Research On The Preliminary Registration Of Mortgage Of Pre-purchasing Commercial House

Preliminary registration of mortgage of pre-purchasing commercial house that is a supporting system developed with the development of housing pre-sale system in mainland China,which is the result of the local transformation of Hong Kong's housing mortgage system by the mainland.This system,as the main guarantee measure to protect the interests of banks in the pre-sale of housing,has been applied in real estate practice for nearly more than 10 years,because of the rapid development in practice,which results the lag of the law.Finally in 2007 China issued the "Property Law" for the first time to provide for the preliminary registration,followed in the2008 "Housing Registration Administration measures" firstly appearance of the " preliminary registration of Mortgage of pre-purchasing commercial house" words,and put it into the type of preliminary registration.At present,although there are some provisions in the legislation on the preliminary registration of mortgage of pre-purchasing commercial house,there is a lack of provisions on this system at the legal level,most of which are scattered in some departmental regulations and internal documents,and their legal rank is lower and the legal effect is weaker.Moreover,in the academic field,there are great differences in the system,the theoretical disunity and the lack of legislation,resulting in the court decisions involving the system of the results are very different,to the detriment of the authority and fairness of the judiciary.As a relatively new system of pre-sale of commercial housing,the design of its system and related systems are still missing and need to be further clarified at the legal level.Starting with the basic concept of preliminary registration of mortgage of pre-purchasing commercial house,this paper uses the methods of literature research and case analysis,based on the present situation of the system in legislation and judicial practice,summarizes the controversial focus in practice,and makes a theoretical analysis of the controversial issues,making clear the attribution,efficacy and failure of efficacy of the mortgage ofpreliminary registration system.On this basis,this paper puts forward some ideas on the construction of preliminary registration of mortgage of pre-purchasing commercial house,in order to provide legal support for the improvement of China's advanced registration system.In addition to the introduction and conclusion,this paper consists of four parts:The first part is the basic concept of preliminary registration.of mortgage of pre-purchasing commercial housing.This part will the concept apart to carry out analysis,through semantic analysis of pre-purchasing commercial housing,preliminary registration,mortgage registration of the basic concepts are clear,in order to accurately define the relevant concepts on the basis of grasping the preliminary registration.of mortgage of pre-purchasing commercial house accurately meaning,that is,in the pre-sale of housing,Pre-purchasing commercial house has not been completed,do not meet the conditions for the registration of real estate,and at this time the house pre-purchaser and the bank mortgage contract,in order to protect the commercial housing to meet the conditions of mortgage registration,the bank can determine the acquisition of mortgage,the Bank of the buyer's mortgage registration request to register the notice.On the basis of accurately understanding of the basic concepts for the subsequent discussion to do the most basic theoretical paving.The second part is current situation and problems of preliminary registration of mortgage of pre-purchasing commercial house,this part from China's judicial practice,legislation and extraterritorial status of three aspects of analysis,through the judicial practice involved in the system of the trial point of view summary,Classification and the relevant provisions of the legislation relating to this system are summarized and compared with the extraterritorial legislation,pointing out that at present in the preliminary registration.of mortgage of pre-purchasing commercial house which are relevant provisions of the low legal level,weak legal effect,general content,the vague distinction between preliminary registration and real estateregistration,and the in conformity between the pre-purchasing commercial house and the law of the "Building under construction”.There are some problems such as the lack of effect of preliminary registration.of mortgage of pre-purchasing commercial house and the defects in the conversion of this registration.The third part is the legal analysis of preliminary registration of mortgage of pre-purchasing commercial house.This part is the key chapter of the article,mainly in view of the dispute in the trial practice on the preliminary registration.of mortgage of pre-purchasing commercial housing from the legal analysis.First of all,starting from the nature of the system,it is determined that it belongs to one of the types of preliminary registration.Secondly,on this basis,the preliminary registration of mortgage is analyzed,in addition to the preservation effect,the sequence effect and the full effect of the preliminary registration,it also emphasizes that the right holder has no priority right of compensation.Finally,the reasons for the failure of the registration are explained,which provides a theoretical basis for the judicial decision.The four part is the system design of preliminary registration of mortgage of pre-purchasing commercial house.Based on the national conditions and theoretical analysis of our country,this part puts forward that the legal status of the preliminary registration of mortgage of pre-purchasing commercial house should be clarified first,and the registration should be issued in the property law.Secondly,it is clear the nature of the registration,that is,it belongs to the type of the preliminary registration,and under this premise,the relevant effect of the preliminary registration is perfected,and the special effect of the mortgage preliminary registration is supplemented.Finally,improve the relevant supporting system,respectively,to improve the pre-sale capital supervision and credit system,in order to provide some reference for China's preliminary registration of mortgage of pre-purchasing commercial house.