Research On Legal Issues In Mortgage Of Building Under Construction

With the economical and social development and the improvement of the theory of expecting right, the majority of scholars have endorsed the system of the mortgage of building under construction. However, because of the characteristic of the building under construction, the theoretical circle has a lot of controversial questions; it is also very difficult for practical unity. It leads to many problems in the mortgage of building under construction. This article is beginning with a case in order to do some research on the legal aspects of the mortgage of building under construction.The main part of this article follows the basic reasoning of "bring forward problem -analysis of problem - to solve the problem." And this essay consists of four parts.The first part is the case introduction. I select a case of the Superior Court of Shanghai as research subject. Both the trial court and the appellate court heard the case and there is a split decision on the result. Differences are focus on if the right of mortgage of building under construction will be eliminate after right to use state-owned land is recaptured by state in accordance with the law.The second part is the focus of the case. The part have summarized the focus of the case into four questions of law: First, the reasonableness of the mortgage of building under construction; Second, the establishment time of the right of mortgage; Third, the relationship of the land and the building under construction; Forth, how the recapture of the right to use land will affect the right of the mortgage of building under construction. This article is focus on the four questions discussed.The third part is dispute and divergent opinions. Regarding the first question, theorists have two opinions: oppose and support. The oppose side do not think the building under construction is specifically and independent, even if the contract can not effectively produce the effectiveness of the right of mortgage. The support side has an expansion explain of the specific of the mortgaged property. They also believe the building under construction is belong to the land, and of course, the land with building under support is independent. On the second question, some scholars think the right of mortgage of building under construction will be effective after the building is completed, while some scholars think the right will be effective after register. On the third question, the scholars differ mainly regarding the relationship between the land and the building under construction. On the fourth question, some scholars think that the right of mortgage of building under construction should be eliminated, considering how to use the value of the land; and other scholars think the right should not be eliminated, considering how to protect private right.The fourth part is the conclusion of the study, which is the focus of this article. Regarding the first question, I believe that mortgage of building under construction is reasonable, on the grounds that building under construction comply with the four conditions of mortgage. However, the building under construction has its drawbacks. So I make a summary on two points which I think the more important and then I propose some solutions. On the second question, I favor the establishment of mortgage after registration. For this problem, this article researches the subject of mortgage and mortgage agreements. And I have a brief analysis of the choice between two register models. About the third question, the paper first analyzes the characteristic of the independence of the building under construction, and then come to the conclusion that the relationship of the land and the building under construction is a special. On the fourth question, I believe that the right of mortgage of building under construction should be eliminated after the right to use state-owned land is captured by the country. But the country should make some compensation because the value of land is added by the building under construction. Finally, the article have a brief explain of how the bank to avoid the risk of the mortgage of building under construction.