A Legal Research On The Real Estate Mortgage Securitization

Real rights for security, from the view of its own history of development, is related with and designed for the need of social economic development. The fast development of modern Market Economics requires higher translating and crediting, which increasingly challenges the real estate security system. The value orientation of the mortgage of our country's present legislation is completely take safe guarding the realization of the creditor's right as a goal, while denies the investment function of the mortgage. How to react in law system, especially with the improvement of our country's Market Economics, is an important project for both legislator and authors of law. So it is necessary to conduct the new study of the mortgage system on the investment function of the mortgage. This paper makes a superficial research on the theory of mortgage securities from aspect of law by means of induction, deduction, and demonstration etc. And it points out that, we not only should fully consider our country's actual situation, but also should drive lessons from successful experience of other countries, when we conceive our country's mortgage system. We should affirm the value nature of the mortgage, and constitute the mortgage securitization system, unify the mortgage and the securities to make the mortgage bond, make it a independent property right and into circulation to fully exert its function to preserve the creditor's right and its investment and financial function.The first part of this paper will start with the nature of the mortgage---- the value nature of the mortgage; present independence theory of mortgage, which is the logical and theoretical base for conceiving mortgage securitization system.In the part II,this thesis defines the concept and the legal characters of mortgage securitization; (Mortgage-Baked securities) compares the essential legal nature differences between mortgage securitization and mortgage-backed securitization.In the part III,this thesis introduces the law system of main countries with developed Market Economic, in order to give an example for the juristical analysis. Especially the systems of Germany, which is not so unfamiliar to both economic realm and law realm, this paper gives much more detailed introduction and supply a base for the introduce of the correlative systems in our country.In the part IV, the conclusion part, this system first analyzes the legislative situation of mortgage and points out that there is a signal of transforming from preserving mortgage to marketable mortgage in our country. with full consideration of our country' s special conditions, and gives legislative suggestions, which includes the rules and concrete systems for the mortgage securitization.