On The Mortgage Of China's Legal System

In view of the mortgage system in our country's present situation, it is necessary to carry on the elaboration to our country's mortgage system. "Mortgage", which origins from the British and American law, mainly refers to one kind of security form of the debt in the property buying and selling. The mortgage system emerged on the base of "the anticipated income theory"of the western economics in the American and British law and it experienced three stages in common law of mortgage, in equity law of mortgage as well as in modern law of mortgage, which gradually evolved to become the mortgage law system in modern British and American law; in the traditional British and American law, the real estate mortgage had differences with real estate charge in aspects of writing,concept,nature, etc. "Mortgage"in our country, which was translated from the British and American law and spread to the mainland after Hong Kong, has had unique meaning under our country's specific socio-economic background. Our country's mortgage system was also produced on the base of economic developments in real estate industry and financial industry, whose main three bodies are the buyer,the property developer and the mortgage bank; the content includes three basic law relationships, which are the house buying and selling contract relationship,the borrow contract relationship and the charge security relationship; the purpose is to purchase the property; the target of the real estate buying and selling contract in the mortgage has identified with the one of the charge security contract; the mortgage becomes effective after the charge security target is gone through the registration form by the subjective government institutions; the mortgage title can be realized by receiving first recompenses. For the law nature of the mortgage system in our country, three theories exist in the legal science, which are theory of proprietary rights reservation,theory of charge and theory of right charge, but these three theories can't all accurately and comprehensively indicate the complete law relationships with which the mortgage system involves. The mortgage system is a kind of loan security system existing in our country, which has unique legal structure and is hard to determine its legal nature with the present security form. The property buying and selling, on the majority, is dealt with in way of pre-selling the future-house and the future-house mortgage has unique meaning,legal characteristic,legal nature and legal potency. According to "the General provisions of the civil law","security law", combined with legal science theories and judicial practices, the condition for the mortgage in the charge title exercises is that the borrower is unable to repay the full amount scheduled in the mortgage borrow contract agreement to a certain degree; the methods in the mortgage title exercises include evaluating in terms of money with collaterals,auctioning collaterals,selling collaterals, of which auctioning publicly the collaterals is the best way; the charge title potency in the mortgage coincides with collaterals set before the charge title, but it is inferior to appurtenants set after the charge title. Our country should as soon as possible strengthen the mortgage law system, coordinate mutually contradictory laws,laws and regulations as well as rules and regulations and define the law nature of the mortgage system so as to make it adapted to the economic developments in our country's present situation and to better regulate movements of the society.