Bank Mortgagee Of The Legal Issues

The realization of hypothec is one of the core contents of hypnotherapy system. It's not only the uppermost effect of hypothec, but also the uppermost right of the hypnotherapy person. Market Economy is Legal Economy. The legislation and theory research on the realization of hypothec have been developed to a relative high level in the countries and districts where market economy has been highly developed. Our country is still in the primary stage of socialistic market economy, not only the development of the market is not mature, but also the law system which serves as protection means is not perfect, the legislation on the realization of hypothec is still feeble, which is far from the demand of economic development and practice, and cannot fulfill the realization of the proprietor.Mortgage loans account for the majority in bank loan practice. Whether or not the hypothec is quickly and conveniently fulfilled determines the capital-return and loan assets security. Presently state-owned commercial banks bear large amount of bad debts is to some extent linked with the unfulfilled hypothec.The thesis studies the fundamental theory of the realization of the hypothec, examines the legislation of it home and abroad, and analyzes several issues that affect the realization of hypothec of banking in China. The thesis falls into three parts:The first part is the fundamental theory of the realization of the hypothec. The author compares the various notions of the hypothec given by scholars home and abroad, and put forward his own definition in this part, and introduces mostly the conditions and approaches to realize the hypothec. The fundamental condition to realize the hypothec is the title of property is due but not cleared. The realization of the hypothec varies from country to country in legislation aspect. The author compares three foreign legislation mechanisms as to the realization of the hypothec, namely self-protectionism, legal protectionism, and the combination of the two. The author proposes the last approach is the best that China should adopt. The thesis discuss thethree approaches to realize the hypothec in detail, namely, discount, auction, and sale, among which auction is the major subject to discuss.The second part discusses the problems in realizing the hypothec. It analyze several problems that affect the realization of the hypothec in banking practice, which include (1) the condition limitations to realize the hypothec. The fundamental condition to realize the hypothec is the debt is due but not cleared. Yet the expire date is not rigid and the hypothec is entitled to realize it prior to the expire date. (2) monotony of the realization of the hypothec. Mortgage is less to be disposed through negotiation and the lawsuit is the common way to dispose the mortgage. Yet the lawsuit process is time-consuming so the time and fee cost is dear, thus hinders the quick and convenient realization of the hypothec. The creditor should have the right to claim compulsory lawsuit settlement. (3)The method of realization of hypothec is inadequate. Only three methods such as convert into money, auction, sale off are regulated by the existing law, it is difficult to meet the demand of the development of market economy. More methods should be regulated by the law, and allow the related person to decide other method according to his condition. (4) The conflicts among the laws affect the realization of hypothec. The most outstanding expression is that the regulations on the realization of hypothec among the bankrupt by policy in state-owned interprises are conflicted with the existing laws such as bankrupcy law and warrangate law. (5) The inadequate of Retrospect force affects the realization of hypothec. Although the ownership of the guaranty changes, the hypothec would not be affected, mortgager still can run down the mortgage and exert his hypothec. (6) The privilege of preempt affects the realization of hypothec. Construction legal hypothec and revenue privilege have precedence over the mortgager without registration denies the principle of declaration of ownership. The privilege of preempt also should be regulated by registration and declaration system. (7) The disposition of guaranty by other creditors affects the realization of hypothec. Ordinary creditor has the right to apply for court disposition over other's guaranty, but without the programmed regulations and protection on the interest of mortgager, makes it difficult for the mortgager to getcompensation first. (8) The effect of leasehold on the realization of hypothec. The existence of leasehold often leads to a low auction price of guaranty or no buyer, makes against to the realization of hypothec.The third part is about the perfection of the law system over the realization of hypothec in the banks among our country. The limitation of our existing law over the realization of hypothec is that it neglects the demand of the mortgager's convenience on realization of hypothec. The author thinks that we should perfect the law system over the realization of hypothec in the banks among our country from legislation and practices. In the aspect of legislation, we should perfect the conditions and methods of the realization of hypothec, admit and enforce retrospect power, regulate privilege of preempt and leasehold, etc. In the aspect of practice, we can advocate to make notarization with force, regulate mortgage system.