Research Of Mortgage Registration Of Construction In Progress

The development of the real estate industry has brought more demand for development capital.In practice,in order to obtain loans from banks and other financial institutions,developers usually use it as collateral.The right has the function of both guarantee and financing ability.Today,the mortgage system of construction in progress has become one of the most important ways of the financing of the real estate industry.China's "property law" confirmed the mortgage system of the construction in progress for the first time in the form of law.There is no doubt it is a big development for the traditional mortgage system.As the form and value of mortgaged property is constantly changing which causes the uncertainty of the object,it breaks the specific principle of the traditional theory of civil law.Furthermore,the relevant laws and regulations are not perfect and occur contradictions and conflicts,so the academic circles did not stop of the discussion.This paper focuses on the nature of the mortgage registration and discusses the subsequent transformation rules and the conflicts between the mortgage and other rights.the "property law" regulates the mortgage registration of the construction in progress in two ways.Its core quality is registration or just registration notice? The discussion on the nature of the mortgage registration of the construction in progress needs to be based on the scope of the mortgage where there is no unified view in the theory and judicial practice.Does the target part include the unfinished part? Does the uncompleted part belong to the "object" in civil law? In this paper,through the discussion of fundamental part of this system and the study of the judicial practice,the author discusses the scope of the mortgage object and the nature of the mortgage registration,clarifying the scope of mortgage of construction in progress to define the nature of mortgage registration,and solve the problem in transformation process and the conflicts of construction land use right,the priority of claim on construction and buyers' rights.This article discusses the nature of mortgage registration of construction in progress from four aspects: the existing problems of the nature of mortgage of construction in progress,the analysis of the object of mortgage and the nature of mortgage registration and subsequent problems.The first chapter: By comparing the relevant provisions in the real property law of the registration and the registration notice,the article proposes the nature of mortgage registration of the construction in progress is unclear.The establishment of registration is registration or registration notice? This chapter also introduces two theories and makes comparison and analysis.The second chapter: The article determines the scope of the mortgage through the definition of the concept the analysis of the legal nature of the mortgaged property.The expression of the construction is more accurate than the building in creation which includes the right of land use and the building.The particularity of the construction in progress is the mortgage property is not specific and should treat as the normal mortgage.The construction in progress is the object of real right.The construction in progress as collateral is specific if determining the mortgage subject at the point of completion of the construction.Mortgage object not only needs a specific range,the construction in progress as the collection can also become the object of real right.Through specific means of publicity and institutional arrangements for property rights,the future object can also exist in real right.Due to the characteristics of the collateral,the construction in progress can be mortgaged.The legislation on the separation of land and its object provides the legislative basis for that subject and the whole part includes the completed building and the unfinished part.The right to the use of the land shall be mortgaged together.The third chapter: through the comparison of the theory of registration and registration notice,the author defines the nature of the mortgage registration of the construction in progress.The nature of the mortgage registration is registration.The certainty of the object does not affect the establishment of mortgage.The mortgage contract,the scope of the mortgage and the current land use right registration system determine the mortgage registration of the construction in progress is the registration.Mortgage registration is also consistent with the real meaning of the parties and avoiding conflicts and protecting the interests of the mortgage.The current system of land use right mortgage also determines that the mortgage of the construction in progress belongs to the land use right and should be registration.The third chapter: In order to promote the registration status consistent with the actual rights and public security,we need to convert the mortgage registration of construction in progress into the housing mortgage registration directly.The establishment time of the housing mortgage registration shall be the time of the mortgage registration of the construction in progress.The construction land use right and the right of mortgage of construction in progress can coexist,and the compensation should be based on the principle of "mortgage together and compensate respectively",and follow the order of mortgage of land and building.The right of mortgage of construction in progress is unique mortgage and should be given to priority to the priority of claim on construction.If the mortgage is ahead the pre-sale,the pre-sale should be agreed with the consent of the mortgage as a precondition.This part is excluded from the scope of collateral,or should bear some punitive damages.In the case of the pre-sale first,the buyer can be registered through the notice to avoid the effect of the mortgage of construction in progress,or not prior to the mortgage repayment.