The Liability Of The "Mortgagor" For Unregistered Real Estate Mortgage

In judicial practice,the parties to the real estate mortgage contract fail to register the mortgage for various reasons,bringing about related disputes now and then.In accordance with the relevant provisions of the Property Law of the People's Republic of China,the real estate mortgage right shall be established when registered.Without such registration,the mortgage right arsing from the establishment shall not come into legal effect.The creditor of the mortgage contract shall not realize the real right of security on the mortgaged property according to the mortgage right,or claim priority of compensation.Upon promulgation,the Property Law makes it clear that the failure to register the mortgage shall not affect the effectiveness of the mortgage contract.But under such circumstances,what kind of civil rights should creditors enjoy and what civil liability should “mortgagor” assume are not clearly stipulated in the law of our country.Due to the lack of legal provisions and different opinions on relevant theoretical research,“different judgments in the same case” are sometimes seen in judicial practice.All the above questions will lead to another question: is the “mortgagor” who failed to register the mortgage of real estate liable? What are his liabilities,if any? How shall he assume liability? This paper,taking the typical cases of the Supreme Law as the object of analysis,taking the theory of real right change as the premise,and taking the theory of “transformation” of civil acts as the analytical tool,attempts to comprehensively and deeply interpret and answer the above questions,expecting to be conducive for the time being.This paper consists of four chapters apart from the introduction and conclusion.Chapter One introduces five typical cases of the Supreme Court to sort out the judicial standpoint of disputes over real estate contracts without being registered for mortgage rights,and to bring out the related issues of the debtor's liability,the nature of liability and the way of interpretation of mortgage contracts.Chapter Two analyzes the mode of real right change in our country,introduces the theory of causal behavior thereof,and then distinguishes the nature and effectiveness of real estate mortgage contract,compares the nature of real estate mortgage contract and guarantee contract,and finally reviews the establishment of “atypical guarantee” relationship between the parties to the mortgage contract.Chapter Three analyses the possibility and constituent elements of the “transformation”of invalid legal acts from the perspective of hermeneutics,refutes the view that there is no applicable space for the theory of the transformation of invalid acts in the academic circles,advocates that such “transformation” should place more emphasis on the interpretation of the actors' intention,and holds that mortgage contracts without the registration of real estate mortgages shall be regarded as guarantee contracts as long as they satisfy the constituent requirements of “transformation”.Chapter Four makes relevant analysis of the impact of the exercise of creditor's claim on the specific liability of the “mortgagor” through the analysis of the relationship among civil rights,obligations and liabilities,introduces the specific types of liability of the “mortgagor”,and discusses the concept of each specific liability,its constituent elements and the rights and obligations of the person responsible.