To Establish The Transferring Guarantee System

Since the1990s, as the development of China’s economic and the reform ofreal estate policies, the regions where economic developed fast in southern coastalcities introduced a new method of financing:" the financing mode of mortgage loan."More and more people use the “the financing mode of mortgage loan." to purchasereal estate. Although the term "mortgage" in mainland of China was introduced fromHong Kong, and seems similar to the mortgage in common law and civil law, butsubstantially different. In other words, in terms of the guarantee system, the wordestate agent referred to as "mortgage" is different from the mortgage in common lawof the system, which is actually the charge of real estate. Nowadays, the differencebetween “the financing mode of mortgage loan" and the real estate charge is thatformer operation is out of the guarantee legal system in mainland of China. In fact,real estate charge only relates to lenders and banks, while the financing mode ofmortgage loan" happens among lenders、banks and estate agents. Generally speaking,the agents firstly sell houses to the owners; then the owners apply to the banks forloans to pay to the agents; the agents provide transitional guarantee, when the ownersget property rights,real estate should be charges to the banks. The above purchase,loan, guarantee, charge, dispose of collateral should be appointed in advance, which isreferred to as "the financing mode of mortgage loan”. The model meets and protectsthe interests of buyers, agents and banks in all.Civil law countries simply refer to the word "mortgage" as "transferringguarantee”, which is not formulated in the legal system of mainland China. Thecurrent status of the “the financing mode of mortgage loan " in China mainlandindicates the urgent needs of the real estate market for financing. Our economic lifeexists a strong need for mortgage or transferring guarantee. Real estate transferringguarantee system should be establishedArticles gives a brief introduction and explanation to the mortgage system in common law and Hong Kong, and the transferring guarantee system in Civil lawintroduction and explanation,and then compared the two referred to above with thereal estate charge in China. then concludes the characteristics and the value of thetransferring guarantee system, which is worthy of our reference and learning.It is not only necessary, but also available to establish the transferring system inChina. It was formed by the civil law countries procedent doctrine and is on theory ofRoman law’s entrusted. Simultaneously it had absorbed the entrust theory ofGermanic Law In its emergence, after which “seek means hypocrisy said”,“Property’s statutory violation”,“being contract prohibit” criticisms finallyrecognized by the case law. China’s field of civil and guarantee law should makesome bold breakthroughs and innovation, to establish a clear regulation of real estatetransferring guarantee system, and guide the real estate trading market develop moreand more convenient, flexible, balanced and safe.