On Conflicts And Balance In Interests Of Mortgage Contract

The house mortgage is an action which the buyer put his contract with the realty sellers in the bank, the bank give a certain loan to the buyer in the buyer's name, and then give the loan to the realty sellers; Different form the trading of house in traditional civil law, the house mortgage is considered a realty game played by buyers, banks, and sellers. The mortgage has its own individuality which the house trade and bank's loan stick together. Since the house mortgage spread to china, on one hand, it has solved the problem of difficult buying house as common persons, expanding the real estate sales market, promoted the economical development; On the other hand, mortgage of building application, avoids the bank in the commodity apartment development, has sold in advance in two independent links separately to the developer, house-buyer to finance the loan to hold the fund form alternately and expands the bank business scope, thus alleviated the our country real estate market fund intense condition in the certain degree.However, as a kind of financing guarantee instrument which is widespread used in the housing region, the house mortgage originated from England and spread to our country mainland since Hong Kong. The legal system of our country is different from the British and American legal system. It is a difficulty to find the guarantee form under our country existing guarantee law system frame which corresponds with the house mortgage. So on the relationship of house trade, the dispute of the house mortgage occurred increasingly and more and more complicated. The dispute solution among buyers, banks and sellers, then has the important practical significance. The article with a concrete case, attempt to expound the legal question in the case and find the key to solve it, which is the balance in the dispute of three aspects'rights, more ore over, expound the solution to balance the dispute and conceive the future mortgage the system to be perfect.This article consists of three chapters. The following three chapters will be discuss the benefit collision display between the house buyer and the bank, the house buyer and the house seller, the bank and the house seller, as well as the physical measure solving the conflict among them.The first chapter discusses benefit conflict and balance between the house buyer and the bank in mortgage relation. At the beginning of chapter, the thesis introduces the source of mortgage, and then definitude the connotation of the mortgage. Then this thesis introduces the performance of the benefit conflict from threefold: Firstly, the benefit conflicts in the risk taking risk taking. Secondly, the benefit conflicts of merchandise atrium operating restrictions. Thirdly, the benefit conflicts due to bank's one-sided rescission of contract. It is key factor lead to both sides benefit unbalanced that the bank has the privilege of setting down the mortgage contract. Another imbalance reason is buyer can not implement the mortgage contract smoothly owing to rapid development of realty business and the swift surge of house price. Therefore, this chapter amplifies how to solve the problem above in the second section. The thesis Balance the conflict between the buyer and the bank by way of establishing and perfecting the personal credit regime, ingressing the underwriting and founding the institution of lodging's security held in pawn.The second chapter exponents benefit conflict and balance between the house buyer and the bank. The relationship between the house buyer and the house seller in the mortgage contractual relationship is a kind of special emptio-venditio relation, therefore, the right and obligation relation between the house buyer and the house seller have the commonness as well as characteristic. The thesis expounds the physical measure of solving conflict from the benefit conflict performance between the house buyer and the house seller. There are two performances in the bilateral conflict. On one hand, the house buyer bears all of the risk when the mortgage house were broken, while the house seller only bears the guaranteeing obligation; On the other hand, because of the interest seeking, the house seller break the contracts more and more increasingly, which is harmful for the house buyer's rights and interests countless. On the base of performance above, the anther believe that the key of balancing conflict is the lee of the buyer's rights. However, in our country, the law and the legal rules are not perfect in the protection of the house buyer. During the concluding of the mortgage contract, there is not an authority legal rule to adjust the mortgage relationship. In the judicial practice, the house buyer has the difficulty in listing the proofs. So this thesis put forward several measures of protecting the house buyer, such as constituting and amending the law, perfecting the registration system of proclamation. Balance the benefit conflict between the house buyer and the house seller on the base of law and institution.The third chapter discusses the benefit conflict and Balance between the house house seller and the bank. The same as the method of the second and the third chapter, this chapter expounds the performance of benefit conflict between the house seller and the bank; the benefit conflict owe to the house seller's general warranty general; the benefit conflict when the house seller break the contract. There is no any legal relation between the house seller and the bank in Hong Kong house property mortgage, there are only the house buyer and the hand in the mortgage contracting parties. While in our continental there are three sopranos in the house mortgage contract, because of the low level of economic development, enterprise standing, and personal credit and so on. So the benefit conflict between the house seller and the bank is the product of our national continent mortgage institution. And the solution must be incorporation of continental factum.This chapter balance the house seller and the bank's benefit conflict from ascertain the bank's lawsuit status, protecting the entity of the band and formulate the liability on guaranties of the house seller.