Discussing The Right Conflict In The Mortgage Of The Construction In Progress

Construction in progress is the collateral of the mortgage right of the construction inprogress,which is a breakthrough of Pawn specific of the traditional mortgate and gives fulplay to the function in financing of construction in progress and the use value of objects.In thereal rstate develop,the mortgate right of the construction in progress meets the requests infinancing of the real estate developer and promote the development of the real estatemarket.So the mortgage right of the construction in progress has been widely applied inpractice and is recognized by the Property Law.But for the particularity of the mortgage rightof construction in progress,this easily leads to conflict between the mortgage right ofprojects under consrruction and other rights,for example,the conflict between the mortgageright of construction in progress and the commodity house presale mortgage and the mortgageof the land use for construction,etc.This results in kinds of questions in theory and practice.Sothrough analysising the theory and legislation of the mortgage right of construction inprogress and discussing the right conflict in the mortgage system of construction in progressand its reason,this anticle can resolves the conflict between the mortgage right of constructionin progress and other rights reasonably.This paper is composed of four parts:The first part briefly introduces the theory and legislation of the mortgage right of theconstruction in progress.Firstly,this part introduces the particularity of the mortgage right ofthe construction in progress.The collateral has uncertainty.And the right and the value on thecollateral and the property’s range of the mortgage have uncertainty.These constitute theuniqueness of the mortgage right of the construction in progress.Secondly,comparing theconditions of collateral in the traditional mortgage with the characteristics of the mortgageright of the construction in progress,wo can find that although there is some conflict,there aresome same points between them.The existence of the mortgage right of the construction inprogress is reasonable.Thirdly,this part will introduce the law on the mortgage of theconstruction in progress and analysise the questions including imperfection of the system ofpublic and uncertainty of the properties of the registration of the mortgage of the constructionin progress.The second part briefly introduces the multiple mortgage in the real estate development.This part primarily introduces the real estate’s multiple mortgage.Firstly,this partsummarizes the situation of multiple mortgage,including the conflict between the mortgage ofthe construction in progress and the mortgage of the land use for construction and thecommodity house presale mortgage.Secondly,the part will expound the reason to the conflictof multiple mortgage and analysize it.Thirdly,this part will introduce the conflict resultingfrom multiple mortgage and resolve the problem.On the conflict between the mortgage of theconstruction in progress and the mortgage of the land use for construction,when they arerespectively mortgaged,they are all valid.And the construction in progress and the land use forconstruction shoud be disposaled together in bringing about the mortgage and the creditor hasthe priority to be repaid according to the share of the property in mortgage.On the conflictbetween the mortgage of the construction in progress and the commodity house presalemortgage,when the mortgage of construction in progress is prior to the commodity housepresale mortgage,the problem can be resolved according to regulation of transferringprocedure of collateral in the Property Law.On the contrary,according to the registrationrules,the first right in registration has the priority right to be repaid.The third part briefly introduces the conflict and solution between the mortgage of theconstruction in progress and contractor’s priority for construction fund.Firstly,this part willintroduce the contractor’s priority for construction fund and analysis the properties andrecognizes this right is priority.Secondly,this will introduce the conflict between the mortgageof the construction in progress and contractor’s priority for construction fund,including thereason and the order of recovery.Thirdly,this part will resolve the conflict.On the base ofaffirming the contractor’s priority for construction fund,this part will perfect thissystem,including setting up registration to get rid of the disguisition and restricting theabandon of the contractor’s priority for construction fund to protect the benefit of thedisadvantaged.These can balance the benefit of different creditors.The fourth part briefly introduces the conflict between the mortgage of the construction inprogress and the predicting resignation of real estate.Firstly,this will introduce the predictingresignation of real estate,illustrate the properties and the legal force.The predicting resignationhas the force to preserve the right and so on.It gives this right of obligatory right to force thethird party.Secondly,this will introduce the conflict,including the reason,the legal force andthe defeating force.Thirdly,this part will resolve the conflict.When the mortgage of theconstruction in progress is prior to the predicting resignation of real estate,if the creditor of the mortgage don’t agree to transfer the real estate,act of assignment is not in volid.So it isunable to predict resignation.If the creditor agrees,it is able to predict resignation.On thecontrary,the mortgage of the construction in progress can not force the right preserved by thepredicting resignation.