Studies Of Rights Conflict On Mortgage Of Buildings Under Construction

The mortgage right as" the King of guarantee" plays anunparalleled role in the social and economic exchanges, expandsfinancing channels, fully realizes the use value of the property.The subject matter of mortgage almost is immovables, immovablesmainly refers to the real estate, and thus the real estate mortgageis the most common form of mortgage. Real estate as a kind, have aconstruction period, because of the needs of the economy, before thereal estate has been completed, the market players often set it tomortgages, which is the mortgage of buildings underconstruction(MBUC). MBUC, oppose to the mortgage system, is verynaive like a new-born baby, but with the development of economic andthe needs of the market, its usefulness in practice is already notto be underestimated. Our understanding of the MBUC is relativelylate, in1997, the Ministry of Construction promulgated the "Themanagement approach of mortgage of City real estate ", for the firsttime in the form of official legal documents to confirm the MBUC,thereafter, deepen its understanding in some regulations and rules.But the system of mortgage in our country started relatively late, development is not perfect; there are many problems in the MBUC intheory and practice. The author views of some legal issues in Chinain MBUC, on the basis of the previous work, proposed some superficialunderstanding, do not hope to distinguish himself, but only not tomake mistakes.Besides preface, this essay is divided into four parts:The first part, the general introduction on MBUC. This section,the author starts to begin with the buildings under constructionitself, makes a distinction between broad and narrow buildings underconstruction, and then come out of the broad and narrow sense of MBUC.Then, starting with the jurisprudence view, the author points outthe validity of MBUC. On this basis, the author compares the foreignlegislative provisions on MBUC, to know the differences between the"one doctrine" and "separatists"; combining with the current securedlegislative provisions on MBUC in our country, the author reachesthat our country adopts the broad sense on MBUC.The second part, the existent rights on MBUC. This section,firstly, the author describes three channels of financialintermediation in the process of real estate construction, pointing out that due to the three different financing channels, there arethree rights above on the buildings under construction, includingmortgage right, the contract price priority claim, the right ofpurchaser, as well as the issue of the conflict of rights. Then, theauthor discuses the nature of the other two rights, to provide atheoretical basis to the solution for the rights conflict in the nextpart.The third part, the rights conflict on MBUC. This section, theauthor carry out combing the existing legal provisions to resolvethe conflict of three rights, pointing out many problems of theseissues. Explore the reason is that the legal provisions in force onlyfrom the policy considerations, but not to resolve the conflict fromthe perspective of the institutional framework, the rights of thenature.The fourth part, the ways to resolve the rights conflict on MBUC.On the basis of last part, from the view of real estate registration,to resolve the conflict of three rights, the author puts forward someimmature proposal, including the establishment of a unifiedregistration system, the establishment of the register of construction in progress, the establishment of a registration systemof the priority claim of construction in progress and theestablishment of a convenient information inquiry system ofregistration of real estate.