The Legal Effects Of Advance Notice Registration Of Mortgage Of Commercial House Purchased In Advance

The system of advance notice registration of mortgage of commercial house purchased in advance is very important to the implementation of the pre-sale system and plays a decisive role in the real estate transaction market.Because the law of China on advance notice registration of mortgage of commercial house purchased in advance is unsound,the nature and effectiveness have been controversial.Therefore,based on the analysis of the particularity and complexity of mortgage of commercial house purchased in advance and the legal characteristics of advance notice registration,this paper seeks to form a system of effectiveness that conforms to the principle of fairness,will,good faith;reflects the concept of economy,efficiency and interest equity;meets the needs of commercial practice.In addition to the introduction and conclusion,this article includes four parts:Part Ⅰ: This part is to sort out judicial cases and summarize controversial issues.the judicial phenomenon which the same case has different judgment occurs from time to time,which not only damages the judicial credibility and legal authority,but also is not conducive to the maintenance of transaction safety and the healthy development of commercial housing transaction market.The system of advance notice registration of mortgage of commercial house purchased in advance often occurs these arguments: The object of advance notice registration of mortgage of commercial house purchased in advance is real right or creditor’s rights? which legal effects does the advance notice registration of mortgage of commercial house purchased in advance have? Does the right holder of advance notice registration have the right of priority in compensation and what are the conditions?Part Ⅱ: The second part explores the causes of these disputes.The causes of these disputes mainly have the following several aspects: The relationship between the mortgage of commercial house purchased in advance and the mortgage of building under construction,the uncertainty of mortgage,the compatibility of mortgage,the complexity of legal relations among the three parties(pre-purchasers,developers and loan banks)and the incompleteness of legal rules.Part Ⅲ: The basis of the effects.The nature of advance notice registration of mortgage of commercial house purchased in advance decides the effects.The advance notice registration of mortgage of commercial house purchased in advance is not the registration of pledge of rights,also is not the registration of mortgage of building under construction.The right of the advance notice registration of mortgage of commercial house purchased in advance is a special claims which has some effects of real-right,is different from the right of mortgage and the creditor’s rights of unregistered mortgage contract.Part Ⅳ:Perfect the system of the effects.The legislative purpose of the advance notice registration of mortgage of commercial house purchased in advance is to ensure the realization of the right of mortgage,to balance the interests of all parties,keep the safety of trade.In order to realize these purposes,we should perfect the system of effects,and form a three-in-one effective system which includes beforehand guarantee,afterwards guarantee and special guarantee.First,the beforehand guarantee of the effect of restriction in disposition.The effect of restriction in disposition provides guarantee for the claim right,and gives consideration to the interest of the obligor and the obligee.In addition,the effect of restriction in disposition conforms to the compatibility of mortgage and does not violate the concept of making the best use of everything.Second,the afterwards guarantee of the effect of sequence preservation.Under the effect of sequence preservation,the formal registration of mortgage can obtain the sequence of advance notice registration.On the one hand,the effectiveness of sequence preservation is important to the effect of restrictive measures.On the other hand,the effect of sequence can solve the dilemma of attachment.Third,the special guarantee of conditional priority in compensation.The function of the special guarantee is to grant the priority of claim to the holder of the advance notice registration of mortgage.In some special conditions,this effect is reasonable,necessary and feasible:Firstly,take the purpose of mortgage contract,honesty and credibility,fairness,publicity,as well as the particularity of the debt into account,the special guarantee does not produce substantial harm to the person that buyer of house,the developers,and all kinds of third parties,which shows that it is reasonable.Secondly,because of the obstacles to the transition from advance notice registration of mortgage to formal registration of mortgage,the inadequacy approaches of relief,and the advantages of the special guarantee in saving resources,improving efficiency,maintaining the development of the real estate market and solving the difficulties in implementation,the special guarantee is necessary.Thirdly,the rationality and feasibility of the special guarantee can be enhanced by setting special conditions and unifying applicable standards.Therefore,under the basic guarantee of the effect of restriction in disposition and the effect of sequence preservation,supplemented by the special guarantee of the effect of priority in compensation,the system value of the advance notice registration of mortgage of commercial house purchased in advance can be realized.