On Mortgage System

The objective of this thesis is aiming at clarifying the legal nature, jural relation of mortgage laws over marketable housing . With a specific focus on the "faked mortgage"loan issue which creates problems plaguing the legal system severely, this article analyses the formative factors of, harms caused by, and legal nexus of "faked mortgage". Precautionary measures against this nut are also suggested. Methodologies adopted in this article includes: historical analysis approach, comparative analysis approach. This research is carried out with a focus on combining theoretical analysis with transactions in reality. This article consists of three chapters. Chapter One is devoted to an archeological retrospection of the etymology of mortgage and the transplantation of this very system into this land; Chapter Two is for legal analysis on mortgage on futures marketable housing adopted in China; Chapter Three is focused on "Faked Mortgage"problem and its precautions. Chapter One introduces the notion of mortgage system from an etymological perspective, briefly presents mortgage systems in Anglo-American law and their evolutions, mortgage in Hong Kong law and mortgage in China. Chapter Two reviews the process of operation and legal character and jural relation of mortgage on futures marketable housing in China. Chapter Three presents the current conditions, formative cause, and harmful consequences of "faked mortgage "exists in China. Legal essence of and precautions against "faked mortgage"are also dealt with. The primary achievement of this study lies in the clarification over the nature and legal relation of mortgage on futures marketable housing in China. A negative assertion is proposed against present domestic theories on mortgage on commodity house. Specifically, doubts and dissents against those wildly held "Theories of Hypothecate"and "Theories of Transference of Title as Guarantee"by practitioners in profession and by noted scholars in academia respectively are presented. The points held in this article is based on those doubts and furthered by a new proposition in which two phrases approach is recommended as to appraising the legal essence of mortgage on commercial housing. That is to say, the whole process of mortgage should be viewed as two phrases divided by one critical point:the approval of the check and acceptance certificate and the completion of making of certificate of titles and other documents of house. Before this very point, the legal essence of mortgage is pledge of obligational claims, in other words, it means a pledge is established to the bank over the obligational claims to the commercial housing buyer and against the developer. After this very critical point is the phase in which the essence of mortgage should be regarded as hypothecation. That is to say, buyer of house create a hypothecation for the benefit of bank over title of house. The other achievement of this study is the dealing with "faked mortgage"loan suggested in this article. Faked mortgage loan has been plaguing the operation of banking business of mainland China for quite a long time, which is as severe a problem as threatening the security of financial stability. With an eye on the reality, an in-depth analysis is carried out over this annoying problem, especially on the essence and formative cause of the "faked mortgage"and on its harmful consequences. Based on those analysis a set of precautions with practicality is recommended.