| Pre-purchased commodity housing mortgage notice registration means that the buyer buys a house loan from the bank,mortgages the pre-purchased house to the loan bank,and goes to the relevant institution to register the pre-mortgage with the loan bank.The purpose is to ensure that the future time is guaranteed.Registration and establishment of mortgage rights,it is a supporting system that comes along with the pre-sale system of commercial housing in China.It is not enough to make up for the insufficient funds of buyers,reduce the risks faced by banks' personal housing loans,and accelerate the prosperity and stability of the real estate market.The role of substitution.However,for such a registration method that is so important and widely used in pre-purchased commercial housing transactions,China's Property Law only stipulates the principled clauses,and does not even explicitly mention whether the pre-sale commercial housing mortgage can apply for advance notice registration.In 2008,the “ Registration Procedures for Housing ” issued by the Ministry of Construction included the registration of pre-purchased commercial housing mortgages for the first time.The “Regulations on the Interim Regulations on the Registration of Real Estates” issued by the Ministry of Land and Resources in 2016(hereinafter referred to as the “Regulations”)confirmed the type of entitlement registration.However,due to the relatively simple provisions of the Property Law,the above-mentioned departmental regulations promulgated by the administrative department of real estate registration are mainly regulated from the process faced by the substantive operational layer,so that the effectiveness of the pre-mortgage registration practice and the theoretical community are quite large.Controversy.In judicial practice,when the purchaser refuses to perform the debt due,it is predicted whether the mortgage registration right holder can exercise the priority compensation right for the auction price of the pre-purchased commodity house,and the different courts have different judgments.Pre-sale commercial housing mortgage notice registration does not directly produce priority compensation.The advance notice mortgage registration is different from the mortgage registration.From the advance notice registration to the mortgage registration,it is necessary to perform certain registration procedures,so it cannot be directly equated with the legal effect that the mortgage has established.Although in terms of physical properties,the buildings under construction and the houses under construction belong to unfinished buildings,the mortgage registration of pre-sale commercial houses and the mortgage of buildings under construction belong to different registration types,both of which are mortgage entities,legislative purposes,etc.There are great differences in aspects,and the legal concepts of the two can not be confused.The pre-sale mortgage registration can not be directly applied to the provisions of Article 187 of the Property Law.Finally,the right registered in the mortgage notice registration is not a property right,and its essence is still a relative legal relationship between the two parties of the loan bank and the purchaser,but it has a certain publicity effect through the form of registration.It is a breakthrough in the theory of the equality of creditor's rights,and it cannot be recognized as a property right because of its publicity.In practice,the bank's mortgage is successfully established.The developer needs to complete the construction of the housing project and complete the initial registration of the commercial housing.At the same time,the purchaser needs to register the ownership of the commercial housing and assist in the registration of the mortgage transfer.During the period prior to the completion of the registration of the mortgage,the bank is unable to control the credit risk it may face.That is to say,whether or not the mortgage can ultimately be obtained depends entirely on the behavior of others.It is obviously unfair to completely deny the bank's preferential access to compensation.of.Based on the principles of registered publicity,fairness,honesty and trustworthiness,and the protection of no-fault real estate developers,this paper believes that in the case that the commercial housing has already been completed and accepted,and the real estate developer has already applied for the large property right certificate,the purchaser is in the process of handling the house.For reasons such as registration of ownership or failure to cooperate with the registration of mortgage rights,the bank shall be given priority in reimbursement for the price of the commodity involved in the case.After the commercial house is applied for pre-settlement or seizure by the other creditors,the pre-registration right holder may file a lawsuit to execute the objection when the pre-mortgage registration reaches the condition for registration of the mortgage.After the seal-up registration is revoked,the application may be filed.The registration of the mortgage right,and then the right to the price of the commercial housing discount or auction,sale price is preferred over other ordinary creditors.When the real estate developer goes bankrupt,the bankruptcy administrator's choice should be restricted.As long as the housing industry has been completed,the purchaser has the right to request the transfer of the ownership of the house.The pre-mortgage registration right holder can ask the administrator to assist in the formal registration of the mortgage..If the building under construction is determined to be unable to complete the construction(such as capital breaks,changes in national policies,and construction factors),the right holder's expectation of conversion to mortgage will not be realized.At this time,the bank may request the release between the agent and the obligor.The loan contract and the obligor are required to bear the compensation for breach of contract,and at the same time,the real estate agent can be required to assume the guarantee responsibility. |
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