Research On The Effects Of Pre-sale Mortgage Advance Notice

It is generally considered that registration of advance notice only has the effect of creditor's rights,and creditor's rights are still required to obtain the real right of registration before the conditions are fulfilled.This article argues that registration of mortgage advance notice is a notice of Jura in re Aliana to register,with the aim of making the registered mortgage claim against the third party.Registration of mortgage advance notice for pre-sale commercial housing which pre-buyer transacts to obtain purchase loan,in nature,is registration for loan bank's right of obligatory claim in accordance with mortgage contract.After realization of commercial housing and of housing ownership,pre-buyer should take the initiative to cooperate with official mortgage registration,and loan bank obtain hypothec;in the legal effect,is provided with some universals of registration of advance notice,including preservation of rights,preservation of the order,effectiveness of early warning and so on.However,since object of the registration is the right of claim which is not dominant nor is a real right,registration of mortgage advance notice does not have the effect of setting up mortgage.In addition,contract may be released or faced with damage to the subject matter after signing.The "creditor's rights" which constitutes the Article 20(2)of the Property Law leads to the failure of advance notice.Therefore,registration of mortgage advance notice is null and void after cancellation of commercial housing sales contract.And then priority of compensation is absence of law testimonies and operation.Moreover,pre-sale commercial housing which is under construction would not exist or could not be delivered if earthquake,tsunami or other force majeure occurs.Thus,recognition that registration of mortgage advance notice is provided with priority of compensation would be faced with the embarrassment that exertion of right is lacking of subject matter.Therefore,this paper argues that registration of mortgage advance notice is different from mortgage registration,and is not provided with priority of compensation.Finally,this paper focuses on the analysis of several rights conflict related to registration of mortgage advance notice and puts forward solutions.This article specifically includes five parts:Part ?: The disputes about the effects of pre-sale mortgage advance notice.This part mainly shows the awareness of problem.Sort out the basic legal relationships about pre-sale commercial housing,and then lead to the disputes about the effects of mortgage advance notice for pre-sale commercial housing.According to the train of nature to effectiveness,the main disputes in this paper focuses on two aspects: firstly,what is the nature of registration which pre-buyer transacts to loan bank as right holder for obtaining purchase loan? mortgage or pledge? If mortgage,specifically speaking,is it mortgage advance notice or official mortgage registration;secondly,when borrower fails to perform the payment obligation,is the loan bank entitled to priority of compensation? Moreover,registration of mortgage advance notice may be involved in a variety of rights conflict,and this article explores the paths to solving these conflict.Part ?: The nature of the registration of pre-sale commercial housing which pre-buyer transacts for obtaining purchase loan.This part is intended to clarify the origin of the nature of registration of mortgage advance notice.Use exclusion method to determine that the registration is the nature of mortgage not of pledge,and is registration of mortgage advance notice not official mortgage registration.Part ?: Registration of mortgage advance notice does not have priority of compensation.After clearing the nature on the last part,this part begins to expand its effects.First of all,it is the dispute of whether the right holder of registration of mortgage advance notice could claim priority of compensation for pre-sale commercial housing.After the analysis of a large number of judicial jurisprudence,and from a variety of perspectives such as the effects of advance registration and mortgage,the rescission of contract,the damage to subject matter and the conversion of mortgage advance notice after the completion of the pre – sale commercial housing,this paper argues that registration of mortgage advance notice does not have priority of compensation.Part ?: Conflict of rights in the registration of mortgage advance notice for pre-sale commercial housing and their solutions.This part mainly discusses the second aspect of the effects of registration of mortgage advance notice for pre-sale commercial housing.That is,in practice,the registration of mortgage advance notice may coexist with concurrency joint responsibility,construction project mortgage right,construction project priority compensation right and some public power measures,etc.The order in which each other's rights and measures are achieved is the focus of this part.Part ?: Conclusion.At the end,the author summarizes the core view of this paper in order to be helpful to judicial practice.