Hypothecation Of Real Estate Usufruct

The pledge of right to fructus of real estate is not ordained in the Security Law of the People's Republic of China. Most as early as in the law acknowledged what right to fructus of real estate pledge concept was the Supreme People's Court in December, 2000 about is suitable "Security Law" certain question explanation, the 97th stipulation: "by right to fructus of real estate pledge such as highway bridge, highway tunnel or road ferry spot leaves the archery target, (other rights can pledge) according to the guarantee law 75th (4) item stipulation processing". But it merely has made the principled stipulation. "Real Right Law" recently issued and executed has had the evasion manner to it, forced it to integrate merely "the account receivable pledge" in the concept, moreover, the object scope as well as the realization of the right also lacks the corresponding stipulation. However, is opposite with the legislative hysteresis, takes one kind of brand-new guarantee form, pledge on the road charging right, the land and the house rents and so on in the commercial bank lending guarantee service has widely used. The result is that the legal pledge of right to fructus of real estate cannot be protected, which seriously affects the transaction security, restricts to perform the latent financing function of pledge of right to fructus of real estate, and prevents the economical development. Therefore, it is necessary to stipulate explicitly the pledge types of right to fructus of real estate in the legislation.This thesis attempts to probe the related legal matters about the pledge of right to fructus of real estate with the fundamental theory of the law relating to rights over things and the security law by the way of positive analysis and legal norms analysis and on the basis of analyses of legislation about the pledge of right to fructus of real estate and practice of financial guarantee. This thesis is made up of three parts.The first part expounds the practice and the theoritical disputed point of the pledge of right to fructus of real estate in our country. From two cases,we can see that there are some theoretical points of controversy on the pledge of right to fructus of real estate : legal attribute of right to fructus of real estate pledge; whether it can be used as the right pledge; the scope of the object; how does the pledge set up, the public announcement way, to realize as well as the relative risk prevent effectively.The second part is the theoritical analysis of the pledge system of right to fructus of real estate. There are four viewpoints on legal attribute of right to fructus of real estate pledge: usufruct of immovable property, general creditor's rights or accounts receivable, new special property rights, franchise rights. The essence of right to fructus of real estate is the qualifications to obtain certain creditor's rights to the unspecific person. It should be usufruct of real estate. As a property that is not ownership, it is right pledge which right to fructus of real estate guarantee should adopt. The object scope may include the gains right of roads, bridges, rural power grids, radio and television networks and some other public infrastructure, real estate of citizens or legal persons, all agricultural receipts right based on the ownership of the contracted farming land, etc. Under the China's existing legal framework, it mainly has the following problems: lack of legal basis, difficulties in assessing the value of benefits, not standardized operation and ways of realization of the right is hard determine. So there are both legal and economic risks.The third part is thoughts to improve the pledge system of right to fructus of real estate. Firstly, I believe that our laws should confirm the pledge of right to fructus of real estate. Taking it as a pledge, has incomparable superiority than real estate charge, the movable property pledge and the other guarantee way. Moreover, combinating it with other guarantee way (such as floating charge), can give full play to guarantee effectiveness, enhances the amount of financing and reduces the transaction risk. It is not only following the demand of market, controlling risk effectively, but also is embodying the principle of autonomy of will and the market economy spirit-limited resources benefit maximization, is the result of mitigation of the Numerus Clausus Principle. Secondly, proposed that it should use the written contract form, the public announcement way should use the registration. Thirdly, about the realization, not only can directly control and the exercise of the gains right, but also can sale and put it for auction, be repaid from the proceeds preferentially. Finally, about risk prevention, pledgee should establish a scientific system of risk assessment, deal with a subject of the feasibility and legality of the pledge and, conduct a comprehensive review and prudential assessment on the legal, financial, credit, market, and other risk points; assess of the value of right to fructus of real estate prudentially; make a repayments mechanism with the fixed repayment schedule and the dynamic repayments arrangement unified; to establish mechanism of informational communication between the parties and control and supervise information and flowing direction of revenue timely; to set up the risk prewarning mechanism as soon as possible in order to prevent accidents before they occur.