A Study On The System Of Mortgage And Guarantee By Properties Of Construction

The transaction of properties under construction is an important part of real estate economy. And the loan against mortgage by properties under construction, as the main manner of buying and selling, occupies an essential position in the real estate transaction. Accordingly, the legal issue of mortgage and guarantee by properties under construction is becoming an important part of laws governing real estate economy . The significance and the practical value of this issue will grow greater with the development of real estate economy.The history of mortgage and guarantee by properties under construction is over a hundred years in developed countries and has been developed to a set of systematic regulations for operation. In our country, the mortgage and guarantee by properties under construction only has been developed for 10 years with different operating manners in practice and the related legislation is behind thedevelopment in practice ------ there is no basic legislation whichmentions this issue. In the field of legal research, we face the same situation: no systematic study, no monograph, the only works we can find are some articles in some magazines which concentrated only on the debate of legal nature of mortgage by properties under construction.But judicial practice has to face more and more realistic issues such as the establishing of mortgage right, the scope of mortgage effective, the relationship of all relevant legislation and the protection of rights and profits of and the remedy for all concerning parties. Owning to the lack of consolidated legislation and different views in the field of judicial practice, different judgments are found. Thus, it is very important and urgent to strengthen the theory study andadvance the legislation of this issue .This article focuses the legal nature and effect of mortgage by properties under construction (including establishing and scope of effect of right of mortgage) by analyzing lots of legal issue of mortgage by properties under construction which have been countered in practice of aiming to solve practical problems. This article is expected to provide some guidance for judicial practice before we have some consolidated stipulations and provide some reference for future legislation.