On The Legal Nature Of Mortgage

Since mortgage (a way of guarantee) was introduced from Hong Kong to China Mainland, in the transaction of commodity house for civilian use, it has become the first choice for the people who want to buy house, the most acceptable way for the bank to grant loans as well as the best way of payment for the seller to accept. However, in the rules that our country's legislature makes, this way of guarantee is still not acknowledged. Even, in the nationwide legislative rules, the word of "mortgage"has never been used formally.The mortgage of commercial building originates from Anglo-American legal system. It has experienced three stages: legal mortgage, equitable mortgage, and statute law. The system of mortgage has growing to mature in Hong Kong. It has produced two kind of mortgage form: one is mortgage of future estate , the other is mortgage of building. It has formed own characteristic. It spread to China Mainland after 90's of twenty centuries. It combined Chinese concrete practice and came into being its peculiar form..Since mortgage form has not regulate clearly in legislation in our country, as to the law nature of mortgage, many scholars have all kind of argument ,for example, theory of hypothecation, theory of impawn ,and theory of transferred guarantee . Various viewpoint each has its own opinion, and argument is fierce .It is difficult to form one kind of saying to overwhelm the others. It leads to confusion.Mortgage has two kinds of forms: one is mortgage of future estate , the other is mortgage of building. Viewing the problem from the angle of motion and development, mortgage of future estate has stages that should be divided in two stages .theory of stages can explain law nature of mortgage .The line of demarcation is that the building is finished and the houses property businessmen handle the real estate certificate qualifiedly. The law character of the front stage is impawn, the legal character of the subsequent stage is hypothecation .The purchaser of"building flower"pledges a bank to expect that the person enjoys the house property. As to the mortgage of building, it is one peculiar form of real estate mortgage. At the same time, we should grant the effect of standing against the others to the advanced register and should perfect the form of advanced register on the foundation.