A Study On The Legal Problems Of Mortgage In Rural Homestead

With the development of society and economy, a number of peasants raise mortgage on the domestic house in rural China in order to financing, this kind of behavior has give rise to some important judicial problems. The Chinese government is adjusting the policy on the rural residential land use right in keeping with the trend of the time, but facing the legal dilemma situation. This paper will analyze 80-typical judicial decisions about this issue. The house on the rural housing land can be offered as pledge. This is the basic premise of this paper. The paper will discuss the legal problems with the house mortgage on the rural housing land from three aspects-the subjects of legal relationship, the range of collateral, the realization of hypothec.Firstly, the subjects of mortgage legal relationship cover the mortgagee and mortgagor. Natural person, legal person and the other organizations can turn into mortgagee. The mortgagor is divided into two types:the initial mortgagor who sets up the mortgage for the first time, and the assignee who sets up the mortgage again after the realization of the hypothec. The assignee will raise mortgage on the rural residential land use right only under the transferee permission.Secondly, considering the original right and the exertion of housing ownership, the house mortgage on the rural housing land should apply to the principle of’land transferred with house’and not’house transferred with land’. The housing ownership should not be for the mortgage under two cases:(1) the house on the rural housing land which is inheritance or legacy is used as collateral; (2) the urban resident who retains the house on the rural housing land uses the house as collateral. In addition, the common house which is used as collateral without the consent of all the other common owners is forbidden.Thirdly, the paper expounds the model of realization of hypothec and the term of assignment. For the point of the model of realization of hypothec, natural person and commercial banks can implement hypothec through agreement at a discount, but the other legal person and organizations can’t do so. The commercial banks should dispose the real estate in two years, the mortgagor can repurchase it. Natural person, legal person and other organizations can transfer the mortgage through the auction or sale. In this situation, the collective economy organization and its member enjoy the priorities of the purchasing right. Certainly, the latter takes priority over the former. For the term of assignment, it divides into two kinds of situation, agreed period and houses damaged natural period. At the end of the term of assignment, when the assignee belongs to the collective economy organization, he/she enjoys housing ownership and the rural residential land use right. If the assignee is not part of the collective economy organization, when housing ownership loses, the rural residential land use right should lose in accordance with the principle of "land transferred with house".