| In the current market economic activities,the legal liability of the mortgager of unregistered real estate mortgage has existed for a long time,mainly in the case that the mortgager guarantees the performance of the third party’s debt with specific property but does not register the mortgage,the current security legal system has not yet defined the creditor’s right relief path in this case.Generally speaking,the legal liability of the mortgagor of unregistered real estate mortgage is how the mortgagor assumes responsibility when the real estate mortgage is unregistered but the guarantee contract is valid.In order to clarify the mortgagor’s liability when the real estate mortgage is not registered but the mortgage contract is valid,this paper studies the legal liability of the mortgagor of the unregistered real estate mortgage.The full text is divided into three parts:The first part studies the concept and practical controversy of the legal liability of the mortgagor of unregistered real estate mortgage.Based on the case of "Li Xianglong" and"different judgments in similar cases" in judicial practice,this paper analyses the realistic dilemma of the legal liability of the mortgager of unregistered real estate mortgage,sums up and summarizes three current controversial viewpoints and their theoretical basis and considerations:"typical guarantee theory" holds that the solution should be sought within the framework of the current legal system,requiring the mortgagor to bear the breach of contract.Liability;"Guarantee Consensus Theory" holds that the form of guarantee at this time is an atypical form of guarantee,and the mortgagor should be required to bear the guarantee liability based on the guarantee agreement reached by the parties;"Interest Balance Theory" holds that the interests of all parties should be balanced,especially the interests of creditors,and that the mortgagor should bear joint and several guarantee liability according to the conversion of invalid civil acts in order to safeguard transactions.Security and trading order.The second part studies the mortgagor’s liability when the real estate mortgage is not registered.Based on the theoretical basis,the legal basis and the rights and obligations of the parties,this paper analyses and demonstrates the rationality of applying the liability for breach of contract and the liability for guarantee to the three viewpoints.The study finds that:when the mortgage of real estate is not registered but the mortgage contract is valid,the mortgagor can only assume the liability for breach of contract in case of fault based on the general provisions of the Contract Law;if the mortgagor assumes the liability for atypical guarantee based on the agreement of guarantee,it can not avoid the lack of clear form of liability and legal basis of liability,and violates the principle of prohibition of exile;if the mortgagor is based on the absence of such liability.Conversion of valid civil acts assumes joint and several guarantee liability,which violates the applicable premise of invalidity of civil acts and lacks legal basis.The third part conceives the right relief path when the real estate mortgage is not registered.Based on China’s guarantee legal system,this paper puts forward the value pursuit of right remedy,and on the basis of value pursuit,conceives how to determine the path of right remedy from the perspective of judicial practice and legislative design,so as to effectively solve the problem of the legal liability of the mortgagor of unregistered real estate mortgage. |
