Research On Advance Notice Registration System Of Pre-purchased Commercial Housing Mortgage

With the establishment and development of real estate development market,pre-sale of commercial housing has become the main method of real estate business and the object discussed in this article——the advance registration system for mortgages of pre-purchased commercial housing emerged as the times require.To elaborate on the connotation of this system,most house buyers currently cannot pay the purchase price at one time.Most of them sign a personal housing loan contract with a bank after paying a certain percentage of the house price.In order to ensure the realization of creditor's rights,the general practice is to require a home purchase.The person uses the pre-purchased commercial house as mortgage property to guarantee,but because the commercial house has not been completed at this time,the buyer has not yet owned the ownership of the house.In practice,it is not possible to register the mortgage right.Usually,the pre-purchased commercial house mortgage registration is required.The mortgage advance registration system and the advance registration system are also related to the mortgage system,and the system structure is very complicated.Regarding the nature and effectiveness of advance notice registration of mortgages,there is no clear explanation in current laws and regulations,and the academic community has not formed a unified view on this.In the field of judicial practice,it has caused a large number of different judgments in the same case.Among them,the judgment as to whether the loan bank can enjoy the priority repayment effect according to the pre-purchased commercial house mortgage loan system has even completely opposed each other,causing judicial confusion.The first chapter discusses the status quo of the advance notice registration system of pre-purchased commercial house mortgages and analyzes the existing legal problems.Firstly,through a large number of case studies,the focus of the case's controversy is summarized.The main issues are whether the loan bank enjoys the priority right of compensation and whether the developer bears joint and several liability.The latter is directly affected by the former point of view.This article specifically Three judgments are summarized on whether the loan bank has the right of priority.Firstly,negative right of priority;Secondly,directly affirming the right of priority;Thirdly.affirming the right of priority for other reasons.In practice,the proportion of negative and positive judgments is equivalent,and there is also a regional judgment tendency: economically developed regions are more inclined to judge loan banks to enjoy the right of priority to protect the interests of banks.Combined with the reasons for the judgment,it analyzes two problems in the current judicial practice: one is that the nature of advance notice registration of mortgages of pre-purchased commercial houses and the registration of mortgage rights are blurred.The second chapter analyzes the reasons for the judicial dilemma of the advance notice registration of mortgage of pre-purchased commercial houses,which is mainly analyzed from three aspects.Firstly,there are ambiguities and conflicts in legislation.The "Real Property Law" only contains general provisions for advance notice registration,but does not provide advance notice registration of mortgage rights.However,the "Regulations on Housing Registration"(abolished),"Implementation Rules for the Provisional Regulations on Real Estate Registration" include some local laws and regulations such as The "Shanghai Real Estate Registration Regulations" clearly includes mortgages of advance notice commercial housing into the scope of advance notice registration,and there is no clear stipulation on the nature and effectiveness of advance notice registration of mortgage rights.It is further concluded that at the legislative level,there is a conflict between the subordinate law and the Real Right Law.The mortgage in the Real Right Law takes effect once it is registered.The mortgage does not distinguish between this registration and advance notice registration,and the concept of advance notice registration of mortgage rights is created in the lower level law.The nature is blurred.Secondly,the improper judicial analogy applies to the mortgage of the building under construction.This section firstly analyzes the connotation of the mortgage of pre-purchased commercial buildings and the mortgage of buildings under construction to distinguish them.And then analyzes the nature of the mortgage of buildings under construction,and concludes that the mortgage registration of buildings under construction is the conclusion of this registration.Thirdly,from the social level,many courts have no choice in protecting the interests of banks.In the case that the bank has paid the corresponding consideration and has taken huge risks,some local courts tend to give priority to banks in consideration of factors such as the principle of fairness right to compensation to maintain financial stability.The third chapter is the core chapter of this article,which mainly analyzes the legal nature of advance registration of mortgage of advance purchase of commercial housing.From the previous chapters,it can be seen that the judicial differences over the advance registration of mortgages of pre-purchased commercial houses are largely due to the unclear definition of the legal nature.After the difference between the mortgage and the building under construction has been clearly identified in Chapter Two,this chapter will mainly discuss whether the nature of advance notice registration of mortgage rights is the same as that of mortgage rights,,or whether it is qualitatively a type of advance notice registration.Firstly,the first section states that the nature of mortgage registration is different from that of mortgage registration.This section firstly explains several reasons in judicial practice that mortgage registration is substantially equivalent to mortgage registration,and then discusses that comparative law is mainly German law.Real estate mortgage registration system,the concept of a building under construction does not exist in German law,and the object of the burden of the mortgage does not include the building under construction.To solve the problem of mortgages on buildings under construction,we must clarify the qualitative nature of the buildings under construction in the object system of civil law.In terms of property law,future property must establish ownership to have a mortgage.This article considers that there is a logical obstacle to identifying it as a mortgage registration.The second section discusses the nature of advance notice registration,and it is clear that it is not the advance notice registration of the mortgage right,but essentially the advance notice registration of the claim right for the purpose of setting up the mortgage right in the future.Firstly,the origin of the advance notice registration system in comparative law is explained.Secondly,the alienation of the advance notice registration system in the level of the "Real Right Law" and the subordinate law in China is discussed.Finally,it is concluded that the advance notice of claims should be characterized for the purpose of establishing a mortgage in the future.The fourth chapter discusses the effect of advance registration of mortgage of pre-purchased commercial houses.Includes legal effects on registration obligations,registration rights holders,and coordination with the effectiveness of other rights or enforcement measures.First of all,restrict the punishment of obligors.This article further proposes that advance registration of mortgages for pre-purchased commercial houses should not restrict the establishment of mortgages.Secondly,for registered rights holders,they do not enjoy the priority of compensation,but should be traced back to when the mortgage registration is possible at notice registration.And when co-existing with the mortgage of the building under construction,the part of the building under construction should be released first.When both the mortgage registration and the staged joint and several liability guarantees established by the developer exist on the creditor's right,the developer It cannot be argued that it only assumes additional responsibilities due to the guarantee of the existence;finally,the advance notice registration of the pre-purchased commercial house mortgage must not oppose mandatory enforcement measures,including preservation enforcement measures and disciplinary enforcement measures.