On The Divorce Division Of Mortgage Housing

With the development of modern society and the transition of the consumption idea," mortgage " purchase has become common people to solve the housing problems of the mainstream way, and for the " mortgage " housing processing will inevitably become the hotspot in divorce cases. But this hot spot currently facing the imperfection of legislation and the concept of conflict, the " mortgage " housing in the divorce dispute processing has gradually become troubled judicial practice difficult problem.In this paper, based on the marriage law and judicial explanation for the case of divorce " mortgage " housing processing rules, in its analysis of current in the process of social development and application value, through the empirical analysis of China’s judicial practice for mortgage housing ownership problem identification and housing value added portion disposed from the court decision, different results on existing law system and judicial interpretation in the malpractice of existence, is divided into three main parts to discuss.The first part of the Anglo-American law system of mortgage system and our country "to the mortgage " housing system comparison, through the investigation of the Anglo-American law system of mortgage system and our country "to the mortgage " the historical development of the system, the two systems have a preliminary understanding, carries on the analysis, reveals the " mortgage " involving legal relationship for housing mortgage segmentation of the related problems, focuses on the analysis of the case of divorce " mortgage " dividing the house couple interests relationship.In the second part, the legal system of our country for " mortgage " housing processing related laws and theories, put forward the judicial practice in the housing mortgage processing opinion and problem, think " mortgage " real can follow the divorce is obtained ownership, different treatment. And on this basis, further analyzed in different circumstances," mortgage " real home. The third part, is mainly to resolve the judicial practice "to the mortgage " real segmentation problem. According to the property right system and the system of property between husband and wife and the contradiction between the legislative proposal, secondly, according to the second part of the divorce of mortgage purchase housing has obtained ownership classification, distinguish the different situation, discussed the specific segmentation way, and analysis of the " mortgage " real marriage after a value-added component of the legal nature and the specific way of handling. I hope to be able to solve the relative difficult problems in judicial practice, to make a contribution.The innovation of this article is mainly reflected in, based on the existing legal system and the related judicial interpretations for " mortgage " house legal research, put forward "to the mortgage " housing in how ensuring the interests of banks, non registration against the house to the bona fide third party protection as well as " mortgage " housing division puts forward some treatment suggestions; the deficiency is the current legislation has been relatively perfect, for legal innovation content relatively less.