| In order to ensure the realization of the creditor’s rights on time,the creditor may sign a real estate mortgage contract with the debtor or a third party,and set up a mortgage right on the specific real estate,so as to ensure the realization of the creditor’s rights when the debt matures.According to the law,the mortgage of real estate is established when the mortgagee and the mortgagor have successfully handled the mortgage registration.However,after the signing of the mortgage contract,the parties have not registered,resulting in disputes that the mortgage cannot be established.After the implementation of Article 15 of the property law,it is stipulated that the validity of the mortgage contract will not be affected if the mortgage is not registered.Article 215 of the civil code follows this view.But in this case,the mortgagor should bear what kind of responsibility,there are different opinions in the judicial trial with the civil and commercial law circles,there is no unified judgment,often appear "different judgments in the same case".On the premise of not handling the mortgage registration,the mortgagor should bear what kind of responsibility,this paper first combs the judicial judgment,summarizes the mortgagor’s position of bearing different responsibilities and puts forward the problems and defects in the judicial judgment.Secondly,combined with the theory of juristic act of real right and the principle of distinction,it comprehensively analyzes the influence of the real estate mortgage registration system on the mortgagor’s liability.Thirdly,it makes a theoretical analysis of the responsibility in judicial adjudication.Finally,it puts forward the corresponding remedies for the problems and defects in the judicial judgment.This paper is divided into four chapters to discuss the mortgagor’s responsibility of not handling the mortgage registration.The first chapter summarizes the related concepts of not handling the real estate mortgage registration,summarizes the nature of the real estate mortgage system and the consequences of not registering,and briefly describes the theoretical basis for determining the mortgagor’s responsibility of not handling the real estate mortgage registration system as the distinguishing principle,And briefly describes the type and nature of the mortgagor’s liability.The second chapter is about the legislation and judicial application of unregistered real estate mortgage disputes.By analyzing the legislation of civil code and judicial interpretation on this issue,and sorting out and analyzing the judgments in judicial practice,it is concluded that the courts at all levels in China generally require the mortgagor to bear the liability for fault in contracting,the liability for guarantee,the liability for breach of contract and the liability for breach of contract In this paper,the author puts forward some questions about the defects of legislation and judicial practice and leads to the following.The third chapter analyzes the specific responsibility of mortgagor when the real estate mortgage is not registered,and first discusses the situation that mortgagor does not need to bear responsibility when the mortgage registration can not be handled due to the reasons of the mortgagee and the registration authority.It also discusses the problem of the mortgagor’s liability when the mortgagor is unable to handle the mortgage registration,including the unreasonable application of the liability for breach of contract,the liability for guarantee and the liability for fault in contracting.Finally,it tends to be the liability for breach of contract,but the current law needs to be adjusted.The fourth chapter is the legislative and judicial suggestions when the real estate mortgage is not registered.It should specifically clarify the type of the mortgagor’s liability,improve the system of the mortgagor’s liability for breach of contract,and solve the problem of the exercise stage of the liability for breach of contract. |
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