Study On The Conflicts And Solution Of Rights In The Realization Of House Mortgage Right

With the variety of our society and frequency of trade and business, the house mortgage right becomes an important method of circulating funds gradually. People always pursue to farthest bring the products into effect. Therefore, it is normal to set up mortgage right, leasehold right etc in the same house, this also leads to the conflicts of rights in the same house. It is of great importance to realize house mortgage rights and maintain the good economical order that harmonize the right's conflicts and balance the benefits of different parties. However, the existing legislation have many problems, it couldn't adapt to the need of practice. So the article chooses the conflict and solution in the realization of house mortgage right to study, which has great importance of theory and practice.Beginning with basic theory of the house mortgage realization, this author applies the method of comparing analysis and systematic discussion, uses the laws and theory of other countries for reference, combines with the practice, mainly discuss the conflict and solution in the realization of house mortgage right and bring forward reasonable advice. The purpose is to find better way resolve the confliction of mortgage rights and other rights and maintain the market order and stability from the aspect of law through research.The article consists of four sections.The section of introduction firstly discuss the importance of the conflict and solution in realization of house mortgage right and then combine legislation, analyzes the purpose and significance of this article. Furthermore, this author introduces the thinking and method of the article.The first section discuss the basic theory related this article. This section consists of two parts. Part one analyzes meaning and value of realization of house mortgage right. Part two analyzes meaning, type, reason and requirement of right's conflicts. This author points out right's conflict have two types: normal house mortgage and the mortgage of building under construction. This author argues that right's conflict have five requirements.The second section analyzes the basic principles of dealing with the conflicts of house mortgage right and related rights. It contains three principles, including the principle of statutory rights having priority, the principle of register prior to non-register, the principle of set up earlier, right prior.The third and the fourth sections are the most important parts, and this author also brings forth new ideas in this two sections. In this two sections, this author discuss the solution of the conflicts between house mortgage right and other rights in particular, and brings forth some wills and ideas. At the same time points out the shortage of current law, and raises several legislative suggestions.The third section discuss the conflict and solution of right in the realization of common house mortgage right. In this section, This author specifically analyzes the priority rules between house mortgage and house mortgage, the right of mortgage and leasehold, the right of mortgage and tax revenue priority by the principle of set up earlier right prior; analyzes the priority rules between the right of mortgage and project fund with preferential right of payment by the principle of statutory rights having priority; analyzes the conflict and solution between the right of house mortgage and the right of land use mortgage by the principle of set up earlier,right prior; analyzes the conflict and solution between the right of mortgage and pawning right by the principle of set up earlier right prior and register prior to non-register. At the same time, this author raises several legislative suggestions, such as in the future legislation, affirms effectiveness of repeat mortgage; amends the time of setting up the tax revenue priority to the time of confirmation of taxation; confirms the subject, range, and time of project fund with preferential right of payment; amends the current law, admit and allow the house and land use mortgage separately.The forth section analyzes the conflict and solution of right in the realization of specific house mortgage right. In this section, This author analyzes the conflict and solution between the right of mortgage of building under construction and the advance selling commercial house mortgage by the principle of set up earlier right prior; analyzes the conflict and solution between the right of the mortgage of building under construction and the right of persons who buy houses according to the regulation of pre-register and the principle of set up earlier right prior and register prior to non-register.The section of conclusion, on the basis of what have discuss, this author summarizes the solution of right conflicts and the legislative suggestions, at the same time points out the future research direction.