| The advance notice registration system for mortgage of pre-sold commercial housing originates from the mortgage of pre-completed flats in Hong Kong.As an atypical form of guarantee,it plays an important role in the real estate field.In the case of pre-sale of houses,because the houses have not yet been completed,the first registration of the ownership of the houses and the formal registration of the mortgage rights cannot be carried out.Therefore,the pre-mortgagee and the buyer usually go through the pre-registration of the mortgage rights first.The first time China stipulated the advance notice registration system in the form of law was in 2007.Article 20 of China’s Property Law stipulated the advance notice registration system in principle.It can be seen that the research on the advance notice registration system in our country not only started relatively late,but also has insufficient operability,and the regulations on nature and effectiveness need to be improved urgently.In practice,the effectiveness of mortgage advance notice registration is controversial,especially in the absence of formal registration of mortgage,whether the pre-mortgagee can obtain priority compensation according to mortgage advance notice registration is often subject to the problem of "same case but different judgment",which damages the judicial authority.In view of this,when studying the effectiveness of advance notice registration,this article examines the provisions of extraterritorial laws,analyzes judicial cases and studies the relevant legislative provisions of our country.Starting from the nature,effectiveness and conflicts in application of advance notice registration in housing mortgages,this article discusses in detail the effectiveness of advance notice registration of mortgage right under the condition of advance sale of houses.This article is basically divided into four chapters:The first chapter,the introduction,includes the questions raised,relevant literature reviews,research methods,innovations and deficiencies.The second chapter is the research on the reality of advance notice registration in housing mortgages.This part studies the real situation of mortgage right of pre-sold commercial housing from two aspects of legislation and judicial practice.Combing the relevant laws and regulations,studying the case data,and discussing the deficiencies of legislative provisions and judicial practice and the areas to be improved.The third chapter is the theoretical analysis of the legal effect of mortgage advance notice registration.This part will draw lessons from foreign laws and regulations,and focus on the nature,legal effect and conflict of effect in the application process of advance notice registration in housing mortgages,especially on the dispute over whether advance notice registration of mortgage right of advance commercial housing should have priority in compensation.The fourth chapter puts forward suggestions to perfect the effectiveness system of mortgage advance notice registration.On the basis of the above research,this part will propose from the legislative aspect that the nature and effect of the advance notice registration of the mortgage right in our country should be clarified,the legal status of the advance notice registration of the mortgage right should be clarified,and the procedure of transforming the advance notice registration of the mortgage right into the registration of the establishment of the mortgage right should be improved.In order to safeguard the interests of the mortgagee and the pre-purchaser,this paper also puts forward some suggestions,hoping that the research in this paper will be of some help to perfect the theory of the pre-sale commercial housing mortgage pre-notice registration system in our country and provide some ideas to solve the practical confusion. |
