Study On The Effectiveness Of Pre-purchase Commercial House Mortgage Adv Ance Registration

The advance mortgage registration of pre-purchased commercial houses is a major transaction link in the pre-sale market of commercial houses in China at this stage.Although Article 20 of the Real Right Law establishes the security effect of advance notice registration,its effectiveness has been controversial.Although it has been determined that the advance notice registration of pre-purchased commercial houses belongs to the scope of advance notice registration,the legal basis concerning the “effectiveness of mortgage advance notice registration” is based on a multi-focus procedure,which is general and repetitive.The most important issue of effectiveness is almost lacking.The lack of legislation and the dispute over the theory led to the confusion of refereeing.Except for introduction and conclusion,the text is divided into four chapters:The first chapter is “The nature and system function of mortgage advance registration”.The bank（lender）enjoys a claim right after the mortgage advance registration,that is,when the statutory conditions are met,the advance purchaser is requested to perform mortgage registration according to the mortgage contract to guarantee the realization of real rights in the future.In order to ensure the realization of this claim,the parties achieved the purpose of preservation through mortgage advance registration.The application of mortgage advance notice registration is beneficial to advance purchase of commercial housing transactions.In the case where the developer assumes the responsibility of periodical guarantee,the risk of the mortgage advance notice registration turning into the mortgage registration is reduced,and the interests among the developer,the pre-purchaser,and the bank are better balanced.The second chapter is “Dispute on the Effectiveness of Mortgage Advance Registration”.Whether banks can give priority to commercial housing based on mortgage advance registration is a major controversy over the effectiveness of mortgage advance registration.Mortgage advance registration is different from the establishment of mortgage registration.The former has no priority in security.The judgment standards of different courts are different,and the judgment results are quite different.Fault is not the principle of imputation of contract liability.It is clear that when the developer is unable to handle or subjectively delays the registration of the property right of the house,it shall bear the guarantee responsibility,but if the bank is not in the process,the guarantee responsibility is subject to the release conditions.The pre-purchaser performs a breach of contract during the pre-sale stage and after becoming the owner of the house,and assumes joint and several liabilities with the developer,or may directly grant the bank a subrogation right to protect the realization of the right.The third chapter is “Determination of the effect of mortgage advance registration”.Regarding the security effect of mortgage advance notice registration,China should adopt a “relatively ineffective” legislative model.As long as the pre-purchaser and developer do not harm the interests of the bank,the law should not absolutely prohibit it.This not only reflects the principle of autonomy and proportionality of private law,but also echoes the spirit of legislation in Article406 of China’s Civil Code（Draft）.It should be affirmed that the mortgage advance notice registration has the order effect.The pre-purchaser can register the mortgage only after becoming the owner of the house,and the mortgage behavior at this time will not affect the effectiveness of the bank’s order.When the developer sets up the mortgage right of the building under construction in advance,the realization of the bank’s rights will not be affected based on the order effectiveness of the mortgage advance registration.Prior to the completion of pre-purchased commercial buildings,there may be a problem in the order of realization of the right to realize the mortgage of the building under construction previously established by the developer and the bank’s mortgage advance registration.In the event of a breach of contract,the periodical guarantee liability will also protect the bank’s claims.The fourth chapter is “Right conflict and equity in mortgage advance registration”.Regardless of when the bank’s mortgage advance registration is established,the contractor’s rights have legal priority.The right is optimally realized when the pre-purchaser belongs to a property that is not for real estate purchase and has paid all or most of the purchase price.Pre-sealing measures Prior to the pre-sale of commercial housing,the bank’s right to register mortgage advance notice must not hinder the process.Commercial houses that have registered for mortgage advance notice will not affect pre-sealing or sealing measure,and banks can still apply for mortgage registration and give priority to their rights.Although the mortgage advance registration cannot counter the disciplinary enforcement such as auction and liquidation,the pre-purchaser can raise the objection of excluding mandatory enforcement based on the advance registration of ownership,thereby indirectly protecting the rights of the bank.The government’s collection action will block the bank’s mortgage registration.After the pre-purchased commodity housing is collected,the bank can receive the corresponding compensation.The possible innovations in this article are as follows: When studying the effectiveness of mortgage advance notice registration,in order to avoid staying at the level of the theoretical norms that should be empty,it should analyze the disputes in the adjudication,combining with the provisions of Article 406 of the Civil Code（Draft）.The revised part of Article 191 of the Property Law uses the timeline of commercial housing from pre-sale to being enforced as a timeline to sort out the effects of mortgage advance notice registration and strive to effectively resolve the issue of the realization of the rights and obligations of the transaction subject and stakeholders.The shortcomings of this article are: due to the limited academic ability,some problems are only at an end and no in-depth demonstration has been carried out.The focus of research is limited to the effectiveness of the system,which will be further improved and learned in the future.