A Study On The Legal Issue Of Mortgage Of Pre-selling Commercial Building

In the 90th of 20 century, mortgage comes into mainland from Hong Kong. With the revolution of the commercial building, as being a financing guarantee of housing, mortgage is revealing the validity itself since it appears. In this article, the author analyses the question of mortgage of commercial building in our country on the basis of comparing the theory of mortgage in common law system with the theory of alienation surety in Roman law system. There are four sections in this article and abort twenty-five thousand words in it.First chapter, the outline of the mortgage of commodity building. Because mortgage is not a Chinese native concept, so this part first and clear embarks form the correlate concepts, and from mortgage′s origin and its system development, knew the unique nature of the mortgage of commodity building in our country. Then from the mortgage of commercial building with Chinese characteristics involved in the legal proceeding to inspect its identity.Second chapter, the nature of the mortgage of commercial building. This chapter is the key point of the full text. The purpose of this chapter is exposition of the mortgage of commercial building. This chapter deals with the characteristics, first introduced the various viewpoints on the mortgage of the commercial building. Then compared the mortgage of commercial building with the real estate mortgage, rights pledge and alienation surety one by one. First, the analysis the mortgage of commercial building with the real estate mortgage. They are differences in the loan goal, the scope of secured object,the operation way, participating parties. But these differences are only in the form, if two forms significant differences can compromise, then it will be feasible to call the mortgage of the commercial building the real estate. Because China's main registration system is not yet perfect, so the mortgage of the commercial building is applied. But"People's Republic of China Reality of laws"has been clear about the advance registration system, has filled this blank. Secondly, the mortgage of commercial building is different form rights pledge. In my opinion, the mortgage of the commercial building which operated in the form of rights pledge is not realistic. Third, analysis the mortgage of the commercial building and alienation surety. In some respects there are similarities with security and the mortgage. But the alienation surety has many drawbacks. I thought it is not necessary to let alienation surety alone, if necessary, its publicity was a problem. Finally, located the mortgage of the commercial building. I think that the uniqueness of the mortgage of the commercial building of our country lies in: It have the name of mortgage but no shape, it has the mortgage and has no shape of mortgage really, so it legal nature circle of the mortgage of the commercial building as simple continent law department first kind of real right of pledge impossible to want. So, should be concrete while studying made a concrete analysis of , fully respect the party′s meaning choice. Certainly, prerequisite that meaning choose to transform our country′s present real estate mortgage system, perfect the resignation system of the real estate, offering the pluralistic form of real right of pledge. Only in this way could solve the legal problem appearing.Third chapter, the practice problems and solutions of the mortgage of the commercial building. This chapter in view of the mortgage of the commercial building still does not have in the Chinese civil law, but in practice the mortgage of the commercial building is complex, and cause many disputes, and often involve the disputes in the whole mortgage process. First, registration question. In the practice, between the home-buyer and the developer"information asymmetry"as well as the developer′s"the moral risk"existences. The home-buyer′s rights and interests are extremely easy to receive the violation. In order to avoid this kind of situation occurred, in 2007 newly appeared"People's Republic of China Reality of laws"to stipulate the advance notification registration system. The advance notification registration system has preserves this position, preserves the right, early warning and the bankruptcy protection effect. Therefore, is may the very good solution at present through the establishment advance notification registration system according to the mortgage of commercial building not to have reality of the mortgage awkwardness. Next, the insurance. At present, the more the sale of real estate mortgage insurance, property insurance in the awkward position of a dual-cooled demand, has caused home-buyer′s intense disaffection. The main problem is that there are compulsory insurance, mortgage banking and abuse of the power of attorney to both agents and beneficiaries. and the amount of liability-insurance issues. Clearly, if these problems can not be resolved in a timely manner, it will seriously restrict the sale of real estate mortgage insurance development. The key to solving these problems is return voluntary insurance to the laws.Fourth chapter, perfect the system of the mortgage of commercial building. This chapter based on the first three chapters. First, clearly define the legal nature in the legal laws and regulations. Secondly, the government should take measures to promote the mortgage development. Third, the banking industry, the negotiable securities industry, the insurance industry develops simultaneously, constructs our country mortgage market system. Finally, attorney can play a preventive role in the mortgage lending process.