Study On Legal Effect Of Unregistered Real Estate Mortgage

Against the background of the formalism of creditor’s rights formalism and real estate rights change announcement in China,real estate mortgages can only be established through legal registration.Unregistered real estate mortgage rights have not been established.At this time,creditors cannot request the realization of security real rights.Priority is given to the sale of collateral at auction.Many such situations exist in practice: a third party provides a real estate mortgage guarantee for the debt,and has signed a real estate mortgage contract with the creditor,but has not completed the mortgage registration for various reasons.When the debt expires,the debtor cannot pay the debt,The mortgagor defended on the grounds that the real estate mortgage was not registered and the mortgage right was not established in an attempt to waive its guarantee responsibility.This is not a rare case,and the phenomenon of "different judgments in the same case" has also appeared in judicial practice.This article mainly studies the issues of the legal effect of the mortgage and what rights the creditor can claim against the mortgagor,and what responsibilities the mortgagor should bear to the creditor when the mortgagee has signed a real estate mortgage contract with a third party.This article consists of six chapters including four chapters and conclusions.The first part of the introduction mainly introduces the origin of the research,including the topic selection,the purpose of the topic selection,The significance of the topic,and the research review.The second part is an overview and analysis of the relevant factors that affect the effectiveness of unregistered real estate mortgages,including the effects of different property right changes on the effectiveness of real estate mortgages,the structure of mortgage contracts and mortgage rights,and the significance and effectiveness of real estate mortgage registrations.The third part is a review of the status and problems of judicial rulings on the legal effect of unregistered real estate mortgages.It summarized the opinions of the judiciary on such cases,and leads to the following analysis of relief paths and responsibilities.The fourth part is to discuss whether the mortgagor should bear the guarantee responsibility when the real estate mortgage contract is signed but the mortgage registration is completed.It analyzes some court practices and theoretical theories,analyzes the theory of invalid behavior conversion and constitutes atypical guarantee.Explaining the path,it is concluded that the path of guarantee cannot make the mortgagor assume the responsibility of guarantee to the creditor.The fifth part discusses another explanation path,that is,whether the creditor can request the mortgagor to take responsibility for the breach of contract.It is concluded that when the mortgagor defaults and does not register the creditor,it should bear the creditor’s default liability for continued performance or damage compensation,and Four specific issues were discussed: the treatment when the registration is not performed due to the registration authority,the treatment when the creditor is not exercising its rights,the limitation of damages,and the way the liability is assumed to be the liability.The last part is the conclusion,which summarizes the response when the real estate mortgage is not registered: the recognized creditor can claim the mortgagor’s liability in the contract law according to the mortgage contract.