On The Rules Of Real Estate Mortgage

In our country the relation between land and things fixed on land has been the use of two element Doctrine legislation,the earliest can be seen in the "urban state-owned land use right transfer and transfer of the Provisional Regulations",after the "Urban Real Estate Management Law","Guarantee Law" and other laws stressed,And finally determined by the "Property Law" in the form of basic law to be confirmed.The so-called two element Doctrine legislation,that is,recognition of land and things fixed on land are independent of the ownership of the object.However,for the sake of social stability,simplification of legal relations,and reduction of disputes,China also stipulates that the right to use construction land and the fixed objects on the ground shall be mortgaged together.However,because the law does not clarify,in the application of easy to doubt,although the "Property Law" issued for the issue to do further provisions,but still failed to eliminate all disputes.Therefore,it is necessary to analyze the provisions of the Property Law on collateralization in order to provide some reference and help for the settlement of the problem and the improvement of the system.This article first of the "Property Law" Article 182(hereinafter referred to as this article)paragraph 1 of the elements of the interpretation of the analysis to enhance its accuracy in the application.Such as "building" that can not cover the structure and other ancillary facilities,is a legal loophole,the latter two should be analogy applicable.Secondly,this article discusses the nature of the mortgage,that is a common mortgage.Besides,This article discusses the application of this article in some special cases,such as underground fixtures,construction in progress,sharing and distinction.The paragraph 2 of Article 182 is the center of this article.As for its application,there are four kinds of theories in the academic circles,which are totally invalid theory,partial invalidity theory,repeated mortgage theory and separate compensation theory.On the basis of the analysis and review of the above doctrine,this paper attempts to put forward a new idea as the second paragraph of this article to apply and solve the current situation of separation of mortgage,based on the purpose of legislation and judicial practice.In this way,we can,in the same way as to ensure the consistency of the final rights of the right to use the construction right and the right to use the construction land,the maximum respect for the autonomy of the parties,the balance of the legitimate rights and interests of the parties,the implementation of the principle of fairness,Economic activity and development.