| The word mortgage stems from a French Law term meaning “deadcontract”, meaning that the pledge ends (dies) when either the obligationis fulfilled or the property is taken through foreclosure. Give rise to thenature of the mortgage loan, which is a home buyer can obtain financing(a loan) either to purchase or secure against the property from a financialinstitution (such as a bank or credit union), conflicts with the principle ofmarital property distribution in China, dividing the housing is already oneof the focal problems in divorce cases nowadays. In order to meet theinevitable requirement that the law shall clarify the issue of propertyrights, the Supreme Court has issued the third expansion of certainproblems about applying the Marriage Law of the PRC, which has led toextensive interest and disputes. From the author’s point of view, theimplement of the third expansion could not be able to solve the issuesrelate to the division of mortgaged house. This article discusses the mainproblems encountered in the judicial practice by dividing into fivechapters: Chapter one introduces the background and purpose of the study. Dueto the conflicts between the principles of marital property and the patternof real right alternations, mixing with the imperfect laws, economicinterest and emotion facts, the division of mortgaged house in divorcingcases becomes a troublesome problem. The problems encountered individing three different kinds of mortgaged house will be pointed out.Chapter two studies the division under the situation that one party paiddown payment before marriage and the couple jointly pay off the loanafter marriage. This chapter also defines the individual property andpoints out the difficulties during the applying of the laws and regulations.Therefore, the payment of the loan shall be taken into consideration in thepractice, and the judgment shall ensure the party who has noaccommodation enjoys the right of habitation.Chapter three focuses on the division of value-added part of the jointlymortgaged house. Based on the academic debate of mortgaged house’svalue-added conception, expounding the fundamental character of theadded value of mortgaged house’s is the couple’s common property,pointing out the requirement of improving the value calculation methodin practice, at the same time, making out the point that value-added partof mortgaged house should not be evaluated only by the duration ofmarriage.Chapter four is about the division of mortgaged house which is paid by the parents. This chapter will identify the ownership of mortgaged houseunder three situations, down payment paid by one party’s parent beforemarriage, after marriage, or paid by both of the couple’s parents.Suggestions about division will be given thereafter.Chapter five suggests to establish and perfect promissory propertysystem of mortgaged house division in the legislation in China, and tointensify the mediation of the mortgaged house division cases injudgment, and prudent examining the application countermeasures ofsegmentation protocols. |
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