Study On The Right Of Lending Bank In The Dispute Of Terminating The Presale Contract Of Commercial Building

Mortgage loan business is an important asset business of commercial banks,and plays an important role in promoting the improvement of living conditions of the general public,promoting the development of the real estate industry and the stable development of the national economy.Economic instability,fluctuations in the real estate market and changes in related policies may bring risks to commercial banks' mortgage lending business and even the economy as a whole.Under the current circumstances,the real estate market faces great pressure from downward adjustment,and the number of disputes of commercial building sales contract is expected to further increase.The sales contract of commercial houses is the foundation of the legal relationship of mortgage.If the sales contract of commercial houses is terminated,a series of uncertain changes in the loan relationship and guarantee relationship in the real estate mortgage will take place.In this paper,we study the dispute of terminating the presale contract of commercial building,and by using comparative analysis,normative analysis,empirical analysis and other research methods,we analyse legal relationships involved in commercial building mortgage and banks' rights under mortgage loan contract,and mainly discuss the judicial handling of mortgage loan contracts in the dispute of terminating the presale contract of commercial building.We also put forward suggestions on how to exercise the right of banks,how to deal with disputes,how to perfect and supplement the legislation,and how to prevent and control the risk of the lending bank.The first part of this article first sorts out the legal relationship involved in the mortgage loans of commercial housing.Then by analyzing the characteristics of the mortgage loan contracts,we deduce that the loan banks enjoy the rights and interests of the creditor,the pledgee and the security rights holder under the contract.Finally,It is proved that the relationship of the presale contract and the mortgage loan contract is not the master-accessory contract relationship because the pre-sale contract and the mortgage loan contract are closely linked.The second part of this article first analyzes the procedural issues such as the ability of the lending bank to participate in and whether it should participate in disputes about the terminating of presale contracts of commercial houses and the litigation status of lending banks in proceedings about such disputes,and conclude that the lending bank should participate in such proceedings and its litigation status may be different if it participate in the proceeding in different ways,but there is no substantive difference about its litigation rights.This paper then compare and analyze substantive rights and interests that the loan bank should enjoy and deem that the current judicial interpretation should be understood as:The obligations to repay bank loans are directly transferred to developers because buyers no longer enjoy rights on the house.After the presale contract of commercial housing is terminated,some of the guarantee rights originally enjoyed by the lending bank will also change.Because there are some problems in current judicial interpretation such as the legal basis is unclear,the scope of adjustment is limited,the third part of this article distinguishes procedural and substantive rights and conducts an empirical analysis on banks' rights and the condition of the exercise of rights in disputes of commercial building presale contract.In the fourth part of this article,based on the current legal provisions,we put forward some suggestions for the judge to properly handle the presale contract of commercial building in specific case.Then we put forward some legislative suggestions about establishing a commercial building mortgage system and drawing lessons from the foreign theory of affiliation contract while the existing judicial interpretation have some problems such as the legal basis is unclear,the scope of adjustment is limited.Finally,this paper puts forward some suggestions on how to take precautions against risks and protect the rights and interests of the lending bank.