Invalidation Of State - Owned Land Use Right And Protection Of Mortgage

The use right of state-owned land should be set in accordance with the law, the parties to fraudulently acquire state-owned land use right, right setting, the state can make punishment according to law on the right to use the land, and to recover the use right of state-owned land has been set. However, if the land use right people before land were recovered, with the certificate of the right to use the land register records and issued by the government of the land, to set mortgage to a bona fide third party the right to use the land. So, the use right of state-owned land to recover the behavior is bound to affect the mortgage negative on the existence and the realization of the. The law of our country on this situation do not specify how to deal with, so prone to disagreement. To define the relationship between the state-owned land use right and the mortgage right protection setting, to clarify the different specific situations of setting the use right of state-owned land in our country, and by the different standard category, such as according to recover the land use right according to the legal nature of the different, divided into public law and private law to recover back on. To recover the public law, as a private right mortgage not against national public power implementation according to recover the loss behavior, then withdraw behavior can lead to mortgage (no subrogation object). To recover the private law, then produces the two kind of private right against, recover the exclusive action is restricted by the state according to the mortgage property. Also according to the land use rights to recover land use rights in the process, whether the person get compensation or other subrogation as the division standard, divided into the back of compensation and no compensation to recover. To recover a compensation, the realization of the mortgage mortgagee can guarantee real right of subrogation right. At the same time, the judicial practice in the can in defrauding the income of land use rights on the establishment of the mortgage right is also controversial. This problem, need to study whether there is this kind of situation for the mortgage right of bona fide acquisition system room. In this paper, based on the specific case in judicial practice as the guide, through the analysis of the use right of state-owned land setting and mortgage rights protection, finally draws the conclusion of the case handling.