Study Of The Legal Issues Of Real Estate Mortgage

Mortgage has been carried out in the Main Land more than ten years. During this period, many scholars have made many theories in the aspect of its legal nature, the establishment of mortgage rights and other relevant systems, but many of them ignore the characteristics of mortgage appearing its practicing in the Main Land. Even though it has the forms of Anglo-American law system, it hasn't their nature. Even though it has the nature of hypothecate and pledge of Continental law system, it hasn't their forms. Therefore this essay makes different qualitative analysis from different situations of the basis of the practicing characteristics of Chinese mortgage. This essay not only helps people make knowledge of Chinese mortgage but also helps the legislators standardize the system of mortgage under the frame of the current legal system.The essay is made up four parts. The first part analyzes the production of mortgage based on the origin of mortgage and summaries its characteristics appearing in English, America and Hong Kong. The second part is the most important part in the essay, in which it makes an analysis of the legal nature of mortgage of our country commodity apartment. Mortgage has been practicing in the Main Land before it is legislated. Therefore if we want to study the legal nature of Chinese mortgage, we must be on the base of its practicing characteristics. In this part, the first thing is to analyze and summary its practicing characteristics in China. The second thing is to mention few theories such as Conveyance, Hypothecate, Pledge and the Unit of Agreement 1. Conveyance. The practicing characteristic of mortgage that transfers some interests of the mortgaged property is similar with Conveyance's character that transfers the proprietary tights. However they are different from their transferring rights. 2. Hypothecate and Pledge. Mortgage, Hypothecate and Pledge are different from their legal subjects, legal relationships, the way of its rights realizing. But on the other hand, they have the same nature that the mortgage of completed apartment and the second period of the uncompleted apartment have the same nature of Hypothecate and the first period of the uncompleted apartment is belong to Right's Pledge. 3. The Unit of Agreement. This theory believes that mortgage is an independent way of trade composed of the sale relationship of...