The Comments Of The Guarantee Contract Dispute Between Everbright Bank And A Real Estate Company

In recent years, with China's real estate market continues to heat up and house price continue to rise, an increasing number of people take the way of mortgage loans to buy houses. However, under the behind of the housing boom, some unscrupulous property developers obtain the bank loans by making false mortgage case, and this trend is becoming worse and worse. It is indicated that bank loans has been greatly threatened, and it directly affects the entire stability of social and economy and the development of financial market.There is no law aims to solve the phenomenon of false mortgage in current legislation. When people faced with the dispute, how to deal with this condition is becoming a legal problem. This model case selects the case about suretyship contract dispute between the China Everbright Bank and Dong He Company, and this is typical of the "false mortgage" dispute. Firstly, there is a debate on whether the validity of loan contract between the plaintiff Everbright Bank and the defendant Chen Siqi will be effected by the purchase contract which was lost its efficacy between the Dong He company and Chen Siqi or not. The two contracts are not master-slave relationship; according to the independent effect of legal recognition, this issue should be disposed with the mortgage loan contract. Secondly, we can combine with foreign related laws and regulations. And it is possible to put the mortgage of advance purchased commodity house into notice of the registration system; in addition, in this case, the advance notice registration of pre-purchase commodity house mortgage hypothecation can be treated as prospective property, the bank owns the right of mortgages and it is able to enjoy priority in compensation. Subsequently, under the background of the current law, as a necessary mean to maintain the interests of the bank, property developers need to undertake phased guarantee responsibility. We make a bold vision on whether we can investigate the real responsible of false mortgage or not: Using the “Piercing the Corporate Veil” as an example to “piercing the veil of false mortgage”, let the real responsible to pay all the debts. By this way, we can keep the substantive justice of the law and help the bank to get back the loan in the maximum range.