Analysis Of Mortgage Disputes Between China Post Branch,Zhongnan Company And Hongling Company

Article 179,paragraph 2,of《the property law of the People’s Republic of China 》(now article 394 of the civil code of《the People’s Republic of China》)However,in the practice of judicial work in our country,both the real estate registration authority and the market economic system have put forward many requirements for the subject of mortgage registration,and then there is the inconsistency between the creditor and the mortgagee,It leads to the ambiguity of the identification of the subject who really enjoys the mortgage in practice.This state of "separation of debt repayment" caused by objective reasons does not violate the principle of legal property right and the principle of subordination of mortgage.In judicial practice,due to the need of financing,the construction subject of resettlement housing mortgage the resettlement housing to a third person,which leads to the conflict between resettlement right and mortgage.Laws,regulations and judicial interpretations have not made clear provisions on how to solve the conflict between the resettlement right and the mortgage right after the mortgage right is set up.In view of the application difficulties brought by the "separation of debt repayment" and the priority conflict to our judicial work,it has become a key problem to find a reasonable way to prevent and improve.This paper takes the(2018)Supreme People’s court civil judgment No.112 as an example,through combing the "separation of debt" in the process of demolition and resettlement,makes it clear that the "separation of debt" conforms to the principle of legal property right,and does not break through the principle of mortgage subordination,so as to clarify the ownership of mortgage and solve the priority of right exercise when the mortgage conflicts with the compensation right of demolition and resettlement.The promulgation of the civil code of the People’s Republic of China and a series of judicial interpretations has clearly defined the actual right holder of mortgage in the "separation of mortgage",but there is a slight lack of systematicness,and there are no provisions on the principles of handling the conflict between the right of compensation for demolition and resettlement and mortgage.On the basis of the existing regulations,this paper tentatively proposes to clarify the "mortgage" with the help of the principal-agent system In order to further standardize the system of resettlement compensation right,we should establish and improve the "notice registration" system of resettlement compensation right.