Research On The Conflict Between Mortgage Right Of Building Under Construction And Other Priority In Civil Right

The current law in our country on mortgage of building under construction and theopinion of which in theoretical circle is imperfect, which lead differences in practice. Thispaper, based on a dispute of mortgage right of building under construction, analyses the rightconflicts in mortgage of building under construction and perfects the mortgage registrationsystem of building under construction.This paper discuss the issue in the following four parts, about20thousand words.The first part introduces and analyses a dispute of conflict mortgage. This case, throughfirst instance in Guizhou Provincial Higher People’s Court and second instance in theSupreme People’s Court, has gotten the same verdict. The focus in this case is on themortgage contract effect of construction in progress and the conflict between mortgage rightand subscriber’s right.The second part is an overview of the legal issues involved in the construction mortgagecase. The mortgage of building under construction refers to the mortgagee without losingpossession, gives his land-use right and the property of building under construction asmortgages to guarantee to realize creditor’s right. The mortgage of building underconstruction has several characteristics such as uncertainty of collateral, certainty ofmortgagor, specialty of credit assets and periodicity of mortgage. The theory about mortgageof building under construction in China is build on real estate development principle, whoseadvantage is to solve the right source problem, improve the registration efficiency; whosedisadvantage is to limit the exercise of ownership of the buildings and not to maximize itseconomic value.The third part analyses the mortgage right of building under construction and the conflictin related civil rights. Conflict of the mortgage right of building under construction and themortgage right of building-use-land is duplicated mortgage of building-use-land; the conflictbetween mortgage right of building under construction and the priority of claim inconstruction project is the non-public contracting and the lack of contract registration. Theconflict between mortgage right of building under construction and right of real estatesubscriber is contradictions in executing of mortgage right of different banks. The fourth part puts forward the solution to the legal problems in the constructionmortgage cases. The principle of first registration in property prior to the last one to solve theconflict of the mortgage right of building under construction and the mortgage right ofbuilding-use-land; The principle of social benefit first solve the conflict between mortgageright of building under construction and the priority of claim in construction project; Buildingstandard of building advance booking after the setting of mortgage of building underconstruction solves the conflict between mortgage right of building under construction andright of real estate subscriber. The problem of mortgage registration of building underconstruction should be solved by the setting a unified law on registration of real estate, settingunified supervising institution.The case, happened in real life, leads to the conflict of mortgage right of building underconstruction and some other right in building under construction. This paper expounds thelegal basis in the construction mortgage and discusses the theory of controversial view andpractice solution. Author, by the rules of priority effect of civil right, in combination with theperfecting construction mortgage registration system, put forward the solution of rightconflict.