| Mortgage, a way of purchasing house through circulating money with the bank and widely practised in developed countries and areas is characterized by providing what is purchased as the guarantee of the loan. At present, mortgage, performed though out our country like a raging fire has made great contribution in promoting and developing the financial market of real estate industry. But its mechanism of operation hasn't been clearly defined, therefore, a series of problems have risen. Some of them are in some way very serious. This article aims to better the legal system of mortgage and lays the foundation of regulating the market of mortgage.This article consists of five parts as following:Mortgage of uncompleted building was originated from the Common Law and the Law of Hong Kong, so the paper probes into its meaning - the transformation of the specific property right ; when the debtor fails to perform his duty ,the creditor can obtain the title determinately; the debtor enjoys the right of redeeming the collateral security through fulfilling his debt, the creditor has the obligation of returning the property at the same time .Secondly, the author summaries its essential feature on the practice of the real estate mortgage hi the mainland of China - the target of the mortgage is a kind of expective interest ; the mortgage is a kind of guarantee which is settled through making over the interests in expectancy ;the risk of the mortgaged uncompleted building should be borne by the realty company instead of the mortgagor ; the phase of the mortgage ; mortgage is realized in a particular way .Thirdly, on the basis of analyzing the legal nexus that is involved ,the paper points out that the legal nexus of the mortgage is just between the mortgagor and the mortgagee. Having different versions at home about the legal nature of the mortgage, so the author has introduced various kinds of views briefly at first in the second part. Having expounded the legal constitution, origin, meaning etc, the author draws a conclusion about the essence of the mortgage - the transferring guarantee, which is in contrast to the popular opinion that mortgage is charge or hypothecation ,exactly speaking ,what is transferred is the mortgager's expective right to the ownership. Secondly, why mortgage becomes a kind of prevailing way of purchasingthe house lies in its rationed financing mechanism,making each side that participates in the mortgage benefit a great deal-solving the problem of the mortgagor who is short of funds; reclaiming funds earlier and scattering the risk of investment ;gaining profits as well as opening up the market of investment.In the third part, the paper, first of all, presents a brief account about the basic procedure of establishing the mortgage and its contents of the contract so as to better the mortgage system. Secondly, though the transferring of the title is nothing but a guarantee, for fear of the mortgagor's dealing with the right and interest that are mortgaged, the paper carries on the discussion of the public announcement and provides some suggestion on how to better the present method of public announcement.The interior effect of the mortgage is determined by the legal nature and constitution-the range of the creditor's rights that are guaranteed; the range of the target which is in the power of the mortgage; the rights of the mortgagor; the rights of the mortgagee. Since the mortgage is registered, it produces external effects: the mortgagor and the mortgagee can't manage the uncompleted building at their will, and especially emphasizing on the problem of re-selling the house that is still under construction by the mortgagor; both the mortgagor and the mortgagee's creditors have no right to bring a coercive execution against the uncompleted building.The risk that comes from the realty agency really exists and the realty agency always goes wrong indeed, so it's a character for the realty agency to take the responsibility of guarantee in the mainland of China .In connection with this p... |
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