The Risk And Law Prevention On The Mortgage Loans Of Real Estate

With China's housing system reform and the rapid development of real estate industry, commercial Banks gradually in practice started to handle personal housing loan guarantees, thus mortgage system to introduce from Hong Kong. This guarantee solution homebuyer current funds difficult, promoted the real estate developers sales, accelerat the real estate development fund operation, expanded bank financial institutions, such as the loan business, already become developers, buyers and bank, widely accepted a financing guarantee mode. And has become our country housingsystem reform process indispensable means, but because our country to "mortgage" legal definition is not clear, leading to the present no matter from theory and practice in chaos, causing the individual housing mortgage market disorder. Meanwhile, it as a means of financing, throughout the mortgage during various situations and unpredictable various artificial or accident happened to loan bank, buyers and developers under huge risks in China, and personal housing mortgage theory and legal system, the lack of further increased the risk. Therefore, the effectiveness of the transfer, the relation between risk scattered parties so as to promote the healthy development of mortgage business, even relates to one country estate financial markets of security and stability. So, bank, thedeveloper and the risk and buyers in the mortgage legal protection becomes an important research topic. The main content of this article are as follows:The first part from the mortgage etymology, analyzes mortgage system in America, Britain, Hong Kong, mainland development course and characteristic, through the comparison analytic method defines the mortgage of the legal nature, it is distinguished from real estate mortgage, right impawn, conveyance surety, is a kind of new-type financing guarantee mode. Combed the mortgage of all sorts of legal relation of building business relationship, including mortgage relationship with key research, it is concluded that the two are independent of each other relationship than master-slave relations.The second part from risk sources, we analyzed the bank,development and buyers in the mortgage facing in all kinds of risk. Such as buyers of credit, developers of false mortgage and fraud on bank risk;Developers of breach or defective delivery to homebuyers pose risks, Developers have joint guarantee responsibility produce buybacks, recover the risk, etc.The third part in every subject the risks, put forward to various risks preventive measures. Such as:improve the personal credit system, Introducing housing mortgages loan securitization mechanism, Give full play to the role of intermediary agencies, Perfect commodity house advance notice registration system and play the role in the lawyer, Improving the "mortgage cooperation agreement," commodity house pre-book contract", etc. Through the above measures effective shift, spread the risk of tripartite balance tripartite subject, the interest, placing mortgage can be benign development.The fourth part introduces foreign advanced cope with mortgage risk, such as the system try setting new coverage, establish special guarantee agencies, introduce the mortgage securitization and so on, we can China's specific conditions in combination with the premise of reference for our country to temporally commercial mortgages system innovation, and gradually perfect our mortgage system.This paper analyzes the main parties in the mortgage process has to face a variety of risk, and proposed in this foundation the reply various risk prevention measures, and introduces the experiences of developed countries. Owing to space and time limit, this paper has to avoid inaccuracies, in the later study author will be further improved and perfected.