The Effect Confirmation Of Mortgage Contract

As the most significant real rights guarantee system in civil law of every nation since the Roman law, hypothec habitually possesses the good reputation of the king of real rights guaranty. Being similar with other countries, the Guarantee Law of our country confirms the mortgage system of the immoveable property and also that of the movables when relates to the stipulation of hypothec system. Supreme People's Court makes some supplement and revision to this in the interpretation of the Guarantee Law of People's Republic of China. Moreover the Law of Real Rights makes further stipulations on o the mortgaging system. Our country is a country that is being in the community mould revolving. Although we makes various statutes, but the stipulations of the statutes is not consummate and there's much problem with implementation of the statutes. As to the mortgage contract, which acts as the guarantee to fulfill the primary contract, it is attached to the primary contract. It is also one important kind of expenses measures. Its system is being closely linked against our building of socialism market economy. Since the hypothec that the contract sets up is one kind of guarantee of real rights, real rights is against all common people and is perfect and exclusive. Mortgages publish system endows the hypothec with public belief force by publishing. It is the guarantee to keep the hypothec perfect and exclusive and also the base to make that the authority man enjoys the superiority to be compensated for and chase to the objects. In our country's present statute systems, mortgage contract is not only regulated by the (?)ontract Law but also by the Guarantees Law, the Real Rights Law and so on. Hence the effect confirmation of mortgage contract is very controversial and there's much controversy in the judicature practice.In view of this problem, the writer makes definite first that mortgage contract is one of the contract and it has all the properties of the contract. At the same time the writer also demonstrates that mortgage contract is not the contract of the common sense but one kind of particular real rights contract. It has its peculiarity. As the real rights contract, the aim of the mortgage contract is to set up hypothec and is one kind of object guarantee. It is closely linked to the registration action of hypothec and can not be separated into creditor's rights action and the objects independently. The registration action of hypothec ought to be treated as the special document which makes the mortgage contract effective. It is not solemn to agree that the mortgage contract is effective when the mortgage contract is not registered and it also is irresponsible the authority man and the third man. Meanwhile the writer proposes some constructive ideas aiming at the confusions and faults of our country's present hypothec registration, such as the advance notice registration right that the hypothec man enjoyed, wishing that it can settle some problems existing in mortgage authority registration and combine the mortgage contract and the hypothec registration organically.In short, since the mortgage statute system of our country does not regulate perfectly and the statute systems which match to the mortgage statute system does not establishes completely, for instance consummate credit system, insurers system, the credit viewpoint and so on so forth. It is very perilous to hastily carry on the reformation of the real rights statue system without thorough theory research and the economic environment matching to it as the base. The writer wishes his views on the confirmation of mortgage contract's effect in the article can become some rough and shallow proposals to the future legislate of the mortgage system.