Empirical Analysis Of China's Housing Mortgage And System Architecture

The thesis is based on the practice of house-mortgage in China. The author analyses the nowadays arrangements in practice thoroughly and realistically, and judges them in a theoretical way, then develops the idea on the structure of the house-mortgage law system. In this system house-mortgage is a new type of security and it is endowed with some special rights, such as the relief approach through consultation, the restricted-right to disposal and the deposit of title deeds. The method of interpretation, comparative law, science of system and economic analysis is adopted in this thesis.This thesis consists in four parts besides the introduction.Part Ⅰ. The realistic looking to the practice of house-mortgage in ChinaEither the word "mortgage" or the law system of house-mortgage is new thing. This word comes from the civil law system. There are quite o lot of different interpretation when it comes to the comprehension of the system. However, the house-mortgage is used in many banks as security for the loan. The author collects some model paper of the contract of house-mortgage in practice.Part Ⅱ. The analysis of legal relation in house-mortgageThe words "mortgage" and "hypothecary" are used as two alternative words in practice, so the essence of "mortgage" should be a type of security other than an activity of financing. The articles of those model paper discover that: the house-mortgagee is the creditors (the banks ) and the house-mortgagor is the debtors ( the buyers ) . The object includes the property and the future property of the house. The system content includes the relief approach through consul tat ion, the restricted right to disposal and the deposit of title deeds. The author expounds that the object of under-constructing house-mortgage is the future title of the house other than obligation relying on the contract.Part Ⅲ. The theoretic examination of house-mortgage in ChinaThe foregoing paragra phs have discovered the informal arrangement about house-mortgage which forms through practice. And then the informal arrangement is judged on the basis of its legal value and practical feasibility. Firstly, the author ascertains in the essence of the house-mortgage in China and examines the special rights which form through the practice. Secondly, the author discusses the relation between house-mortgage and hypothecary, pledge and other two type of warranty. Thirdly, the author analyses the conflict bet ween mortgage and the building-contractor's hypothecaria. Lastly the relation between house-mortgage and insurance is discussed.Part Ⅳ. The constructing of the house-mortgage law system in ChinaIn this part, the author suggests that it should be a new type of security other than "mortgage" in civil law system or "hypothecaria". Those doing requested by the practice should be admitted.