The Legal Research On Reverse Mortgage

The aging problem is being more and more seriously in our country now.Providing for the aged have been a significant social issue,for the pension system is unsound.As an supplementary approach of pension,after working several decades,it has been proved good and efficacious.Reverse mortgage is applied to the old people who have rich house but poor cash.In order to get more money to enjoy a high quality life,the elders mortgage their house to the bank or other financial institution.After the mortgagee gone,the mortgager will possess his house.There are some miniatures of reverse mortgage in our country now,though they are not developing and using well.In this background,the author uses the sociological analysis, comparative analysis,economical analysis and so on methods to study the legal issue of reverse mortgage,for the sake of doing something to promoting this system in our country.This has four parts:The first part,the establishment and connotation of the concept of reverse mortgage.Just like establishing the Chinese legal concept of "reverse mortgage",we people should not use the native notion substituting before the localization.We must respect the origin system,then to further discuss the problem of local.Therefore,we use the "reverse mortgage" is more suitable and neutrality.As the same,the definitions for reverse mortgage should fall for it source,and respect its original meaning.Because of the capital flow is opposite to the traditional mortgage,it's called reverse mortgage.It refers to that,the old people who meet a certain age situation transfer their houses to the loan institution for a loan.After his death,or the agreed termination conditions occur,the loan institution can reach its creditor's rights for get the ownership of those houses.But,if the house value is much higher than the loan,the lender or his heir can get back the balance.The second part,the investigation of the reverse mortgage operates in other countries. The U.S.has the most mature system of reverse mortgage.It has designed of different kinds of productions for the different levels.The U.S.is very emphasis on the government's role to reverse mortgage,making a sound law system and other complementary systems.France had reformed its guarantee system in 2006,includ a major move is introduced the reverse mortgage to the old citizens.The most important thing is that,it also made a localization, named "pret viager hypothecaire".So,this experience is worthy of our reference.The third part,the feasibility study of implementation of reverse mortgage in our country. The author believed that the pension problem and the matured economic environment have offered the practical constitution for our country to promote reverse mortgage.At present,the phenomenon of "using house for pension" has an obviously difference to reverse mortgage, for the "using house for pension" is found on the creditor's right,but the reverse mortgage is building-up on real rights granted by way of security.The fact in domestic is that there is no real mortgage.The so-called housing mortgage in our country can be absorbed in our own legal theory.From pure legal theory,if we set up the reverse mortgage bases on mortgage, there should be no problem.Because the marrow of reverse mortgage is using the house transfer the money.However,from the perspective of practical significance,there are suspicions both the mortgager and mortgagee.Both hypothecate and mortgage is used for finance.For the mortgager,especially in reverse mortgage,the mortgager is financial institution,their aim is not for the mortgage object but getting back the loan in time.That is say,owing the property right is not necessary.So,it is feasible for us to establish the reverse mortgage bases on hypothecate.The forth part,constructing the reverse mortgage in our country.At present,the author thinks the timing of special legislation for reverse mortgage in our country is still not mature. We could enact administrative rules,even could make local pilot.Although the reverse mortgage is biased social security properties,ultimately it is a business of financial institutions.The legislation must consider all the interests conflictive point involved in,and pay most attention to the balance of all kinds of interests to realize the maximization of the interests of all parties.The incentive mechanism is the most suitable standpoint.The law is build-up on such a psychological basis that people will imitate others.Therefore,when we make the law of reverse mortgage,we have to consider effectively of our native culture and the behavior problems,and combining the practice.This is the basic to form imitative effect. Only the law and policy are designed well,such as commissioning of the bank as the loan institution,the government and insurance institution as the important guarantee for the department of risk aversion,clearing the rights and obligations of all parties,establishing and perfecting the credit system,pointing out the agreement risk,the reverse mortgage will have a broad market on the imitation effect.