On The Liability Of The Debtor Who Fails To Register The Mortgage Contract For Real Estate Mortgage

In the practice of setting up mortgage right with real estate as the subject matter,disputes caused by failure to register mortgage right often occur.China's "Security Law of the People's Republic of China"(hereinafter referred to as the "Security Law")stipulates that the real estate mortgage contract shall take effect from the date of registration,that is,the legal effect of setting up the mortgage and mortgage contract shall not be achieved unless the mortgage registration is completed.After the implementation of the Real Right Law of the People's Republic of China(hereinafter referred to as the "Property Law"),failure to register in accordance with its provisions shall not affect the validity of the contract.However,there is no clear stipulation in China's current civil and commercial legislation as to what form of legal liability the debtor of the mortgage contract should bear and to what extent the creditor of the mortgage contract can obtain legal relief.In view of the lack of detailed legal provisions,the judicial practice circle and the theoretical circle in China have not formed a unified judgment on this issue.Among them,there are mainly two kinds of theories: guarantee liability and liability for breach of contract.The former theory holds that a guarantee relationship still exists between the creditor and the debtor of the mortgage contract when the mortgage of real estate is not registered.From this point of view,we can convert the mortgage into joint guarantee according to the conversion system of invalid legal act,or generally make the debtor of the mortgage contract bear the guarantee responsibility,but the specific form of guarantee is not indicated.The latter can be summarized as that the debtor does not cooperate with the mortgage registration,which is also a breach of the registration obligation,he shall bear the liability for breach of contract.The paper holds that the conversion of the effectiveness of unregistered real estate mortgage contracts into joint and several guarantees neither meets the applicable conditions for conversion of invalid legal acts,nor can it be supported by clauses,and it also runs counter to the will autonomy of the parties.It is controversial and obviously conflicts with the Property Law that the liability of the mortgage contract's debtor is judged as the guarantee liability,therefore,few courts give such judgement.In contrast,for the debtor's liability for unregistered mortgage contracts for real estate mortgages,the specific reasons for failure to register real estate mortgage contracts should be examined within the framework of the contract law and resolved through the contract's relief path.To a certain extent,the path has been affirmed by the "Minutes of Civil and Commercial Trial Work Conference of the National Courts"(hereinafter referred to as "Minutes of Minorities").It should be noted that the debtor for unregistered real estate mortgage discussed in the paper is limited to a third party,that is,a third party signs a mortgage contract with the debtor with a specific real estate as its target.Because in the case where the debtor of the mortgage contract and the principal debtor are one person,if the principal debtor fails to pay off the debts as agreed,the debtor(debtor of the real estate mortgage contract)shall bear the responsibilities within the scope of its entire property regardless of whether mortgage registration has been conducted.The paper holds that this case will not be discussed as it has no practical significance.The structure of the paper is as follows: Firstly,the chapter describes the status and issues.From the three aspects of legislation,theory,and judicature,the paper makes a detailed introduction and analysis of the disputes and differences in the issues discussed in the paper.In the part of the judicial judgment that there are differences,the debtor that Supreme People's Court have ruled that have not handled the mortgage registration shall bear joint guarantees,leading to a series of related judgments.Based on this,the paper summarizes the problems to be discussed in detail.In other words,is it reasonable for creditors to assume joint and several guaranty liability without registration? If it is unreasonable,what kind of channels should be used to make up for your losses and how should you bear the corresponding liabilities on the premise of affirming the relief path of the contract?Secondly,the chapter focuses on the limitations of special guarantee liabilities that need to be assumed without registering the mortgage.This chapter first introduces the legal basis of special security liabilities,that is,the conversion system of invalid legal acts,and then analyzes and discusses the system,focusing on its constituent elements and limitations when applying it to unregistered mortgage rights.Thirdly,the chapter analyzes the rationality of making the debtor of the mortgage contract bear the liability for breach of contract and the relevant exemption situations.Fourthly,the chapter discusses the specific way to bear the liability for breach of contract and the scope of compensation.It shows that the mortgagor shall bear the supplementary liability within the limit of the value of the underlying real estate,and further proves that the application of the liability for breach of contract is not only based on the law but also concise and straightforward compared with the invalid legal act conversion system.Finally,it is the conclusion of the paper,summarizing and stating personal views.