Study Of The Legal System Of China's Real Estate Mortgage

With the foundation of market-oriented economy and the advance of all-sidedbuilding up of a harmonious society, China's traditional housing allocation systemdisappears from the stage and personal housing system trends tocommercialization step by step. Mortgage, a way of realizing "housing dream" formajorities, plays a vital role in our daily life.Mortgage achieves the all-win among housing businessmen, banks andbuyers, which is demanded by national macro control, real estate businessmen,housing buyers, banks, insurance companies as well as security companies. Underthe current situation of so many dead or bad bills, banks regard mortgage as a verygood way of loan and strongly support its development. It is a trend that insurancecompanies shall join in and the loan of mortgage shall be secured. Mortgagesystem alleviates the shortage of capital, broadens the market and spurs on therelated industry. Mortgage seems to be the best choice for buying and sellinghouses.However, the word "mortgage" is still not used in the national laws, and nouniform definition is distinguished. For the law nature of the mortgage system inour country, there are two kinds of theory in jurisprudence, which are theory ofcharge and theory of right charge. However, neither of these two kinds of theorycan accurately and comprehensively indicate the complete law relationships withwhich the mortgage system involves. In this thesis, we analyze the legal nature ofChina's mortgage and compare it with the related systems. Since China'smortgage is anew form of guaranty of property rights, it is different from either themortgage in the Common Law or the guarantee on conveyance in the Civil Law,or the guarantee and the pledge in the Guaranty Law of P.R.C., even though it isclosely related to them. We also discuss some legal issues. Taking into account allthe analyses above, we put forward some countermeasures to perfect China'smerchant house mortgage system, including strengthening legislation, perfectingthe loan security and insurance system for merchant house mortgage, issuing thesecuritization of the merchant house mortgage loan and so on. Only if China's mortgage system is made perfect in legislative level, will wedecrease the legal dissentions, reduce the cost, economize social resources,promote the construction of law and build up a harmonious society.In this thesis, there is an dementary discussion on the theoretic and practicalproblems concerned with the merchant house mortgage in general. First of all, thehistory of the mortgage system is reviewed and a comparative analysis onmortgage among the common law, the Hong Kong law and the Chinese law ismade. We also show the major differences among them. Then, by researching onthe definition, legal relations and legal character of mortgage of merchant houses,we believe that the mortgage in Common Law has been changed greatly in thepractice of China. Finally, after the discussion on the current problems which arecaused in practice, we put forward some reform suggestions. The related lawsshould be made perfect and smooth. We should set up a pre-register system ofmortgage, reform the insurance system of it, establish the securitization system ofit and build up the related subsidiary systems, such as the agency service system, inorder to help China's mortgage progress smoothly.