Research On Mortgagor’s Liability In The Case Of Non-registration Of Real Estate Mortgage

Article 15 of the Property Law Amends Article 41 of the Guarantee Law to determine that the mortgage registration is the wrong clause of the entry into force of the mortgage contract.When the real estate mortgage registration is not processed,the qualification of the real estate mortgagor who provides the third party guarantee will also change.After the implementation of the Property Law,although the failure to register does not affect the entry into force of the real estate mortgage contract,in practice,there are different opinions on the type of liability.However,the essence of the "guarantee" liability is the guarantee obligation,which is different from the nature of the liability for breach of contract.The effect of the real estate mortgage contract has two situations:First,when the contract party only pursues guarantee effect,the registration is not the content of the contract.Second,when the parties to the contract have the effect of clearly forming the property right,the mortgagor does not apply for the registration of the mortgage of the real property to constitute a contract breach.When the contract does not explicitly stipulate the specific liability for breach of contract,the creditor may request the mortgagor to continue to perform the registration obligation.At the same time,the guarantee effect means the premise of forming the mortgage right.At this time,the real estate mortgage contract contains the meaning of the guarantee effect,and the creditor can also request the mortgagor to continue to perform the guarantee obligation based on the effect of the guarantee.It is theoretically and practically meaningful to clarify the effect of the guarantee of a real estate mortgage contract.In practice,when the real estate mortgage registration is not processed,the court decides that the guarantor’s responsibility for the “guarantee” is the performance of the guarantee obligation.In terms of application,the “guarantee” responsibility is different from the constituent elements of the liability for breach of contract,and the specific responsibility of the latter must depend on the determination of the former.The mortgagor has a guarantee obligation and is the main content of the mortgage contract.The definition of “guarantee” liability and the liability of breach of contract is conducive to distinguishing the effectiveness of the security interest from the effectiveness of the guarantee contract,linking the common rules in the Guarantee Law and the Property Law to make up for legal loopholes and reduce the law.The first chapter of this paper summarizes the shortcomings of the judicial nature of the real estate by the different qualifications and reasons of the court’s responsibility for the real estate mortgagor.The main performances are as follows: First,the legal basis for judging the validity of the mortgage contract is not uniform;secondly,the criteria for determining the nature of the mortgagor’s liability are not clear: Third,the reasons for determining the manner of liability for breach of contract are insufficient.The author believes that when the real estate mortgage registration is not processed,the mortgagor assumes the liability for breach of contract or the guarantee liability is not the relationship.The type of liability of the mortgagor shall be determined by the contractual party of the real estate mortgage contract and the creditor’s request.The second chapter of this paper focuses on the fact that the mortgagor is liable for breach of contract as long as the creditor proposes that the mortgagor has an act of not performing the contractual obligation.Therefore,the premise that the mortgagor is liable for breach of contract due to the failure to apply for real estate mortgage registration is to determine that the mortgage registration is the content of the real estate mortgage contract.After determining that the mortgagor has not handled the mortgage registration of the real property constitutes a breach of contract,the creditor’s rights are remedied through the continuation of the performance of the liability for breach of contract.The third chapter of this paper is based on the manifestation of the guarantor’s guarantee effect,and clarify that the mortgagor has a legal basis for the guarantee obligation.The meaning of the guarantee effect realized by the real estate value secured creditor can be reflected in the purpose of the mortgagee to establish the mortgage right,or in the expression that the mortgagor promises to pay the specific real estate value under certain conditions.The existence of an effective real estate mortgage contract means that the mortgagor has the effect of realizing the secured claim.The real estate mortgage contract claim for the purpose of establishing the mortgage is based on the meaning of the mortgage effect and the effect of the guarantee.It has two claims: the mortgagor is requested to handle the registration of the real estate mortgage and request the mortgagor to perform the guarantee obligation within the scope of the real estate value.At the same time,the commitment of the guarantee liability is that the mortgagor pays a certain property value to the creditor,and it has the nature of guarantee responsibility,and should give the mortgagor the right of defense and exemption based on the guarantee responsibility.Since the mortgagor has the right to defend and the exemption is based on the burden of guarantee,it does not affect the creditor’s request forthe mortgagor to register the real estate mortgage.The combination of the two ways of realizing rights can help creditor rights more comprehensively and conveniently.