The Study Of Legal Protection Of Bank's Creditor's Rights On Mortgage Loan With Personal Residence

Since commercial banks began mortgage loan business with personal residence, the business has developed with high speed. The mortgage loan balance has occupied high proportion among all loan balance of commercial banks. But in the legal sphere of learning, there are different opinions about the legal nature and relationships of Chinese-style mortgage with personal residence. And the relevant legal provisions are also not perfect. These factors make great barriers for protecting legally bank's creditor's rights on mortgage loan with personal residence. This article will probe into how to perfect the relevant legal system and legal practice about the protection of bank's creditor's rights on mortgage loan with personal residence by the means of comparative research, and ect..This article is composed by three parts as following:Part one summarizes the various measures of the protection of bank's creditor's rights on mortgage loan with personal residence. And then limit the scope of studying of this article.Part two is the main content of this article which is composed by five chapters. The first chapter briefly introduces the word of mortgage, and the conception, processing of occurring, contents of bank's creditor's rights on mortgage loan with personal residence, and the factors which may affect the realization of the right. At the same time, the author points out the important meaning of the protection.The second chapter is about the theoretic analysis of the protection of bank's creditor's rights on mortgage loan with personal residence. In this chapter, through comparing the mortgage in China to the mortgage in Britain and America, the author limits the features, legal nature and legal relationship of mortgage in China, and confirms that the Chinese-style mortgage works very well in China. Thus, the analysis in this chapter supplies theoretic foundation for the study of the protection of bank's creditor's rights on mortgage loan with personal residence.The third chapter is about some main legal barriers for this protection. First, for there are improper legal provisions about the legal relationship between the contract of mortgage and the contract of house-dealing, there are different decisions about the authenticity of mortgage contract in the practice of justice. Second, there are legal barriers in the respect of setting-up and realization of mortgage because of the imperfect of property register system and improper legal provisions. Third, the counterplea about guarantee of real estate company usually makes bank's right come to nothing. Forth, fake mortgage seriously threatens the creditor's rights of banks. Fifth, the credit system is not perfect.The forth chapter is about some detail protective measures that banks could take in the protection of bank's creditor's rights on mortgage loan with personal residence due to barriers. For example, how to be on guard of fake mortgage, how to claims bank's rights in the lawsuit between house-buyer and real estate company, and how to claims bank's rights when the contract of mortgage being carried out unsuccessfully, and how to transform the risk to real estate companies by an agreement between bank and company.The last chapter is about some suggestions on how to perfect the legal system of the protection of bank's creditor's rights on mortgage loan with personal residence. In this chapter, the author points out that we should renew the legal relationship between the contract of mortgage and contrast of house-buying, should establishisolation mechanism between mortgage loan and real estate companies, should set up credit system by law, should perfect the property register system, and should get rid of the improper legal provisions which are the barriers of the realization of banks' creditor's rights.Part three concludes with the summary of the writing process of this article, and points out the deficiency and the future direction for further study.