Study Of Real Estate Mortgage Legal Issues

In the 90th of 20 century, mortgage comes into mainland from Hong Kong. With the revolution of the commercial building .As being a financing guarantee of housing, mortgage is revealing the validity itself since it appears. However, being a new thing in our country, the rules of mortgage, up to today, are not perfect, which leads to be inconvenience and dispute, and gives rise to many questions: on the one hand, the rights of bank are especially short of protection besides other clients, on the other hand, housing spending has been a lot top our country, mortgage of commercial building is taking an active effect in it .The experts have been discussing charge of real estate loan, they have not studied the mechanism and operation of mortgage of commercial building ,and have a divergence with the nature of it .In this article ,the author analyses the question of mortgage of commercial building in our country on the basis of comparing the theory of mortgage in common law system with the theory of alienation surety in Roman law system. There are four sections in this article and about thirty thousand words in it.Section one: Origination and development of mortgage system. In this section, the author mainly introduces the history, evolution and revolution of mortgage in common law system, at the same time, the author states the present conditions and improvement of mortgage of housing in Hong Kong, and provides a theory base to the mortgage of commercial building our country.Section two: Legal nature and force of mortgage of commercial building in china. In this section, the author divides the mortgage of commercial building into two kinds of pattern such as mortgage of anticipative commercial building and concrete commercial building. The author points out that there is no more different between mortgage of anticipative commercial building and concrete commercial building except the modality of guarantee subject matter, and agrees that the rule of alienation guarantee in civil law system can be a basic theory of mortgage of commercial building in our country. Meanwhile, the author analyses the interior and exterior validity of mortgage, and claims that the interior validity of mortgage of commercial building is relationship of rights and responsibilitiesbetween mortgagee and mortgager. While the exterior validity of it is the rights and responsibilities of the third part excluding theSection three: Legal relationship of mortgage of commercial building. In this section, the author analyzes the all sorts of relationship of law with respect to mortgage of commercial building, and thinks the legal relationship of mortgage of commercial building is obviously different from the legal relationship involved by mortgage of housing. Legal relationship of mortgage of commercial building is only a relationship of surety which clients include purchaser and bank. Meanwhile, the author analyses the change of legal relation among mortgage, and gives some proposals about establishment of security interest, and realization of mortgage right from legislation.Section four: Risk and protective measurement of mortgage of commercial building. How to transfer and disperse the risk of bank is not only relevant to mortgage of commercial building but also the stability of currency market .The author thinks that it is important to analyze the risk of bank in mortgage of commercial building, which we can take some protective measurement to protect the creditor right of bank.