A Study On The Legal Effect Of Advance Notice Registration Of Real Estate Mortgage ——Take Pre-purchased Commercial Housing As An Example

Advance notice registration of pre-purchased commodity housing mortgage rights,as an important way for banks to protect their claims,can reduce the risk of financial lending.Advance notice registration system is relatively clear in the legal systems of Germany and Japan.Although it is provided in the legal system of our country,it does not clarify its expression form and specific effect.In this article,I try to refer to the online signing and filing system of pre-purchased commercial house sales contracts,and register the advance notice for online signing.In terms of effectiveness,combining the jurisprudence in judicial practice with the theory.The effectiveness of advance notice registration of pre-purchased commercial property mortgage right is divided into four parts,namely: ranking effectiveness,right preservation effectiveness,and bankruptcy protection effectiveness.As for the most controversial priority in academia and thesis-compensation effect i,-does not have a direct priority compensation effect.It only has an indirect priority compensation effect under certain conditions.Due to China’s strict administrative management policy for the pre-purchased commercial housing,coupled with the advance notice registration restrictions on the obligor’s punishment,the pre-purchased commercial housing has become a restricted circulation to some extent.Therefore,the order effect of advance notice registration of mortgage rights cannot be reflected in the private rights field of the advance purchase of commercial housing in China,and its value is mainly reflected when facing the compulsory measures from public authorities.For the preservation effect of the mortgage advance registration right,it is mainly about the understanding of Article 20 of the Property Right Law.This is not only in line with legal principles,but also leaves room for the preservation effect of advance registration of mortgage rights in the field of the pre-purchased commercial housing.In addition,combining with China’s special pre-purchased commercial housing system,theright preservation effect should also be expanded accordingly,that is,the object is expanded from pre-purchased commercial housing to existing housing,and the main body is expanded from home buyers to real estate development enterprises.Regarding the viewpoint of whether the mortgage registered in advance has the priority to be compensated,although there are cases in the Communist Party of the Supreme People’s Court,there are still many disputes in theory and practice.The author believes that the mortgage right registered in advance does not have a direct priority compensation effect,and only in the case that it can be successfully transformed into the mortgage registration,it has the indirect priority compensation effect due to the priority compensation of the mortgage right.In bankruptcy proceedings,the effectiveness of the bankruptcy protection of the advance-notice registration of the pre-purchase commodity housing mortgage needs to be different from that of the advance-notice registration of the pre-purchase commodity housing.The effectiveness of the bankruptcy protection of the advance notice registration of the pre-purchased commercial property mortgage rights is mainly reflected in its effectiveness of depositing the amount to be allocated.If it can be smoothly transformed into formal mortgage registration,the creditor shall have the same priority as the mortgage in respect of the amount to be distributed.If it cannot,the distribution amount should be classified as an ordinary creditor’s right,which is inferior to other priority rights.