Research On The Issue Of Advance Notice Registration Of Pre-sale Commercial Housing

In judicial practice,there are many disputes over the legal nature and legal validity of the advance notice registration of pre-sale commercial house mortgages.Because the existing law does not explicitly involve this content,it is difficult to unify the scale of judicial judgment.Whether the creditor can claim that the mortgage right has been established based on the pre-sale of the commercial house that has been pre-sold and the mortgage right has been established,and on this reason,it is required to enjoy the priority right to be compensated for the price obtained from the above collateral auction,sale,etc.,legal practice and academic theory Say nothing.This issue is related to the investment and financing environment in China's market economy,as well as the stability of the financial order and the legal system of collateral property rights,and is worthy of further study and discussion.China's "Guarantee Law of the People's Republic of China" and the "Property Law of the People's Republic of China"separately stipulate the mortgage of pre-sale commercial houses and the mortgage of projects under construction.The "Property Law" stipulates that the construction in progress belongs to the scope of mortgageable property,and the pre-sale commercial house mortgage is not included in the legal mortgageable property.According.to the general understanding,since the construction in progress can become mortgaged property,then the building that is about to be completed and obtained the pre-sale permit can certainly become mortgaged property.However,the different provisions of the two laws and related regulations on the two sets of rules have caused confusion in the practice of setting up the pre-sale commodity house mortgage determination,and failed to achieve its due institutional value.In order to avoid conflicts and contradictions in value judgments,legislators should make consistent value judgments on the same or similar affairs within the same legal system.Separate legislation for mortgage of pre-sale commercial house and mortgage of construction in progress is restricted to the form of transaction,ignoring the essence of the transaction,the existing legal provisions are difficult to solve the obstacles encountered in reality,so the legal nature and legal validity of the mortgage of pre-sale commercial house is inevitable There will be many theoretical controversies,and it is at a loss for parties who are committed to solving such problems in practice.This article starts with the purpose and meaning of the establishment of the pre-sale commercial house mortgage forecast registration,focuses on the analysis of its legal nature and legal effect,comprehensive analysis of various theories and viewpoints,the summary of various theories and viewpoints,analysis of advantages and disadvantages,and put forward their own views.In this paper,the pre-sale commercial housing mortgage notice registration does not have real right effect,it just has the right to claim the right to preserve the effect.Discriminating the nature of legal behavior can,on the one hand,clarify the boundary between advance notice registration and formal registration,and cannot equate the two.If the right holder still needs to complete the formal registration to obtain the real right,and the creditor's right is extinguished or the formal registration is not overdue,the advance notice registration is invalid.On the other hand,the design of the legal system for the advance notice registration of the pre-sale commercial house mortgage is to ensure that the holder of the advance notice registration right has a certain degree of security effect on the security rights that will be obtained in the future,but this kind of security effect cannot be equal to the mortgage right registration.In the case that the law does not meet the practical needs,this article discusses the judicial judgment path for the protection of the owner of the advance notice registration of the pre-sale commercial house mortgage in the trial practice,and puts forward legislative suggestions,that is,the integration of the advance notice registration and the advance notice registration system of the mortgage Mortgage of projects under construction is integrated with the mortgage system of pre-sale commercial houses,and the invalidation system of the mortgage advance notice registration,etc.