The Legal Effect Of Pre-sale Commodity House Mortgage

The pre-sale of commodity house mortgage is a special legal relationship.When the mortgage contract is established,the mortgage right is not established because the mortgaged house has not yet been completed.From the establishment of the mortgage contract to the establishment of the mortgage right,the legal effects of pre-sale of commodity housing mortgages have not yet been interpreted in common.Therefore,this article proposes three models of interpretation,and attempts to overcome the logical barriers through the study and reference of the basic principles of German property laws.After analysis and comparison,the rationality of the priority notice mode was determined.Based on this interpretation mode,there are multiple paths to protect the rights of creditors of the pre-sale commodity house mortgage contract.From a structural point of view,the main body of the thesis contains three chapters.The first chapter presents the interpretation models of the legal effect of the pre-sale commodity house mortgage,and discusses three interpretation modes,namely the priority notice mode(including the developer's priority notice mode and the buyer's priority notice mode),the pledge of creditor's right model and the mortgage of building under construction mode.The basic connotation,logical obstacles and possible overcoming methods of the three interpretation modes are discussed and analyzed.In the end,the developer's priority notice model is the most reasonable,but due to the diversity of practical operation modes,the buyer's advance-notice should also be discussed.The second chapter discusses the rights of pre-sale commodity housing mortgage creditors based on the mortgage contract,including the right to set up a mortgage on commodity housing and other contractual rights of the mortgage creditor.In terms of the right to set up a mortgage,the theoretical basis and the remedy for breach of contract are analyzed.In terms of the mortgage creditor's other contractual rights,the right to claim for damages for breach of contract is discussed,and two unique doctrines are reviewed,namely,the right to request for liquidation and the right to claim for guarantee after conversion.The right to request for liquidation,that is,when the main debt is not cleared during the term,the creditor has the right to request the mortgagor to pay off the main debt with the price of the mortgaged property.The converted guarantee liability claim is to convert the unregistered invalid mortgage behavior into a general guarantee behavior that assumes liability for debt settlement within the value of the mortgage house.The third chapter is the protection of pre-sale commodity housing mortgage creditors based on priority notice,which is divided into the protection of creditors when the mortgagor disposes of the commodity housing and the legal status of the creditors when the mortgagor is bankrupt or executed.In the case of partial disposal of commodity housing by the mortgagor,the protection of the creditor is discussed in the case where the developer as the mortgagor resells the house and re-mortgages others,and the buyer as the mortgagor resells the house and re-mortgages others.Then it explains the creditor's legal status when the mortgagor goes bankrupt and is executed.When the mortgagor goes bankrupt,if learning from the principles of German law to fill legal loopholes,creditors can enjoy the right of exclusion,otherwise they can only be compensated as ordinary creditors.When the mortgagor is enforced by the court,the creditor can apply to execute the objection,and at the same time actively convert the priority notice of mortgage to registration of mortgage.