Research On Legal Issues Of Mortgage Of Construction In Progress

The project under construction is not a complete material form in terms of its initial attributes,but it is a tangible object that can be used as collateral for loans.With the continuous development and progress of social economy,the projects under construction not only have great exchange value,but also have a very important possibility of realization,which are generally used for capital guarantee as collateral and widely used in engineering construction.On the other hand,because the construction in progress cannot be regarded as an independent transaction object,in order to realize the principle of making the best use of everything in civil law,many problems have arisen about the mortgage of the construction in progress.For example,the object scope of mortgage right of construction in progress,the nature of mortgage registration and publicity of construction in progress,the effectiveness of mortgage right of construction in progress,and the insufficient system of realizing the right,etc.By comparing other countries’ theories and legislative examples of mortgage system for construction in progress,this paper sorts out the theoretical disputes and institutional problems involved in the process of establishment,registration,effectiveness and realization of a series of rights.First,it is not mature to consider the object scope when establishing mortgage right for construction in progress,and the unfinished part,a "future thing",has not been recognized as the object of mortgage,but it should be included in the mortgage as far as the purpose of mortgage establishment and the relationship between complete buildings and land are concerned Secondly,the nature of registration involved in the process of mortgage registration of construction-in-progress has been controversial.Therefore,based on the nature of mortgage right of construction-in-progress and the scope of mortgage object mentioned above,it is considered that the nature of mortgage registration of construction-in-progress is more appropriate to register in advance.In addition,in the research on the effectiveness of mortgage right of construction in progress,the priority of compensation right of construction contractor is emphatically discussed.By comparing the provisions of other countries in the world,it is considered that the priority enjoyed by the contractor of construction in progress should be the legal mortgage.Finally,the realization of mortgage right of construction-in-progress in China can break through the existing way,relax the restrictions on the transfer of real right of construction-in-progress in the field of mortgage of construction-in-progress based on the nature of previous advance notice registration,and refer to the subrogation law of materials in Japan,Korea and other countries to ensure the realization of rights under various circumstances.