Research On Priority Right Of Mortgage Advance Notice Registration Of The Pre-purchase Of Commercial Housing

With the development of the real estate market and the high prices of houses,the purchase of pre-purchased commercial housing through bank loans has become a major option for home buyers to achieve their home purchase and investment purposes.However,in this transaction,in view of the fact that pre-purchased commercial housing does not yet have the conditions for the registration of the mortgage book,the bank that provides the loan usually requires the buyer to mortgage advance notice registration of the commercial house purchased by it,and requires the real estate developer to assume the stage guarantee responsibility.The conversion of the mortgage advance notice registration into this registration requires a long period and complicated procedures.The bank as the registration right holder cannot control the process.Therefore,if a buyer’s breach of contract occurs in this process,can the bank be based on the mortgage advance notice registration is a matter of great concern to exercise the priority right of compensation for the target commodity house.The full text is divided into four chapters in addition to the introduction.The introduction includes the topic selection and the research method to be adopted.It points out the particularity of the pre-purchased commercial housing transaction,the special value in practice,and the current theoretical and practical circles’ mortgage advance notice registration.Whether the mortgage advance notice registration has the effect of priority compensation is still controversial;Chapter 1 is the study of the system’s norms and explanatory theory.The advance notice registration system in China is accompanied by the special practical background of advance purchase of commercial housing transactions.From the perspective of effectiveness,the advance notice registration system has both The creditor’s right and the property right and it can be found by comparing the foreign experience that China refers to when setting up the advance notice registration system.The civil law system,operating mechanism,system function and practical background are different from China’s,so we completely deny the priority of mortgage advance notice registration by referring to foreign experience has no legitimacy.The second chapter aims to use cases to sort out the more representative judicial judgments.On the one hand,it is clear that the current judicial practice is still controversial around the topic of this article.On the other hand,through the analysis of the typical judgments,the advantages and disadvantages of different judgements to this problem are clarified.The advantages and disadvantages of different treatment methods of this issue indicate that the court should pay attention to the true expression of the parties to the guarantee contract,the social effect of the judgment,the efficiency value of the litigation,and the timely recognition of the priority right to compensation of the registered right holder and should pay attention to the various systems established by the Property Law.The mortgage of advance notice registration should not be confused with the mortgage registration,the mortgage of the construction in progress;Chapter III is the rationality and feasibility analysis of the priority of the effectiveness of compensation.Among them,the rationality analysis mainly focuses on practical needs and procedural law.Value orientation,the system value of advance notice registration,and the economic rationality of the system clarify the positive effect of recognition of the priority compensation effect.The feasibility analysis intends to refute the current view of denying the priority compensation effect,pointing out the conditional recognition of the priority of the right holder Rights will not violate the statutory principles of property rights,nor will it cause The legal system is chaotic.At the same time,the chapter points out that it is not appropriate to give priority to the right holder through the judicial document to confirm the change of property rights.Instead,it should start with the legal principle that the right infringement should be remedy;The fourth chapter points out the limitation of the effect of recognition of priority compensation including 1.The registration of the mortgage have not been completed;2.It is not because of the obligee that the preposition procedure is not completed;3.Except for the lack of registered appearance,the other substantive conditions for the realization of the mortgage rights have been met.After all,the registration of mortgage advance notice registration rights is different from the registration of mortgage rights.The law does not expressly establish its priority effect of compensation.Therefore,the recognition of this effect should be treated with caution.Only the value of civil and commercial law,efficiency,etc.,give the vormerkung right holder the priority to be compensated.