| The mortgage of commercial building is a type of the Mortgage of a Project under Construction.The Measures on the Administration of Mortgage of Urban Real Estateissued by the Ministry of Construction(as “the Ministry of Housing and Urban” for now)in 1997 confirmedthe system of Mortgage of a Project under Constructionfor the first time in the form of departmental regulations.Some Provisions of Judicial Interpretation of the Guarantee Law refined the system later on.Article 180 of the Property Law of the People's Republic of China formally established the system of Mortgage of a Project under Construction by using the phrase “building under construction”.It should also be noticed that many problems arise from practical operation of the system of mortgage of commercial building(“the System”).This thesis begins at the practical operation of the system,and then analyses,considering academic theory,judicial practice and specific regulationsat the same time,reasonableness of the system,feasibility of the system in practical operation,the reasons for the aforementioned problems.Apart from introduction and concluding,this thesis is divided to five parts as follows:The first part will investigate current situation of the mortgage of commercial building in China.Based on judicial practices and regional normative documents and considering the problems arising from the application of the mortgage of commercial building,it is found out that the coverage of mortgagee and pledge are not uniform in the System.It is disputed that whether or not the acquirement of the presale permit is the premise of the System in some area.The presale of commercial building,the system of Construction Land Use Right and the System are connected with each other and also conflict with each other at the same time.The materials which are required upon registration for the mortgage of commercial building differ in some provinces.The second part defines the coverage of mortgagee and pledge of the mortgage of commercial building in China which are the two main aspects in the application of the mortgage of commercial building.It should be pointed out that the mortgagee of the mortgage of commercial building should include other financial institutions with financing functions in addition to the mortgage bank.As for the coverage of pledgeof the mortgage of commercial building,by analyzing legal provisions and typical judicial cases,combined with the applicable value of the System and relevant theories,it is considered that new buildings as “buildings under construction”,should be the object of the mortgage of commercial building;the corresponding Construction Land Use Right of the whole land shall be mortgaged when the mortgage of commercial building is established.The third part clarifies the connections and the balance of interest between the System and the system of presale of commercial buildings.It is thought reasonable that the acquirement of the presale permit is the premise of application for the mortgage of commercial building;however,mandatory uniform requirements are not advisable.It is also made clear that as for the parts on which the mortgage of commercial building has been established,the act of issuance of presale permits does not involve the breach of rules.The nature and effectiveness of advance notice registration for presale commercial building should be affirmed.The appropriateness and feasibility of mortgage are acknowledged by the standard of dividing by time period and coverage.The fourth part is the analysis of the relationship between and effectiveness of building and land in the mortgage of commercial building and concentrates on the compliance and breakthrough of principle of integration of land and house.It is reasonable to define repeated mortgage and separate mortgage,both mortgages shall be effective as long as the mortgagee accepts them.In addition,through summarize of some regional normative documents and analysis of judicial cases,the feasibility of additional mortgage rules is made clear,its practical operation and registration methods are made normative.The fifth part concernsthe registration of the mortgage of commercial building.This part clarifies that the requirements for the establishment of the mortgage of commercial building includesqualifications of the mortgagee,the completion of the construction of the project and the relevant compulsory certificates and other materials.Combined with some regional normative documents and guidelines of municipal real estate registration center,this part also makes clear necessary materials for registration of the mortgage of commercial building,which includes the mortgaged contract and the main creditor's rights contract,the real estate ownership certificate of the construction land use right,the construction project planning permit and other necessary materials,and defines other necessary materials.At the end of this part,this part makes a conclusion that it is the most reasonable and lawful method to transform the mortgage of commercial building directly into housing mortgage registration. |
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