Research On The Mortgage System Of Buildings Under Construction In China

With the development of our socialist modernization construction unceasingly thorough, the rapiddevelopment of market economy, the market demand for funds is growing, in the market economy plays animportant role in the guarantee real right along with the continuous development and improvement. Amongthem, the mortgage system as " a play a decisive role in the institutional guarantee kingdom ", which canensure the safety of market exchange, and can give full play to the use value and exchange value.Not the chattel mortgage in the guarantee plays a more and more important role. Real estate as a fixedmain mode of production, is the most common collateral. Under this background, in the building of thecivil law tradition mortgage is the mortgage system of breakthrough and innovation, is a development ofthe traditional mortgage system in civil law, because of its unique advantages of its own, can achieve theturn material resources to good account, to meet the actual demand of real estate developers to invest in theconstruction of the funds required, therefore in the construction of buildings mortgage in social practice isalso showing a wide range of trends. However, due to the development of China’s real estate mortgage isnot perfect, and secured in the construction of buildings exist problems specific research on inherent andtheory, secured in the construction of buildings still exist in the theory and the practice of some unscientific,imperfect. How to solve the legal problems of our country buildings mortgage, perfecting the constructionof buildings in the mortgage system, is still a valuable research topic.Research on the mortgage system of buildings under construction in China, first of all to the definitionof buildings and its legal nature, which is the basis and premise of buildings mortgage legal problems;secondly, the definition of secured in the construction of buildings, and analyzing the differences in theconstruction of buildings and general mortgage mortgage; finally, elaborates the necessity and thefeasibility in the construction of the building mortgage."Property law" stipulates clearly that the180th buildings can be secured, but secured in theconstruction of buildings and how to set up, how to identify the collateral value in the set, differentpractices a. In practice, there are a few real estate developers use the vague, buildings collateral value lessinput, to the creditor provides collateral under construction building, the formation of sodden poop deck,thereby affecting the relative person’s legitimate rights and interests. Starting from the provisions of China’s existing legislation recognized in the construction of the building of collateral value, find the existingproblems, the author also puts forward his own opinion:(1) to perfect China’s buildings mortgageregistration system: clear the nature of buildings mortgage registration, the establishment of the real estateregistration system, establishment open sound and safe and convenient registration information querysystem;(2) improve the assessment legislation, strengthen the supervision of the evaluation:"the legislativeprocess asset evaluation method" in custody, should be clear about the real estate valuation, concentratepower, to exercise unified, in order to realize that in the construction of the building mortgage collateralvalue.To build on the registration of mortgage in the building, although China’s "property law" stipulatesclearly that the eighty-seventh buildings mortgage right shall be established since the registration, manydomestic scholars still argue buildings mortgage registration is only the advance notice registration,registration does not certainly have built mortgage in the building, only in the building after completion ofmortgage can be established. From the "property law" point of view, take our country in the legislation isthe registration validity doctrine, namely in the building mortgage to the registration of its elements. Here, Iagree with the construction of buildings in the mortgage right shall be established since the registration.China’s current laws are not in the construction of the building mortgage registration regulations, butscattered provisions of relevant laws and regulations in the mortgage, but the mortgage registration ofbuildings there are still unclear, the nature of registration is not the chattel mortgage registration system cannot be fully applicable to the construction of buildings in the mortgage registration, the lack of unifiedmortgage registration department,"the mortgage contract records" mortgage registration mode can not playa role of publicity, in view of the above problems, the author mainly from the three aspects of his perfectsuggestions are proposed:(1) clearly in the building property mortgage registration: registration ofmortgage property built in buildings is the registration of advance notice registration, rather than;(2) theestablishment of the real estate registration system: from the point of view of the efficiency of registration,can consider the existing legislation to cancel in the construction of the building mortgage registration, torecover the housing management department of the registration authority, some only based on "mortgageregistration" land use rights on the adjustment, has become a new on the building mortgage registration;(3)establish a secure and convenient public inquiries registration information system: including the society as a whole range of natural persons and Legal person can apply for the query registration information, and theapplicant can query the information content should not be restricted, it can apply query immovable propertyregistration information.The mortgage system belongs to the category of property right, the system itself is the valuemaximizing the utility, in the use, rather than making it all. Therefore, to demonstrate the utility of turnmaterial resources to good account, from theory and legislation are not rejected repeated mortgage andmortgage. As housing mortgage registration and mortgage of land use right registration authority is notunified, in practice in the building mortgage and priority of claim in construction projects, commercialhousing Yugouren expectation of conflict of rights, the pre-sale of commercial housing mortgage,mortgaging the right to use construction land have occurred from time to time."Property law" establishedon immovable property mortgage the registration validity doctrine, so practice does not exist without theregistration of mortgage of real property. In the construction of buildings in the mortgage right and relatedrights conflict, mainly by setting up between a number of mortgage priority order in the same building ", itsrules are established according to the sequence of registration of mortgage priority order--register firstpriority to register in the latter". To effectively understand the "property law" spirit, to solve the existingproblems in the construction of buildings in the mortgage.