| Pre-Sale commercial house was first introduced in Hong Kong,and introduced into the Mainland of China as a form of mortgage loan.As a new mortgage type,it has been widely applied in practice.In the case of pre-sale of commercial housing,since the house has not been completed yet and the initial registration of house ownership has not been completed,the buyer still fails to complete the first registration procedure of ownership even though the buyer paid the purchase price in full.In order to ensure the follow-up and effective transfer of ownership registration,there is a need to register for advance notice.The buyer is required to apply for a loan from the bank.After calculating the impact of the credit risk,the bank generally requires the buyer to pre-sale commercial house as a mortgage,and also requires the developer to jointly and severally liable for the loan burden.However,due to the pre-sale commercial house is still under construction,the lack of supporting property rights certificates,and therefore failed to complete the matching procedures for the mortgage,only notice of the registration process.In the judicial practice,it is controversial issue that banks,as mortgagee,have the right to claim compensation for the sale of pre-owned commercial houses.Based on the analysis of the refereeing results of courts all over the country,both the affirmative and the non-verdicts are found.Combined with academic and legislative considerations,banks as a mortgage-holder have no claim in principle,but because of the huge commercial risk of the obligee who registered the advance notice,the bank should have the priority of repayment when the buyer fails to fulfill the debt.Under the binary system of real right and creditor's right,if pre-sale commercial house mortgage notice is registered as a debt,its power and effect can not be covered by the non-creditor's right,so it is more appropriate to define it as a special claim with the effect of real right.Through comparative analysis outside the territory,the scope of pre-sale real estate mortgage notice of registration should apply only to the registration of effective real estate real right,otherwise contrary to the "Property Law" on the advance notice of the legislative concept.From the legislative point of view,although the notice of registration in different periods from different aspects has provided,but because of the provisions of the laws,judicial interpretations and administrative regulations and rules of the department level on the whole general and repeated,the most important thing is the nature and the effect is still not clear enough.Even though the Implementing Rules of the Provisional Regulations on Real Estate promulgated in 2015 have enhanced the feasibility of pre-sale mortgages in substantive work in some aspects,the issue of notice of significant controversy in registration still has a greater impact.Although in most cases,the mortgagee can not claim the pre-sale of commercial housing priority,but the pre-sale of commercial housing mortgage registration will have other legal effect,the sale of commercial housing on the property has binding effect,but it still has the right to re dispose;on the country's public power,although mortgage notice of registration can not effect against pre-sale,but if the sale of housing for other reasons will lead to the termination of the contract,notice of registration of property destroyed,return to the real estate developers,then the underlying pre-sale also does not exist,it shall be released.Come into effect after the judgment of the registration request right,also has the effect to prevent the implementation;for other real people,"property law" does not provide a smooth the effectiveness of the registration notice,but from the perspective of guarantee registration,the registration shall be for other people to form a real effect,according to the sequence determined the pros and cons of real effect. |
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