"Secondary Housing Mortgage" Transfer And The Effectiveness Of Contract Law Application

" The people’s Republic of China Property Law "(hereinafter referred to as the "property law ") in force since October1,2007, including the191st specific provision, themortgagee is " agree " as one of the elements can transfer the mortgaged property, themortgagee "agree " as mortgage of chattel effective substantive conditions. At present,because most people take the mortgage purchase, leads naturally to mortgage become thesecond-hand housing market is the main force, but in the real deal, most people will notconvenient, mortgage procedures, also without the consent of the mortgagee bank agreed to.With the rapid development of real estate economy, commercial housing prices continue torise, real people suffer an interest to drive back the signed agreement to sell, and the "property law " the relevant provisions of Article191from the court, require confirmationbefore housing sale and purchase agreement is invalid, which caused a great deal ofconfirmation of contract of commodity house business effectiveness of disputes " propertylaw ", from191st in the judicial practice in the specific application problems.By the author of two actual case analysis, from practice to theory, from the case ofsublimation to society, direct questions, the interpretation of " second-hand housing mortgagecontract " recognized the importance of. Based on the "secondary housing mortgage "business situation and judicial practice in judging the validity of the analysis of the currentsituation, to demonstrate the " second-hand housing mortgage transaction " confusion and isnot standardized and scales of justice is not uniform. According to the law the specificunderstanding of the commercial housing and fraudulent sales have no essential difference,real people have no qualification that the housing contracts of sale, during the trial of the casebank said it would accept the buyer payment is a bank agreed to the transfer of housingmortgage, whether the buyer is a bona fide third party, the buyer instead monthly mortgagepayment seller whether to pay off debts to terminate the mortgage right behavior, because realpeople do not cooperate to advance owing on the loan is a loan to pay off debts to terminate the mortgage right, the behavior of bank without consent " second-hand housing mortgage "transfer is valid from seven aspects of the analysis, elaborated the law in the specificapplication of the existing problems and imperfection of legislation. The mortgage in legalrelationship and interests of parties relationship carding, argumentation " second-handhousing mortgage " transfer contract of mortgage in the interests of all parties have no effect.From the provisions of articles, aim to explain the literal interpretation, changes in propertyrights of independence, the honest credit principle, illegal contract invalid judgement of fiveparty shall hold the contract valid argument. Finally puts forward the unified judicial field, themarket area, introduced the relevant judicial interpretations, the case directing, for "mortgage" clearly corresponding relief measures to perfect the legislation.