Study Of The Mortgage Of Advance-notice Registration

Mortgage of advance-notice registration is an important means of financing guarantee in the field of commercial housing transaction in China.As for the judicial practice of mortgage of advance-notice registration is concerned,the Supreme Court unified the judicial practice through a bulletin case in 2014.According to general applicable rules point of view of the Supreme Court's bulletin case,mortgage of advance-notice registration is only a temporary registration,it does not produce priority to repayment.It is not hard to find out from the practice after the bulletin case was made that there is not yet a consensus in practice on the qualitative and validity of mortgage of advance-notice registration.Many local courts in the application of such cases applied the rules directly,they regarded the registration as the judging basis of the issue whether the mortgage of advance-notice registration has priority to repayment or not.However,denying the priority to repayment of the mortgage of advance-notice registration holders completely does not meet the real needs of real estate transactions in our country.Therefore,in the application of specific cases,there are also many courts protect the bank's priority of compensation with different reasons out of the need for a balanced case.Judging from the history of commercial housing transaction in China,mortgage of advance-notice registration may include the precondition of loan that the bank should obtain the priority right.In addition,banks are at a relative disadvantage statein the legal relationship of the mortgage of advance-notice registration.Denying the the Bank's Priority right of repayment completely will increase the risk of bank claims,and at the same time increase the developer's guarantee responsibility.What is more,it will also jeopardize the development of real estate transactions.Therefore,exploring the practical path of mortgage of advance-notice registration is the focus of the study of the mortgage of advance-notice registration system.Combining with the legislative evolution of our country and the core requirements of the mortgage of advance-notice registration,we can see that mortgage of advance-notice registration is a special structure combined with the practice of commercial housing transaction.Because the mode of real right change in our country is different with the experience of Germany,and the special management of pre-sale commercial housing in our country makes it have the characteristics of specificity,therefore,the mortgage of advance-notice registration in China is different from the experience of Germany.And from the legislative practice and practice demand in our country,this reflects the rationality of the mortgage of advance-notice registration in our country.By analyzing the structure of mortgage of advance-notice registration,this paper holds that the effectiveness of mortgage of advance-notice registration is mainly manifested in the preservation of rights and the effect of sequential protection.Specifically speaking,as the pre-sale phase buyers can not set up the second mortgage in the pre-sale stage,the protection effect of the pre-sale phase is mainly reflected in the conflict between the mortgage of advance-notice registration and judicial restrictions.Since the mortgage of advance-notice registration is always preceded by judicial restrictions,it always has the first-order effectiveness when the two are in conflict.But when the house purchasers get the ownership of commercial real estate,the registration of the advance-notice of mortgage is equivalent to the "sub-mortgage",and it cannot restrain the house purchasers setting up the second mortgage or other restrictions.So,the effect of sequential protection is also reflected in the situation when the owner of the house set other restrictions on the houses.As for the issue whether the advance-notice registration has priority effect ofcompensation or not,according to the existing law of our country,advance-notice registration still belongs to temporary registration and does not have the effect of final registration.In the view of the practical aspect,denying the priority right of the registered right holder neither accord with the original intention of the system,nor can fully reflect the real intention of the parties.Considering the other legal effects of advance-notice registration,acknowledging that the owner of registration right has the right to receive compensation in priority will not infringe on the legitimate rights and interests of the third party,and it is more conducive to unifying the judicial practice at the same time.Another possible path is that when the meaning of priority right of repayment is clear in the pre-sale housing mortgage loan,reference to the right pledge processing can also provide reference for such issues.