| This text is on the research of the relevant issues on setting up the system of the conveyance security of the option on the commodity house in our country. In recent years' practice of real-estate trial, I often feel that there are some bugs in our present assurance system which has not been able to meet the demands of the development of market economy when confronted with extensively applied pre-sold commodity house mortgage. Thus I propose to refer to overseas conveyance security system that is a practical, flexible and effective way of security, and found the conveyance security of the option on the commodity house.The full text has six parts in all.Part 1 briefly explains the relevant questions of the present mortgage system of commodity house, and I think that relevant law should be legislated as soon as possible to standardize the mortgage system. First, after analyzing the current situation of real estate mortgage system of pre-sold commodity house and comparing it with the mortgage system of Hong Kong, I think that the inland mortgage system of pre-sold commodity house has been transformed and is now very different to Hong Kong's, although it comes from Hong Kong's. Second, having introduced several kinds of main views of academe on the nature about the inland mortgage of pre-sold commodity house, I believe that the mortgage of pre-sold commodity house in practice is similar to conveyance security, but not same to it. Third, without definitive regulations on the mortgage of pre-sold commodity house in law, inland courts meet with a lot of problems when trying mortgage disputes of pre-sold commodity house, for example, how to make certain the relationship between contract of mortgage loan and trade contract of pre-sold commodity house, how to ascertain the litigant status of the bank, how to deal with the mortgage object and how to decide the priority sequence of every parties etc..Part 2 introduces the origin of conveyance security, and I hold that the conveyance security is non-typical assurance system of property. This system stemmed from the trust behavior theory of Roman law by countries of Civil Law System, such as German and Japan, absorbed the trust factors in Teuton Law, then developed gradually in to being through hundreds of years of practicing and testing.Part 3 introduces the relative systems of the two main systems of law. Firstly, through analyzing the history and current situation of the mortgage in British Law, it points out that mortgage experienced the evolvement from lien to conveyance security of common law, and the introduction of registration system, the principle of appraising at the current rate and liquidation principle, has brought British mortgage a trend developing to conveyance security and made the concept of conveyance become indifferent gradually. At the same time, this part also introduces the mortgage system of Hong Kong. Secondly, it detailedly presents the development and evolvement of the conveyance security system of German, Japan, Taiwan and points out the conveyance security is an widely used security way besides statute in these countries and area, which is adjusted by customary law. Part 4 interprets the basis on which the inland the system of the conveyance security of the option on the commodity house is founded. First, I review it in the respect of economics and think that the foundation of this system is the need to regulate our mortgage practice and promote the development of real estate, which is a design of system according to the economic benefits of creditors and debtors. With obvious financing function, it makes the benefits of three parties --developer, buyer and bank--be in the best mix. And its effect can be summarized by "Raise money widely, Reduce risks, Stimulate consumption", and it is in favor of the development of our economy. Second, reviewed in the respect of law, based on the current situation of the mortgage system of our country and the needs of the social and economic life, it is necessary to introduce conveyanc... |
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