| In the late 90s, our country to coordinate housing system's reform, starts to allow the Commercial bank to set up individual housing secured loan, thus the mortgage system can introduce from Hong Kong. The mortgage guarantee way solved home-buyer's current fund to be difficult, promoted the property developer sale, has accelerated the property development fund revolution, expanded financial organ and so on bank loan businesses, oneself after has become the developer, to buy homes one financing guarantee way which the human and the bank and so on accepted generally. But, is unable in mortgage loan period each kind of situation to predict that the mortgage person's credit situation, the payment ability, the house breakage and so on many risks control with difficulty. Whether the effective shift, does the dispersion all quarters' risk relate the mortgage service the benign development, even relates to a country real estate money market security and the stability. Therefore, the bank, the developer and buy homes person's guard against into an important research subject in mortgage risk and the law.This article is divided four chapters: first chapter of mortgage system's outline a mortgage word is spreads from Hong Kong, is Hong Kong scholars to the UK-US law in one kind of guarantee way mortgage translation. Our country mainland's real estate market to a mortgage word's use, has merged the Chinese law background to form had the Chinese law connotation Chinese common law approval legal terms. It is refers to cannot or is not willing disposable to pay Fang Kuan the buying homes person, it commercial housing of contract of sales item of under with the developer all rights and interests mortgage in the mortgage bank, or the real estate mortgage which obtains of contract of sales its reason and the developer in the mortgage bank, the mortgage bank lends certain amount fund buys homes the human and buys homes the person name to hand over the fund by the developer all, the developer provides the association guarantee responsibility to the mortgage person repayments the behavior general name. Our country mainland implements the mortgage, divides into two kinds differently according to the guarantee subject matter shape: Forward delivery housing (property under construction) mortgage and present room mortgage. The mortgage legal relationship, its whole movement involves all legal relationship, should embark from the different main body, makes the different classification, its constitution is: Business relates, the mortgage relations and the insurance relations. Through to above general theory's research, to analyze in well the mortgage all quarters risk, seeks the more risk measure has established foundation.The second chapter has analyzed the bank the risk which exists in the mortgage, and proposed the corresponding law measure in light of this. First is in the mortgage the bank risk guard. The bank common risk includes: Originates in the developer risk, originates from borrower's violation risk, originates in and originates by the mortgage real estate risk from the laws and regulations and the policy risk. The bank risk measure is: First, strengthened mortgage application examination. Including strengthens to the developer mortgage application examination, strengthens to buys homes person's credit examination. Second, strengthens bank oneself to the credit risk monitoring and the management. Including the science appraisal mortgage real estate, completes the commercial housing mortgage loan contract the sign work, to expand the financing channel. Third, strengthened developer guarantee responsibility. Fourth, introduction insurance business involvement mechanism. Fifth, gives full play to attorney's participation function.The third chapter In mortgage developer risk and legal guard. The developer common risk includes: The risk which as well as the related real estate judicial interpretation with buys homes the person related law risk, after the bank related law risk, the developer to undertake commutation responsibility the additional compensation power realizes to the developer risk. The developer risk measure is: First, substitutes for the developer by the specialized Bonding company the guarantee status. Second, under present mortgage operating mode perfect contract terms. Including the consummation and the bank mortgage cooperative agreement, consummates and buys homes the human "Commercial housing To sell in advance Contract". Third, may adopt other risk preventive measure. Including the bank before the certain extent the public loan examination method and the standard, the signing bank preliminary hearing procedure, handled the property right registration ahead of time the request procedure as well as tallies with buys homes the human to terminate an agreement the condition to consult promptly or through the form of action form solution The fourth chapter In the mortgage buys homes person's risk and the legal guard. Buys homes person's risk including from the developer risk and from the bank risk. Regarding comes from the developer the risk measure to include: First, examination main body qualifications. Second, the examination sells in advance the condition. Third, examination contract. Fourth, attention earnest money payment. Fifth, attention procedure preservation. Regarding comes from the bank the risk measure to include: First, investigates this bank the credit situation, greatest loan specified amount, interest rate computation situation, whether needs to insure, undertakes the insurance respectively and so on. Next, the attention mortgage contract's loan origination deadline, the way, the amount, the dragging sends the loan the responsibility, the interest rate, should also the principal and interest total amount calculate whether accurately, the month does supply the way, the amount, the deadline is whether reasonable, is accurate. Once more, after the signing, discovered that the bank has the violation sign to propose the opposition immediately, advocates oneself contract item of under to the bank the right. Finally, hires attorney to help the solution related legal matter, causes to buy homes person's benefit to obtain the greatest degree maintenance and the safeguard.Fourth chapters buy risk of house people according to lifting up middle and the law keeps watch. The risk buying house people includes the risk coming from the risk developing business's and coming from a bank. To the risk coming from the business developing, countermeasures includes: First, examine main body qualification. Secondly, examine advance booking condition. Thirdly, examine a contract. Fourthly, pay attention to the advance payment handing over. Fifth, pay attention to the procedures preservation. To the risk coming from a bank, countermeasures includes: The money first, inquiring into that bank believes condition , maximal loan forehead degree , interest rate calculate if condition , need insurance, each bears an insurance amount waiting. Secondly, pay attention to giving out the time limit , way , number according to the loan exposing a contract , delay responsibility , interest rate sending out a loan , should return a total back to principal and interest secretly scheming against being accurate or not, the month is for way , number , time limit being rational , accurate or not. Discover a bank after once again, signing a contract, having the indication breaking a contract immediately suggest that oppose, advocate self lower contract item right to the bank. Ask a lawyer to help the problem resolving the relevance law finally, make the benefit buying house people get maximal degree upkeep and guarantee.This article through to the mortgage in the bank, the developer and buys homes person's risk analysis and the measure research, by time all quarters in the mortgage process, can avoid and control each kind of risk as far as possible the appearance, thus causes our country's commercial housing mortgage service to move even more security and stability.
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