| The commercial housing mortgage is one kind of real estate service which domestic and foreign widely develops, is the behavior refers to the commercial housing home-buyer not to hope or cannot pay the funds completely, but pays to the bank loan, and buys the commercial housing hypothesis guarantee. Inland's commercial housing mortgage service was spreads in the 1980s from Hong Kong by way of the southeast coast area. In recent years, along with the real estate market's heating-up, commercial housing mortgage service also develop rapidly. The mortgage in the commercial housing business loan, already became the home-buyer's first choice payment method which needs to loan, the bank's most acceptable and widespread loan guarantee way. But it is noteworthy that although"mortgage"name and operation pattern was widely used in related business field in inland, the mortgage in the current law and in the commercial housing sales contract which promulgated by national organization, does not have the official acknowledgment and stipulated clearly. Presently, the swiftly development of commercial housing market of inland leads the commercial housing mortgage loan to enlarge unceasingly in the bank commercial proportion, that followed commercial housing mortgage loan legal dispute also unceasingly increases, but the flaw of related legislates cause the bank to be out at the elbows in handling with each kind of complex legal affairs, therefore, the risks of the bank mortgage loan outflow climbs. The outflow of bank mortgage loan, not only affects bank's cash flow and the smooth development of routine work, but also affects the stability of the entire financial system and even society. The"the financial Tsunami"of the world stems from"the loan crisis"of U.S, and"the loan crisis"of U.S stems from US mortgage loan primary market large quantities of secondary home-buyers not to be able on time payment. Thus it can be seen, the research on the bank risk prevention and control of commercial housing mortgage from the legal angle, has the vital practical significance and the theory value. This article through analyzing the mortgage connotation under our country current legal regime, illuminates the legal nature and the legal relationship of the mortgage; through analyzing the bank's risk of commercial housing mortgage under current legal regime and the origin of American loan crisis, puts forward the problems of bank risk prevention and control; through contrasting Hong Kong area and the foreign countries law and experience on bank risk prevention and control, proposes the bank risk legal prevention and control suggestion of consummating our country commercial housing mortgage.The first chapter elaborated the meaning of the commercial housing mortgage, analyzed the commercial housing mortgage's legal nature and the legal relationship in our country. The author first obtains from the stem of mortgage, introduces the meaning of mortgage in the UK-US legal system and Hong Kong area, and put forward the unique meaning of the mortgage in our country. Then according to our country's related mortgage legal norm, unifies the concrete mortgage legal acting, reveals the legal nature and the legal relationship of our country's mortgage, establishes the theory base for studying our country's law on the bank mortgage risk standard.The second chapter is key point of this article, studies our country law on the bank mortgage risk standard. First, through introducing the meaning and the characteristic of our country's bank risk, the author analyzed the bank risk's type under our current legal regime, proposed that the bank risks in the commercial housing mortgage may possibly caused by the behavior of mortgage main body, the imperfect of legal regime, the changes of commercial housing market. Next, unifying our country current law laws and regulations closely, the author highlight analyzed the problems of bank risk prevention and control in our country commercial housing mortgage: the flaw of laws and regulations, the imperfect of insurance system, the problems exist in the mortgage practice. Finally, through introducing the meaning and the origin of American loan crisis, reiterated the important meaning of bank risk prevention and control, searched the legal bug in our countries'bank risk prevention and control by contrasting way. The third chapter through introducing the bank risk prevention and control's experience and practice of the commercial housing mortgage in Hong Kong area and the related countries, the author proposed that adopts consummating legal prevention and control system, perfected insurance system, established and perfected mortgage loan securitization market, strengthened the importance and the feasibility on government macroeconomic regulation and control, corresponding to the bank risk prevention and control measure in the later chapter.The fourth chapter in view of the problems existing in the bank risk prevention and control of our country commercial housing mortgage, taking example from the advanced experience and practice from Hong Kong area and the overseas, proposed that our country must through consummating the legal regime of bank risk prevention and control, perfecting insurance system, implementing the mortgage loan securitization, strengthening government's macroeconomic regulation and control, thus consummates the bank risk legal prevention and control in our country commercial housing mortgage. |
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