Research On Priority Scope Of Compensation With Respect To The Mortgagee Of Real Estate

In 2019,the Shanghai Higher People’s Court issued reference cases,among which Ping An Bank’s enforcement objection suits.The focus of the dispute in this case is: in the legal relationship of the mortgage of real estate under general mortgage,when the mortgagee of real estate cannot register the guarantee scope outside the agreed main creditor’s right due to the design of the registration application form,the priority scope of compensation is based on the scope of the guarantee stipulated in mortgage contract shall be subject to the main creditor’s rights registered in the mortgage.The first instance is subject to the agreement in the mortgage contract;the second instance is subject to registration.The Minutes of the Nine Peoples also provided special trial opinions and guidance on this issue.How to determine the priority scope of compensation for the mortgagee of real estate has been controversial in theory and trial.The party advocating registration as the criterion believes that the public trust of property rights needs to be respected,as long as the main creditor’s right is registered,the guarantee scope stipulated in the mortgage contract can be paid first.Through the analysis of the Ping An Bank case,it is known that adopting different distribution methods will directly lead to the difference of the mortgagee’s compensation benefits,and the inconsistency between relevant regulations and actual registration operations is one of the reasons of the dilemma.At the same time,similarities and differences by the judges are the reasons for the two types of judgments.Effective,but the judges who support the agreement in the mortgage contract believe that Article 389 of the Civil Code(Article 173 of the Property Law)stipulates the specific content of the guarantee scope.It is not asked whether it is registered or not.Whether Article 389 is the meaning of the scope and whether registration is necessary has always been controversial in academic circles.Behind the dispute over the priority scope of compensation for the mortgagee of real estate is the confrontation between principle and trust.Mortgage registration is principle,and the agreement of the mortgage contract is the exception to achieve a balance between the two and resolve disputes.In addition,the real estate registration department should reform and improve the registration system and registration form to make the two feasible and feasible.At the same time,it should improve the accountability system and require staff to prompt and explain the registration of the guarantee scope.