Research On Legal Effect Registration Of The Pre-purchase Of Commercial Housing Mortgage

In order to prosper the real estate market and solve the problem of capital turnover of property developers,the pre-sale system of commercial housing has sprung up.The pre-purchase of commercial housing mortgage registration,which arises in mainland China,is a new system,borrowing from the mortgage purchases of Hong Kong.That is,buyers can achieve financing through bank loans,meeting the demand for housing purchase.These two systems are perfectly connected,booming the real estate market,reducing the risk of the banks which provide the individual housing loans,and meeting the demand for housing buyers,which is of great value to safeguard citizen's right to exist.However,it is such an important and common registration method in estate bargains.At present,there is not direct provision on the registration of pre-purchased commercial housing mortgage.The lack of legislation has led to the existence of different judgments about the effectiveness of this system in judicial practice.In the academic theory,there are different views about the nature and effectiveness of this system.For its nature,there are mainly two controversial views: one is the registration of mortgages for housing expectant right,and the other is advance-notice registration of mortgages.China is a typical country with statute laws.Against that background,it is more appropriate to characterize its nature as advance-notice registration.After determining it's nature,the emphasis is the effectiveness of the mortgage advance-notice registration,including whether it can produce the validity of preferential compensation,the validity of againsting enforcement,the effectiveness of bankruptcy protection,and how to coordinate the conflicts between other rights and this system.About the validity of preferential compensation,this text considers,we should differentiate the mortgage advance-notice registration and mortgage registration in judicial practice by enumerating relevant cases.We shouldn't mix the two of them up.The advance-notice registration can't generate the effect of the mortgage established,but the mortgage advance-notice registration of the pre-purchase commercial housing shall be an exception.We should acknowledge that rights-holders enjoy the right of preferential compensation while they are blameless.Enforcement measures are classified according to their functions and purposes.They can be divided into control enforcement measures and disciplinary enforcement measures.Mortgage advance-notice registration can't confront the disciplinary enforcement measures.For control enforcement measures,it is necessary to discuss the situation.If you have already possessed the conditions for registration of the mortgage,you can naturally confront it;if you do not possess the conditions for registration of the mortgage,you can't confront it.The effectiveness of bankruptcy protection for advance-notice registration is reflected in its purpose of protecting the rights of creditors by restricting the free choice of the bankruptcy administrator.The Bankruptcy Law stipulates that neither party to the contract has fulfilled his contractual obligations,the bankruptcy administrator may choose to terminate or continue.The basis of the claim for the advance-notice registration and the mortgage notice registration is respectively the double contract and the single contract.The restrictions on the manager's choice are different according to the basis of the request.