The Study Of Housing Mortgage In The Mainland Of China

Along with the development of Chinese real estate, the mortgage is applied more and more widely. The superiority of mortgage is obvious, but no explicit stipulation has been made in Chinese law system, as regards the definition, the legal nature, the relationship between the home-buyer and the property developer and the bank, and how to undertake the responsibility. As in the practice the type of housing mortgage loan is numerous, and every bank has worked out all kinds of mortgage loan contracts owing to self understanding, the operation of mortgage presents the multiplicity and the irregular plastic aspect. Because does not have the unified law to give the standard, not only creates chaos of the real estate market in the certain degree, moreover brings very many disputes which solve with difficulty, but also is unable to guarantee court referee's fair and the unity. This question becomes a bottleneck of the development of real estate money market in the mainland of China. The article through the analysis of housing mortgage related questions in the mainland of China, proposes the establishment and the consummation suggestions of mortgage system.The article is divided into four parts, and altogether 42,000 words.Firstly, the development history, operation and existence questions of housing mortgage in the mainland of China. This article obtains from the origin of housing mortgage in the mainland of China, surveys its development present situation, and enumerates internal stipulation at present financial organ, then summarizes its actual operation step and the main characteristic, and summarized its existence questions, in order to clearly present the survey of housing mortgage system in the mainland of China.The second part introduces the comparison of housing mortgage in the mainland of China with the correlation guarantee forms. The paper analysis contrasts housing mortgage in the mainland of China with the mortgage of the common-law system, the warranty of alienation of the civil law system, the pledge and the impawn in our national representative guarantee forms, and brings forward that housing mortgage in the mainland of China has the advantages that other guarantee forms has not. The third part discusses about the legal attribute of housing mortgage in the mainland of China. The article analyzed one by one the theory of the estate pledge, the theory of the right impawn, the theory of the warranty of alienation, and the theory of unity of contracts, also the related contents in the reality of laws draft. The author holds that housing mortgage in the mainland of China should not belong to the existing any guarantee way. The mortgage right is one kind of different real right, and is one kind of independent guarantee real right. The law should establish its legal status.The fourth part regards the legislation and consummation of housing mortgage system in the mainland of China. The premise of this part is cleaning about the legal necessity of mortgage right. In the legislation and the consummation aspect, the paper proposes the following tentative plan: First must solve its real right legal problem, and from the legislation confirmed the mortgage right is one kind of independent new guarantee real right form, and clear about its concept. Next, should be clear about the mortgage register question. The pre-register notice system should be established. In the legislation must explicitly definitude the pre-register notice potency.The last part is about criterion of certain questions in practice operation. There including two questions: First, to give the standard of mortgage loan contract. The mortgage loan contract demonstration text should be made, to protect litigant's freedom of contract. Correct limits contract main body, standard litigant right duty. The safeguard contract litigant's rights and interests are balanced. Next, should correctly recognize and deal with litigant's responsibility in the processing dispute. This article analyzes litigant's responsibility and processing according to the different reason difference which the dispute produces to recognize.