Research On The Legal Issues Of Commercial Housing Mortgage

In the 90th of 20 century, mortgage came into mainland from Hong Kong, and it has already become the most commonly used methods in the housing market. With the help of mortgage, purchaser can solve the shortage of funds; bank can develop many new high-quality business loans; real estate developers not only promote their real estate but also start up financing. However, the "mortgage" has not been recognized by the national legislative documents, and there is no formal usage of the word "mortgage". So, it is difficult to apply the laws and regulations accurately under such circumstances. The current laws and regulations in China applied to the commercial housing mortgage have been exposed a lot of defects, so it is necessary to research the mortgage theoretically and practically. This paper is divided into three major parts:First Part: Theory and the Qualitative Definition of the Mortgage.There is no conception of the mortgage in the mainland of China before the mortgage was introduced from Hong Kong, so, the expatiation about some theories of commercial housing mortgage will be helpful for the research in this paper. This section starts from the origin of "mortgage". The "mortgage" was from Hong Kong as a guarantee way, and the "mortgage" is a semi-transliteration of the Cantonese words. Next, I use a simple chart to summarize the flow of commercial housing mortgage loans to have an all-round understanding of the mortgage system. The analysis of several contracts involved in the mortgage leads to the discussion about the qualitative definition of the mortgage. This paper compares and analyzes several related popular opinion and makes a conclusion finally as follows: commercial housing mortgage should be an independent guarantee. It has its own characteristics after being introduced form Hong Kong, with the special function and role which is irreplaceable. We should acknowledge that the mortgage should become an independent and unique legal classification.Second Part: Problems in the Current Commercial Housing Mortgage of China. This part has summed up the problems at the legislative and practical aspect. In the legislation:"mortgage"is scattered all over the local laws and the government regulations, but not at higher-order legal provisions, such as the Guarantee Law of the People's Republic of China.So,it is difficult to apply the laws and regulations accurately under such circumstances. In practice, the focuses of the analysis in this paper are the "fake mortgage" problem and mortgage insurance problem. The "fake mortgage" usually exists with a true signature of the purchaser or with the forged signature of the purchaser. There are a lot of reasons why it exists, such as the real estate developers, the banks, the outdated content of the"Lending General Provisions of the People's Republic of China"etc. As for the"fake mortgage"with the forged signatures, real estate developers should take full responsibility for the repayment, because the borrower does not exist. In the case of"fake mortgage", with the purpose of illegal possession, the developers pose as buyers and use the fraudulent reasons to fraud the large amount of loans from the bank, which is in full compliance with the Crime of Loan Swindling. As for the mortgage insurance, the author discussed the problems such as the compulsory insurance, the beneficiary, the abuse of proxy etc. The mandatory mortgage insurance violates the principle of voluntary insurance and the "Anti-Unfair Competition Law of the People's Republic of China". Putting the bank as the first beneficiaries obviously violates the Insurance Law of the People's Republic of China.Third Part: Consummation the System of the Commercial Building Mortgage.In this part, the author puts forward certain proposals to the problems mentioned above and the mortgage system of the mainland. To prevent the occurrence of "fake mortgage", we must carry on several essential aspects as follows. We can use the facilitating agency to regulate the loan. We should strengthen the credit investigation and credit review etc. As for the issue of mortgage insurance, we can learn from the United States, the Netherlands, Hong Kong and other countries and regions with the sophisticated system; the government can open up many new types of insurance products which fit the national conditions of China, such as the mortgage life insurance, the credit and guarantee insurance. As for the consummation of legislation, the author suggests to increase the hierarchy of law mortgage related; formulate the standard contracts for the commercial housing mortgage; improve personal credit system and the advance registration system.