Legal Issues Several Second-hand Housing Mortgage

Second-hand housing mortgage problems involve security legal system which was formed in the background of the development of the market economy. At the beginning of the reform and opening up, the development of economy followed the principle of "invigorating circulation". Therefore, at that time paying no attention to ownership but to circulation in civil law system, that is:law of obligations, contract law and other laws regulate the circulation of property relations were paid attention earlier, but laws regulate the relationship of property ownership weren’t gotten the attention they deserve, as a direct result of the real right legislation lags behind. After entering the1990s, debt chain was more and more seriously in our society. It made mortgage problems become the focus of attention in academia and practice. It shows the realization of the rights is complicated, and especially, legislation and judicial actuality that second-hand housing mortgage relied on had many deficiencies. Therefore it is necessary to targeted put forward the perfect measures, so as to promote market transactions and maintain relevant rights and interests.Though laws related to mortgage in China were made referring to those of economy developed countries, but the mortgage guarantee function was difficult to play because adhere to the land may not be private which is one special feature of mortgage system in China and resulted in the ownership of land may not be mortgaged, the object of the mortgage only be land usage right and house above it; there are serious problems of debt chain and bank bad debts which result in the legislation of mortgage system emphasizes the protection of creditors, but not as a whole consideration. During the implementation of the "guarantee law" in China, many problems appeared. For these problems, it is necessary to in-depth summarize and research from the perspective of theory and practice. As the current judicial practice in our country, the legislation on mortgage still unavoidably has defects which can’t be ignored when we study the mortgage problem, such as real estate mortgage securitization, repetitive mortgage fraud and etc.It’s easier to find system theory and practice need to be improved, if making system research and practice consideration for second-hand mortgage in the sense of improving legal concept and enrich juridical practice. Laws and regulations of second-hand mortgage related to marriage and family are quite perfect, but in practice, many legal disputes were caused by the special relationship of parities. We can see clearly, from problems exist in collective land using right, usufruct rights can not get effective guarantee when it be mortgaged precisely because the boundaries of the collective land rights is not clear. Discussions of space rights and other topics which come from relevant legal problems of underground garage (place) are less involved in laws and regulations, furthermore are more difficult in practice.In view of the current way that local governments issue its own detailed regulations has damaged the transparency of law and people’s right to know. It’s necessary for us to compile one special chapter to regulate second-hand housing mortgage legislation so that ease the present situation that is there are too many disputes in our society. Furthermore, we shall use secondary housing mortgage as a powerful breakthrough to enrich and perfect the legal system of real estate and to promote the establishument of unified real estate law. Only correct use and grasp the mortgage right, can accord with the needs of the legal construction, and with the inevitable trend of the market economy development of our country.