On The Realization Of The Mortgage Of Commercial Banks In China

In many of the loans of commercial Banks,mortgages are more affordable than other types and remain the most important of all.In recent years,hypothec realization in the aspect of legal regulation of our country has made great progress,but the commercial bank loan mortgage rights in the process of implementation encounters the unreasonable system fetter and long judicial proceedings,faces many obstacles and ultimately difficult to achieve the purpose of establishing the mortgage system.In this paper,the author takes an example of the practical work experience,he wants to see through the process of achieving its mortgage of commercial banks,such as encounter to the legal,administrative and judicial aspects of various obstacles,and then explore the deep mechanism behind these obstacles.Finally it may help to solve the problems better.The first part illustrates the legal evolution and characteristics of the realization of the mortgage of commercial Banks in China.The realization of mortgage of commercial Banks and the realization of the general mortgage right have the same evolution theory foundation and the legal process.They mainly experience from the "general principles of the civil law" the regulation of simple way clearly to the "security law" to "property law" and "the civil procedure law" detailed regulation in several stages.In addition to the general mortgage of property made a special characteristics,the mortgage of commercial Banks in China also has some different features: firstly,the commercial bank mortgage detain goods focused on large land,house or under construction project;Secondly,the setting procedure of commercial bank mortgage is stricter;Thirdly,the realization of the mortgage of commercial Banks usually requires the judicial process.These characteristics of commercial Banks mortgage decides the implementation process to be comprehensive the property's specific situation,the existing mortgage system fetter and unexpected obstacles.The second part elaborates the obstacles in the realization of the mortgage of commercial Banks in China from two aspects.External obstacles mainly exists in three aspects: one is about the terms of law,there is conflict between laws and regulations,conflict between upper law and subordinate method,conflict between laws and local regulations,judicial interpretations and relevant laws and regulations there are some conflicts and other problems hinder the realization of mortgage of commercial Banks;Secondly,in administrative management,the registration authority requires that the mortgage registration period,or land and housing registered seperately,and registration authority "inaction" etc.All the factors affect the realization of the mortgage of commercial Banks.Thirdly is about th the judicial practices,notarial creditor's right document as realization of mortgage legal basis is difficult between multiple court execution of service that hinder the realization of the commercial bank mortgage.Internal obstacles mainly has two aspects: one is the commercial bank collateral management system is not sound,including collateral items management system defects,collateral value evaluation system defects,the mortgaged property information management system is not perfect that hinder the realization of mortgage of commercial Banks;The other is the lack of management standards of commercial Banks,including the lack of subjective legal awareness of commercial Banks and incomplete risk prevention and control mechanism which hinder the realization of the mortgage of commercial Banks.The third part in view of the block of our country commercial bank hypothec realization,suggesting the connected suggestions from the legal system of guarantee,mortgage related management system and mechanism of commercial bank management.From the aspects of making the system of guarantee system comp;etely,should speed up to modify relevant laws and regulations,improve the realization of mortgage legal system,including the timely modify "security law" relevant provision,to make it consistent with the property law,modify subordinate method in violation of relevant provisions of the host law,etc.;In terms of the relationship between mortgage and other priorities,we should further improve the cohesion of mortgage and other legal priorities.In order to improve the related management system of mortgage rights,we should further improve the mortgage registration management system.In order to improve the management mechanism of commercial Banks,we should strengthen the effective management of commercial bank collateral and establish the risk prevention mechanism of commercial bank mortgage.The fourth part summarizes the research results and deficiencies.