Analysis On The Legal Effect Of Advance-notice Registration Of Commercial Housing Mortgage

The advance registration system is mainly applicable to the field of pre-sale commercial housing in China.After pre-purchase of commercial housing,buyers can go to the relevant departments to register the advance notice of commercial housing mortgage.The advance-notice registration of mortgage has two functions.For the buyers,the system can meet their financing needs,while for the lenders,the system can also control their loan risks.There is no agreement on whether the obligee of advance notice registration of commercial housing mortgage can enjoy the priority right of repayment in theory and practice circle.And the judgment results of various courts are different.The bulletin case of Supreme Court holds the view that the advance-notice registration of mortgage is only a temporary registration and does not produce the effect of priority compensation.However,if the bank’s priority to be denied blindly,it may increase the bank’s credit risk.At the same time,it will aggravate the guarantee responsibility of the developers,and it may hinder the healthy development of the real estate trading field.The legal nature of the advance registration of mortgage system is different from mortgage registration.It is just temporary register and a kind of guaranty means,so it does not own the legal effect of priority.The legal effect of advance-notice registration of mortgage is mainly manifested in the effect of right preservation and sequential protection.The advance registration of mortgage is mainly throughrestricting the dispose of commercial house on pre-buyers and developers to preserve the obligee in the future to achieve mortgage right.But based on the analysis of the legal nature of the advance notice registration of mortgage,it should not limit pre-buyers to set mortgages to others again.At the same time,the obligee cannot restrain the execution procedure.If admit that the advance notice registration of mortgage has the legal effect to preserve the registration obligee’s right,the obligor can set repeated mortgage on the pre-purchased house.In doing so,it can fully exert the legal effect of content and in accordance with the legislative purpose of Property Law.And the current law of our country has explicitly recognized the legal effect of sequential protection of advance notice registration.From the perspective of judicial practice,totally excluded the priority of the advance-notice registration of mortgage would deviate from the goal of the advance notice registration system,and it also violates the real meaning of the parties.Therefore,without reference to the highest court bulletin case,local courts all over the country continue to explore whether banks can enjoy the priority to be repaid.In the trial of specific cases,many local courts often give priority to the right holders of the advance-notice registration of mortgage through different judgment reasons in order to balance the justice of the cases.At present,in the judicial practice,the disputes about the advance-notice registration of mortgage in our country mainly focus on whether the bank could enjoy the priority of compensation for the disputed commercial housing.However,in the current legal system of our country,it is not realistic to directly recognize that the advance-notice registration of mortgage can produce mortgage right.Nonetheless,the court can confirm the obligee of the advance-notice registration of mortgage enjoy the priority right of repayment through the effective judgment document when the conditions for this registration have been fulfilled,and the obligee of the advance-notice registration of mortgage has no fault in the registration of the mortgage right,or the obligor of the advance-notice registration of mortgage deliberately obstructs the achievement of the conditions.In this condition,it can not only clarify the ownership of the real right,but also avoid the advance registration of mortgage confused with the mortgage registration.In order to betterprotect the bank’s rights and interests,it is more advisable to allow the registration obligee to auction the contract rights directly.And the recognition that the bank has the priority right to be compensated for the disputed commercial housing can show the legal effect of right preservation and sequential protection of the advance-notice registration of mortgage,and at the same time,it will not infringe on others’ rights and interests.