| Mortgage is a guaranty system of common law countries, and was introduced into China mainland in 80s of the 20th century. In the course of transplant, many Chinese traits have been attached to it, which makes the mortgage in China much different from that of Hong Kong and other common law countries. Nowadays, the mortgage, known as using tomorrow's money to enjoy today, has found its wide application in big sum consumption such as car and housing, especially housing.And it has now become the main tool of payment in commercial housing.The rapid spread of mortgage is because of its flexibility. It meets the financing need in Chinese real estate by combining real estate exploitation and real estate selling. The mortgage of commercial house under construction has the following advantages: Firstly, this makes the dream of money-short house buyers come tree, thus boosting the real estate selling and economy development. Secondly, mortgage expands bank's business scope, and banks can avoid providing loan to the real estate exploiting company and house buyers respectively. By doing this, the capital will not be engrossed separately. And this abates the capital short condition too. And it is safer for banks to lend money to consumers than to real estate exploiters. Thirdly, the real estate exploiter get money from the bank in an one-off way, which helps the exploiter realize its profit even before the houses are built. So , mortgage of commercial house under construction is beneficial to real estate industry, finance industry and housing reform of China.But Chinese legislation on mortgage is far from consmnmation, and the Property Law of China passed in March 16, 2007 does not stipulate it. The lack of correlative law and theoretic controversy makes it hard for courts to verdict. So, it is urgent to study mortgage in theory and to make law to regulate mortgage. Under such a background, this thesis is going to analyze the legal attribute of the mortgage in China via studying the theory and practice of mortgage in homeland, Hong Kong Special Administration Region and abroad. And this thesis will also analyze suitable legislation advice and the improvement of some interrelated legal system.The whole thesis is composed of 4 parts with about 27,000 words. Part one begins with the origin and derivation of mortgage analyzing the evolution and characteristic of mortgage in England and Hong Kong. Originally, English mortgage had the character of ownership transfer. Should the loanee not pay back the debt, the creditor should take over the ownership of the guaranty, and the loanee could not get the guaranty back unless he or she perform his or her liability. In 1925, England passed a property law which imported the registration system from civil law countries. And thus, the security interest should be fulfilled only after the guaranty auction and the liquidation of the debtor. The court could award the guaranty to the creditor only when the auction of the guaranty is impossible. So, the England mortgage and Chinese pledge are actually much alike.At the very beginning, There was no substantial difference between Hong Kong's mortgage and traditional mortgage in Anglo-Arnerican law. But with rapid development of Hong Kong's industry of real estate, they are much different Hong Kong's mortgage today only means mortgage of estate under construction.Part two analyzes mortgage in China. This section analyzes how the mortgage was introduced into China, and how it made indispensable contribution in helping financing and real estate economy. By analyzing the mortgage process and the right and obligation of house buyer, real estate developing company and bank, it is natural to conclude that mortgage in China is different with that of common law countries in right shift and hypothec realizing.Part three deals with the legal attribute of Chinese mortgage. Mortgage is usually stipulated or interpreted as legal charge of real estate in Chinese legislation or judicial interpretation, and no law has given a unitive regulation on the nature of mortgage of commercial estate under construction. Though it is disputing, this chapter defines the nature of mortgage as a new type of guarantee by comparing with other warranty types such as legal charge, hypothecating right and remising warranty.Part four is about the improvement of the mortgage of house under construction in China. This thesis points out that, the legislation on mortgage in China is far from perfect, and that different judges in different place of China tend to verdict the same type of case in different ways. Secondly, this thesis hold that the mortgage of houses under construction should be stipulated in the Security Law of the People's Republic of China. Finally, this thesis makes a preliminary discussion on the improvement of some correlative system such as proclaiming registration system, mortgage insurance, Mortgage Backed Security and so on. |
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