread to our country mainlandsince Hong Kong, combined the property development and the commodityapartment sales which are two different links and different financing objects ,avoiding in two links, the bank both had to loan the investment to thedeveloper , and had to finance the loan to the house-buyer , alleviated the ourcountry's real estate market's fund intense condition in the certain degree,this guarantee way enormously impelled our country real estate industrydevelopment and the housing reform deepening. Mortgage of uncompletedbuilding, on the one hand enable the common people to have the commodityapartment's dream to become the reality, expanding the real estate salesmarket, promoted the economical development;On the other hand, mortgageof uncompleted building application, expands the bank business scope andavoids the bank in the commodity apartment development, has sold inadvance in two independent links separately to the developer, house-buyer tofinance the loan to hold the fund form alternately, thus alleviated the ourcountry real estate market fund intense condition in the certain degree.However, says from the theory, as this kind of new guarantee waysource in British and American legal system, but our country guaranteesoriginated from the legal system continues is the mainland legal system,cannot find the guarantee form under our country existing guarantee lawsystem frame which corresponds with mortgage of uncompleted building. Inthe legislation and the practice, to use the mortgage system to adjustmortgage of the uncompleted building, but mortgage of uncompletedbuilding cannot contain aspects for the mortgage system, after thereforemortgage of uncompleted building introduced the mainland to cause thepeople to know the difference and the law were suitable on the confusion,how the correct mortgage of uncompleted building has the legal nature andfind the reasonable system standard, then had the important practicalsignificance. This article with the mortgage system concept, the characteristicand the legal nature analysis summary, attempts to mortgage the system legalnature to make the accurate localization, the discussion mortgage hypothesisprocess and the legal effect, proposes the measure in view of the risk guard,the union realistic question will conceive the future mortgage the system tobe perfect.The article altogether divides into four chapters besides the introductionand the conclusion:First chapter is about mortgage of uncompleted building concept, thecharacteristic and the legal nature. This article obtained from the mortgage ofuncompleted building origin, introduced mortgage of uncompleted buildingin our country's development course, was clear about our country mortgageof uncompleted building the connotation. Mortgage of uncompleted buildingtook the real estate domain one kind of widespread application the financingguarantee method, causes the developer, house-buyer the bank tripartitebenefit obtains the best conformity, its characteristic mainly displays in:Involves two congruent relationship and the tripartite sponsor;object non-feasibility;The mortgage of uncompleted building legal relationship has themultiplicity;The mortgage of uncompleted building power realization wayhas the multiplicity;The mortgage of uncompleted building power has theguarantee real right. Because the mortgage of uncompleted building legalnature is the present theory dispute hot topic, therefore the article analyzedthe real estate mortgage to mediate the right emphatically to pawn said that,obtained the author regarding the mortgage of uncompleted buildingqualitative soon mortgage of uncompleted building minute stage analysis,recognized before completion pawned the loan after the right but to becompleted for the real estate mortgage loan, afterwards also mediated thenew guarantee real right to the scientific theory or principle existenceaccurate mortgage to say has made the critique, the affirmation this articleviewpoint rationality, finally through to remised the guarantee theintroduction, will attempt to solve the future to legislate whether locatedmortgage in remises the guarantee the dispute. This part is this article centerof gravity is at. Because in the mortgage of uncompleted building law naturelocalization critical time practice all quarters right conflict processing, is theresearch sells in advance the commodity apartment mortgage practice thecore to be at, in has not clarified in front of its legal nature must discuss in themortgage of uncompleted building process appears the question and thesolution all is a futile effort. At the same time also lays the foundation for lastthe chapter of legislation conception.Second chapter is elaborates the mortgage of uncompleted buildinghypothesis and the legal effect. The author obtains from the mortgage ofuncompleted building hypothesis unit process, explicitly elaborated in themortgage of uncompleted building legal relationship all quarters litigantincluding mortgage the person, mortgage the power person and the propertydeveloper, and makes the system summary to respective right and the dutyand the reciprocity. The author on each stage registration system has madethe careful introduction to our country mortgage better, elaborated theadvance notification registration, the registration of mortgage system contentas well as in the mortgage function, hopes through the consummationconcrete system advancement in kind dispute solution. Regarding the legaleffect, the author mainly was introduced in mortgage the legal relationshiplitigant's right and the duty. This chapter of content design is the attentionintroduced our country mortgage system the elementary theory, definedmortgage each kind of relations which and produces in the practicemovement, causes the author to conceive realistically in the behind analysis.Third chapter is question which and how guards against about themortgage in risk. First, introduced in mortgage the person, mortgage thepower person as well as real estate business in are actual the common riskwhich faces, and aimed at all quarters litigant's to propose the balanced planin bankruptcy time benefit loss. In this foundation, the author proposed isactual guards against the risk the key to the situation, mainly includesregisters male shows the system, the insurance system as well as the loansystem, also has contained the reality affirmation, also proposed the reasonopinion. This chapter regarding the actual center dispute solution has theimportant model significance.Fourth chapter is the author regarding our country mortgage systemlegislation conception. At present our country mortgage related legal systemis facing legalizing, the standardized track advance. But, but also has thelegal adjustment not to be full, the real estate handling imperfect question, theurgent need mortgage system thorough legislation, by solves in the real lifeproblem. The author approved the formulation unification adjusts thecommodity apartment sale and mortgage the secured loan special law, thusthe guard risk, the promotion real estate industry full scale development, andbefore the union the article proposed several concrete legislations tentativeplans, the hope has been possible for our country mortgage systemconsummation completely meager strength. Finally, the article will deny thefuture to remise the guarantee to cover the present mortgage system theviewpoint, proposed two parallel achievement real life in guarantee form, thisconforms to our country objective reality tentative plan, believed will be ableto appear the real estate vigorous development in the future.