Research On The Liability Of The Mortgagor When The Real Estate Mortgage Is Not Registered

The creditor often sign another guarantee contract with the debtor or a third party other than the contract to ensure the safety of creditor's rights while signing a loan contract with the debtor.Among many forms of guarantee,the real estate mortgage guarantee has become the most common form of guarantee because of its stability and high value.Because the real right change of real estate needs to be registered,so dose the establishment of mortgage.However,the understanding of the nature of registration in our country has different provisions in different periods of time.According to Article 41 of the Guarantee Law in force in 1995,The real estate mortgage contract shall come into effect on the date of registration and the mortgage contract shall become effective as of the date of registration,which is called "real right formalism" in the legal circles.While according to Article 15 of the Property Law,which has been in effect since 2007,A contract concluded by the parties concerned on the creation,change,transfer or elimination of the real right of a real property shall become effective upon the conclusion of the contract,except it is otherwise prescribed by any law;and whether the real right has been registered does not affect the validity of the contract,which is called "creditor's rights formalism" by academia.In different historical periods,the two laws have played an important role and formed a large number of cases in the long-term judicial practice.Since the Property Law establishes the rule of "dichotomy of debt and property",it is impossible to establish a mortgage without mortgage registration,but the validity of mortgage contract is not invalid.In this case,the law of our country has not made clear what kind of responsibility the mortgagor should bear.This paper argues that the conclusion of a case by the joint and several liability of the mortgagor obviously lacks a clear legal basis.Since the entry into force of Article 178,paragraph 3,of the General Principles of Civil Law stipulates that "joint and several liability shall be prescribed by law or agreed upon by the parties",such judgments have changed from lack of legal basis to lawlessness.Therefore,this article holds that under the current legal framework,the mortgagor should not be judged to bear joint and several liability for this type of case,but should seek relief for creditors,rights and interests under the liability for breach of contract.For this reason,this paper will systematically study this legal issue in order to make a modest contribution to the solution of this problem.In summary,this paper will be divided into five parts to gradually promote the study of legal issues related to real estate mortgage contracts.The contents of the article system are as follows:Part l,The introduction.Mainly elaborates the research status,significance,purpose,the scope and methods of the article,and then introduces relevant cases to raise questionsPart 2,The effect of the real estate mortgage's contract validity on the mortgagor's liability.Starting from the validity of the contract,systematically introduces the different provisions of the Guarantee Law and the Property Law on the validity of the real estate mortgage contract,and also summarizes the "debt-property dichotomy" theory behind it,which provides the necessary theoretical and logical basis for the study of the mortgager's liability.Part 3,Analysis of the mortgagor's liability when the real estate mortgage is not registered.Firstly,it briefly introduces the situation that the mortgagor is not liable.Secondly,it elaborates the irrationality of transforming the mortgagor's liability for breach of contract into joint and several guarantee liability in the case of non-registration of real estate mortgage contract.Finally,it solves the mortgager's responsibility undertaking based on the responsibility of breach of contract.Part 4,The path choice of the mortgagor's responsibility when the real estate mortgage is not registered.Expounding the liability of the debtor for breach of contract of real estate mortgage,from the nature of joint and several liability and the scope of compensation.Part 5,the Conclusions.Summarizing personal point of view.