Study On The Effect Of Pre-sale Housing Mortgage Notice Registration

Since the concept of "notice registration" was first raised in China's "Property Law",the mortgage notice registration has been widely used in the pre-sale of commercial housing.However,because the provisions of China's law on its effect are too rough,in the face of complex disputes,it is difficult to draw a clear conclusion.Therefore,the situation of "different judgments in the similar case" occurs frequently.Especially,the question of whether the right holder of the mortgage notice registration is able to receive priority compensation for the house is more concerned.This article takes this practical issue as an entry point to explore the general effect of China's mortgage notice registration and whether its right holder have the right to receive priority compensation.The first chapter raises the question.Through jurisprudence statistics and case comparison,it is pointed out that there are general differences in the judicial judgment on the effect of pre-sale commercial housing mortgage notice registration.And the analysis framework of this issue is proposed.The second chapter analyzes the effect of the mortgage notice registration from the theoretical level.The mortgage notice registration should not only have the general effects of rights preservation and order preservation according to the comparative law,but also should endow its right holder with priority of receiving compensation in China's case.It is necessary to make this breakthrough compared with the German law,because the special function and design of the pre-sale housing mortgage registration system in China makes the creditor's rights both important and weak,which makes it pivotal to guarantee the security of the creditor's rights by recognizing the priority of compensation.It is also feasible to recognize the priority of compensation,since the legal or enforcement obstacles are possibly overcome.The logic dilemma of weather to recognize the priority as an effect of mortgage notice registration is the divergence between the value orientation of protecting creditors' interests and the existing legal rules.The third chapter analyzes the priority compensation effect of mortgage notice registration from the empirical level.By comparing the proportion of and summarizing main reasons for the recognition and non-recognition of compensation priority in 221 cases,it is concluded that the essence of this dispute is the difference between the value orientation of the law and the operational obstacles.If the priority is not recognized,the consequences would be that the creditor's rights would not be protected as expected,that the real estate developer's staged guarantee liability would be improperly increased,and that the debtor's default cost would be reduced,which breeds more moral hazard beyond expectations.These all may fundamentally shake the implementation logic of the pre-sale system of commercial housing and affect the function of the system.It follows that the recognition of compensation priority in specific situations is an option in response to the needs in China's situation.The fourth chapter proposes the improvement of the mortgage notice registration system.Based on the conclusion of the previous three chapters,this chapter summarizes the functional defects of the pre-sale commercial housing mortgage notice registration system,and proposes corresponding suggestions in both legislative and judicial perspective.On one hand,the relevant provisions on rights preservation and order preservation for mortgage notice registration should be clarified.On the other hand,in judicial practice,consistent judgment standards should be adhered to,which means in certain situation,the creditor should be endowed with priority in receiving compensation based on the pre-sale housing mortgage.