Analysis On The Phenomena Of "Louhua Mortgage" Under Construction In China

"Louhua Mortgage"is a widely-adopted financing means in the building transaction in the developed countries and areas, of which the prominent characteristic is that the purchaser can get the loan from the bank by using the unfinished house as the pledge. This means is also called as"forward house mortgage"."Louhua Mortgage"was introduced from Hongkong and used in the Chinese mainland in 1990s, and has played an important role in flourishing the real estate market. However, until now, there is not a specified law that has been legislated for managing this kind of transaction in China. Furthermore, scholars also disagree with each other about"Louhua Mortgage". Considering the development of the real estate in the Chinese mainland and the incomplete system of mortgage, this dissertation attempts to propose some ways solving the problems on the real estate-mortgage in China, especially in the Chinese mainland, by analyzing systematically the development of the mortgage system.This dissertation consists of four independent chapters. One additional prelude represents the chief background and the implication of this research.Chapter 1 analyzes some important concepts, applications, and development of the mortgage system in Britain and Hongkong. The mortgage system has an origination of the way of security in Britain law. Based on the striking characters during the different historical periods, the development of the mortgage system in Britain can be decomposed into three distinct stages: mortgage in the British common law, rules of equity on the mortgage, and mortgage in modern British law. Apparently, Hongkong's mortgage system was introduced from Britain and the United States. However, the Hongkong mortgage system is distinguishable from British mortgage because of the distinct cultural and social environment of Hongkong, and therefore has some typical characters. In terms of concepts and applications, Hongkong's mortgage system includes broad mortgage and narrow mortgage by analyzing the system of mortgage and pledge in Hongkong. It is Hong Kong's creative use of mortgage system that has promoted the development of the real estate of Hongkong. It is noteworthy that, however, Hongkong's real estate-mortgage only includes public justice mortgage.Chapter 2 introduces in detail the mortgage system on the basis of the analysis of Hongkong's law. The nature of"Louhua Mortgage"is revealed by analyzing the concept, the function, the legal relation, and the quality of"Louhua Mortgage".Chapter 3 systematically analyzes the phenomena of"Louhua Mortgage"in the Chinese mainland. The investigation on the appearance of"Louhua Mortgage"in the mainland makes it clear that"Louhua Mortgage"does not exist in the Chinese mainland, which is in nature one mixed form of multifold legal relationships in the system of Property Law, one transaction means that the parties create using the institutional tools such as the pledge, the guarantee, and repurchase and combining the estate transaction, the loan, and rights pledge. Furthermore,"Louhua Mortgage"existing in the mainland is not one simple type of Security Interests. Following the analysis on the nature of the phenomena of"Louhua Mortgage"in the mainland, some common operations involved in"Louhua Mortgage"in the mainland are represented, including the process and the main terms embodied in the contract of"Louhua Mortgage". At the end of this chapter, the author again focuses on the nature of the phenomena of"Louhua Mortgage"in the mainland on the basis of the analysis of some present theories, and argues its existing as a mixed form of divers legal relations rather than the real system of"Louhua Mortgage".From the points of the phenomena of"Louhua Mortgage"and the social demand, Chapter 4, the last chapter, points out the necessity of standardizing the phenomena of"Louhua Mortgage"in the mainland, and proposes some ways in order to solve the problems existing in"Louhua Mortgage"in the Chinese mainland. However, the standardization of"Louhua Mortgage"in the mainland could collide with the present system. Should the real"Louhua Mortgage"system or the transferring guarantee system similar to the former be introduced? The author approves of the introduction of the transferring guarantee system in order to keep the traditional legal system of Property Rights Law and Guarantee Law. Apparently, the introduction of any system is always faced with some obstacles and risk. In order to make the introduced system well serve the society, it is the key to overcome the inherent limitation of the introduced system and balance the relation between it and the present legal system.