Judicial Handling Over The Termination Of Mortgaged Commercial Housing Sales Contract

Since the introduction of commercial housing mortgage into mainland China from Hong Kong, the mortgage has received adaptive changes according to the characteristics of commercial housing market and the laws and regulations in mainland China, and gradually developed into a commercial housing mortgage system with mainland China characteristics. Buying and selling, lending relationship and guarantee constitute legal relationship in commercial housing mortgage, in which business relationship is the foundation. The termination of commercial housing sales contract is bound to have important impact on the other legal relationships of the commercial housing mortgage. In order to properly handle termination of mortgaged commercial housing sales contract disputes, the Supreme People's Court promulgated judicial interpretation to clarify a third person litigation status of the mortgage bank in the disputes over the termination of mortgaged commercial housing sales contract and the dispute over commercial housing sales contract and the dispute over mortgage loan contract shall be jointly tried, also provided trial rules; however, the interpretation ignored the litigation status of housing provident fund administration centers in the dispute over the commercial housing mortgage with housing provident fund and in the meanwhile the joint trial and trial rules seriously break away from the judicial practice, causing confusion in the applicable law.This paper is composed of five parts, about 18,000 words.Part One beings with the etymological meaning of mortgage and the development process of mortgage since the introduction into mainland China and concludes that the commercial housing mortgage in mainland China is a financing purchasing form jointly participated in by property developer of commercial house, mortgage bank and the purchaser thereof and the legal relationship in the commercial housing mortgage is a compound constituted by selling and buying relationship, loan relationship and guarantee relationship.Part Two analyzes and elaborates that commercial housing sales contract and mortgage loan contract does not constitute a master-slave relationship, but affiliate contract relationship, one termination of which does not necessarily lead to a termination of the other, but it is required to make judgment from whether the contract itself conforms to the law or the termination stipulated in the contract and whether the whole economic purpose formed in the affiliate contract has been realized.Part Three analyzes the two disputes in the case, and draws the conclusion that it is improper for the court to voluntarily add the housing provident fund administration centers as the third party in the dispute over the termination of commercial housing sales contract, the judicial judgment on the termination of the mortgaged commercial housing sales contract shall be handled differently on the basis of whether the commercial housing has been registered for mortgage or made for notice registration for mortgage and the full amount of housing payment shall be refunded to the purchaser prior to the registration while only the down payment and the actually paid payment shall be refunded to the purchaser subsequent to the registration.Part Four analyzes and elaborates the provisions on joint trial on the disputes over the termination of mortgaged commercial housing sales contract and the dispute over commercial housing sales contract and the dispute over mortgage loan contract and trial rules, which seriously breaks away from the rules for mortgage market for commercial housing, lacks the living space and substantive law basis, causing confusion in the applicable law.Part Five summarizes and proposes the suggestions for Improvement, analyzes and elaborates that it is required to take the commercial housing mortgage as special contract and make provision therefor in the Contract Law, improve the application of affiliate contract theory to the commercial housing mortgage system, introduce the extension of right of defense, improve the contractual stipulations between mortgage bank and the property developer of commercial housing, practice the distribution of housing purchase loan in installment, improve the margin ration and reduce loan risks.Due to the limitations of time and personal ability, it is inevitable that there are omissions in this paper and the author will make further improvement in further study and work.