Research On The Protection Path Of Mortgage In The Free Recovery Of The Right To Use Land For Construction Due To Idleness

Land is an important resource in China.The vigorous development of the real estate industry has promoted the development of China’s economy,but the regulation and guidance of the real estate market is also increasingly important.Among them,the free recovery of the right to use the land for construction in accordance with the law has become an effective measure to curb land hoarding,land speculation and excessive price rising.However,the free recovery of the right to use the land for construction involves not only the legal relationship between the country and the holders of the right to use the land for construction,but also the interests of the mortgagee existing in the right to use the land for construction.Although the existing legal norms in China have stipulated the conditions and procedures for the free recovery of the right to use the land for construction due to idleness,there are few provisions on the interests of the mortgagee on the right to use construction land,and the mortgagee has only the procedural right to be copied to the Decision on the Recovery of the Right to Use State owned Construction Land.In judicial practice,the court recognized that the mortgage will not be extinguished due to the free recovery of the right to use the land for construction.However,due to the property right attribute of the mortgage and the gratuitous of the recovery,the mortgage cannot be realized in administrative litigation,and only depends on the realization of the mortgage contract in civil litigation,lacking the path to realize the property right.Therefore,on the basis of summarizing the problems existing in the judicial practice,this paper analyzes the shortcomings of the existing mortgage realization path,proposes a new real right realization path,and provides a solution for the realization of the mortgage in the free recovery of the idle construction land use right in combination with the existing legal norms.At present,there are mainly two views about the realization path of the real right of the mortgage in the free recovery of the right to use the land for construction in the academic circle: "the theory of subrogation on the property" and "the theory of relative elimination of property rights".The core of "the theory of subrogation on property" is to define the land transfer fee obtained from the re transfer of land is the subrogation of the right to use the land for construction.Therefore,the mortgagee can have priority in compensation for the land transfer fee.The limitation of "the theory of subrogation on the property " is that when the land is not transferred again,the legal status of the mortgage is not clear.The core of "the theory of relative elimination of property rights" lies in the fact that after the deduction of the right to use the land for construction by the mortgage,the remaining right to use the land for construction will be eliminated by the free recovery.Therefore,the mortgage right has not been eliminated based on the deducted right,and because there is an imbalance between the national profit from remising the land and the interests of the mortgagee,the mortgagee can have priority in compensation for the land transfer fees obtained from remising the land.The limitation of "the theory of relative elimination of property rights" is that the right to use the land for construction is not actually deducted when the mortgage is established,but is limited when the mortgage is realized.In addition,under the path of "the theory of relative elimination of property rights",whether the free recovery is defined as an administrative act or a real right act,it can be applied,but this is not consistent with the principle of priority of civil liability in China.Both "the theory of subrogation on the property " and the "theory of relative elimination of property rights" propose that the mortgagee can be paid preferentially for the land transfer fees obtained from the re transfer of land,but they only describe the unbalanced interest that exists in fact,and do not demonstrate the rationality of the land owner to bear the burden of mortgage realization from a legal perspective."The new theory of relative elimination of property rights" advocates that the free recovery is defined as a real right act,which will not absolutely eliminate the value of the right to use the land for construction.It is demonstrated by the theory of right exercise that mortgage is a restriction on the right to use the land for construction,rather than the actual deduction of power.Using Hohfeld’s fundamental legal conception as a tool,this paper analyzes that the transfer of the value of the right to use construction land caused by free recovery is the same as the transfer of the right to use construction land and the expiration of the right to use the land for construction in terms of the change of legal relationship,but whether it is based on the occurrence of the expression of will and whether there is a different phenomenon of the value level in fact,and draws the conclusion that the land owner should bear the burden of realizing the mortgage.In the aspect of legal application,the transfer of the value of the mortgaged property caused by the free recovery of the use right to use the land for construction due to idleness can be analogically applied to the relevant provisions on the transfer of the mortgaged property.