Judicial Response To Unregistered Real Estate Mortgage Contract Dispute

Article 187 of the Property Rights Law does not provide for the legal relationship between the parties to the real estate mortgage contract when the registration of mortgage rights has not been carried out.This led to different judgment results in real estate mortgage contract disputes arising from the failure to register in judicial practice,which are mainly divided into two categories:guarantee liability theory and liability for breach of contract.The judgment point of the guarantee liability theory can be summarized as that when the mortgage right is not registered,the mortgagee and the creditor still have a guarantee relationship,and the mortgagor should assume the guarantee liability.The judgment point of view of the liability for breach of contract can be summarized as the behavior of the mortgagor who does not cooperate with the registration of the mortgage is a breach of contract that does not fulfill the obligation of registration and should bear the liability for breach of contract.With respect to guarantee liability,this article argues that the real property mortgage contract only generates rights and obligations related to the establishment of the mortgage right.The guarantee responsibility of the mortgage guarantee method comes from the effective mortgage right.The real estate mortgage contract does not directly generate the right to guarantee.If the conversion of invalid legal acts is used,the mortgage guarantee contract is converted into a joint guarantee contract.The converted joint guarantee property is the entire property of the guarantor,and the liability property secured by the mortgage is the specific property,and the specific property is used as the liability property.The joint guarantee cannot be established,so the invalid legal action conversion system cannot be applied.Therefore,when the mortgage is not registered,the mortgagor does not need to assume the guarantee responsibility.Regarding the liability for breach of contract,this article holds that the real property mortgage contract is a special creditor's contract that includes both the creditor's right and the property right.This is for the purpose of establishing a mortgage and creates a rights and obligations related to the establishment of the mortgage.Even if the contract is not stipulated,the registration obligation shall be attached to the real property mortgage contract,and both parties must perform it.If they do not cooperate to complete the registration formalities,they shall be deemed to have breached the contractual obligations and shall be liable for breach of contract.In the content of the liability for breach of contract,if the mortgage contract is not stipulated explicitly,it may require the continued performance of the registration obligation and the acquisition of the mortgage rights.The mortgagor may also be required to assume the liability for damages for the unliquidated portion of the collateral within the scope of the guarantee.