Research On Mortgage Of Presale Apartment

Mortgage of presale apartment is common existing but its title is not explicit, the fundamental cause is that the current laws in presale apartment theory of our country are indefinite and most of them are administrative regulations with lower level of legislation, so that the judicial practice operation is regional. Most especially, there is no direct regulation on the questions,which is whether presale apartment can be mortgage and if advance notice registration can establish the same legal effect as mortgage of real estate, moreover there remains debate between academia and judicial practice, so based on the practice and jurisprudence, we should confirm the effect of property on advance notice registration of presale apartment mortgage, for that right conflicts in such dynamic trading cannot be resolved if we imply Numerous Clausu sprinciple mechanically and explain the rules dogmatically. Since the risk is so unilateral in presale apartment mortgage that the loan banks require property developers to offer warranty protection for the stage of mortgage, which ensure the security of the bank credit funds. However, this guarantee type will perplex responsibility assignment between persona guaranty and material guarantee. To address these issues above, this essay consists of four sections:In Section 1, the author defines the concept of presale apartment mortgage and analyzes the relationship between presale apartment mortgage contract and commercial housing sales contract, through clarifying the role of presale apartment mortgage in financial loan, and then put forward the importance of presale apartment mortgage.In Section 2, according to the existing legislation on the mortgage of presale apartment in our country, the author explores legal nature of the commercial housing mortgage and analyzes its legitimacy. For the real property definition in our laws and regulations such as Security law and other countries, we consider the legal nature of presale apartment mortgage as the real estate mortgage.In Section 3, the author clarifies kinds of rights conflicts in current legal system such as the conflict between presale apartment mortgage and priority claim to the right of subject, during which we try to put forward appropriate coordination method. In view of our country’s conditions the mortgage of presale apartment cannot be canceled, the legislature should notice judicial practice and legislative practice and further perfect related laws, in which the effect of property on advance notice registration of presale apartment mortgage should be confirmed.In Section 4, the author analysis the lack of corresponding legal adjustment and the problem of confusion in the judicial practice. Through the unfinished presale apartment mortgage after the transfer problem, and purchased commodity house mortgage with developers to joint and several guarantee deposit, developers responsibility to take issues such as depth analysis, in order to perfect the laws and regulations in the national legislature and coordinate with property law, so that the legitimate interest of citizens can be protected through unified judicial understanding.