Reserch On The Effectiveness Of Pre-registration Of Mortgage In The Field Of Pre-sale Market Of Commodity House

With the prosperity of the pre-sale housing market,the demand of house buyers to obtain loan funds from banks has also increased greatly.In order to protect banks’ rights and interests,the pre-registration of mortgage system emerges at the right moment.The mode of pre-sale houses comes from Anglo-American law system,while the pre-registration system is originated from continental law system.Our country combines the two with the actual situation,which solves the capital problem of house buyers and developers to a certain extent.However,due to the unclear legal provisions of this system,there are disputes both in theoretical and in practice such as effectiveness,which greatly hinder the exertion of its system value.This article will discuss the nature of advance pre-registration of mortgage right in pre-sale commercial housing through comparative research method and empirical research method,problems such as effectiveness and disputes in practice are expected to solve the judicial practice problems encountered in advance pre-registration of mortgage to some extent.The content of the article is mainly divided into the following parts:The first part of the article mainly discusses the meaning and value function of the pre-registration system of mortgage.Through tracing back to the pre-registration system of mortgage,it can be seen that the pre-registration of mortgage is a type of pre-registration,The pre-registration system came into being in order to balance the interests among developers,house buyers and banks under the mode of pre-sale of commercial housing,it plays the value function of protecting the interests of house buyers(banks)by limiting the disposition of real rights and its own publicity.The second part of the article mainly studies the pre-registration system of Anglo-American legal system and continental legal system through comparative research method,it is found that the mortgage system after adding registration procedures in Anglo-American legal system is relatively similar to the pre-registration system of mortgage right in our country,while the pre-registration system of continental legal system and the pre-registration system in our country are in the scope of application,the object of rights,the rules of change and cancellation methods and effectiveness are different.The third part discusses the legal nature of the pre-registration of mortgage right in the context and law of our country through the analysis of the legal provisions and theories of the pre-registration system of mortgage right in our country on the basis of the above comparative law research,it comes to the conclusion that the pre-registration of mortgage right is essentially a creditor’s right,and at the same time,its nature is further clarified through its comparison with this mortgage registration and the mortgage registration of buildings under construction.The fourth part discusses the effect of confrontation with court enforcement and priority compensation reflected in judicial practice through the analysis of the preservation effect and sequence effect of pre-registration of mortgage.This paper believes that different types of enforcement measures should be distinguished to determine whether the pre-registration of mortgage can fight against the enforcement of the court.In addition,the court should give banks the legal status of prior compensation,the basis does not lie in confirming that the pre-registration of mortgage has the same legal status as the mortgage,but in the publicity of the pre-registration system of mortgage itself and the validity of the court judgment on confirming real rights.The last part of this article mainly discusses the problems existing in the judicial practice of pre-registration of mortgage and suggestions for improvement.There are some problems in the pre-registration system of mortgage that some rules do not have universality,whether banks enjoy the priority of compensation has disputes,and the application rules of the periodic joint liability rules of developers are not uniform,pay full attention to the publicity power of the pre-registration system of the mortgage right.This article think we can replace the administrative registration with the judgment document to confirm the establishment of the mortgage right,use the system explanation to judge the pre-registration dispute of the mortgage right,and give suggestions on this issue.