Study On The Validity Of Unregistered Real Estate Mortgage Contract

The relationship between the real estate mortgage contract and the real estate mortgage right in our country has gone through the "identity principle" in the era of the Security Law to the "distinction principle" in the era of the Real Right Law and the current era of the Civil Code.A consensus has been reached on the issue that the validity of the real estate mortgage contract will not be affected if the mortgage right is not legally created due to nonregistration.Accordingly,from the cases of the courts,the liabilities of the real estate mortgagor have gone through the "identity principle" of no liability and contracting negligence liability to guarantee liability and liability for breach of contract under the "identity principle".Currently,the "theory of liability for breach of contract" has become the mainstream view.Under the "Doctrine of Liability for Breach of Contract",if the real estate mortgage contract is valid but the mortgage right is not established,the mortgagor shall have the obligation to complete the registration formalities.The mortgagee has no real obligation and only needs to accept the payment from the mortgagor.The mortgagor shall bear the liability for breach of contract to the mortgagee.When the mortgagor bears the liability for breach of contract,the mortgagee may have two remedies,i.e.continuous performance and damages.With respect to the application order,according to the principle of compliance with contract and the principle of party autonomy,continuous performance shall prevail,and damages shall be applied when continuous performance is impossible.When compensation for damages is applied,the mortgagor shall bear joint and several liabilities to the extent that the mortgagee is not repaid,and the scope of compensation shall be subject to the scope of liabilities specified in Article 46 of the Security System Interpretations.