The Research On The Rules Of Estate Mortgage

It’s all known that Article 397 of the Civil Code is our system of intended mortgages on premises.This norm is a mandatory regulatory norm,which cannot be excluded by the parties.In this article,comparing the legislation of other jurisdictions and the established doctrinal views in China,we advocate that the legal structure of the mortgage of premises in China is an intentional mortgage formed on the premises in one piece.The mortgage is established and effective upon the successful registration of the mortgage on any one of the premises.This structure can be extended to mortgages on buildings under construction,separate mortgages,etc.Apart from the "Introduction" and "Conclusion",this article is divided into four main parts as follows.The first chapter starts from the normative intent of Article 397 of the Civil Code,deciphers the controversy between the general and minority views on the legal nature of this article,and clarifies the rights of the intended mortgage rule for premises.Specifically,the two sections of this chapter discuss the two paragraphs of Article 397 separately.It is concluded that both provisions are regulatory and peremptory norms,denying the reasonableness of the minority view.At the same time,the legal structures designed for the mortgage of premises,namely "legal mortgage" and "joint mortgage",are problematic and need to be amended.In the second chapter,on the basis of the first chapter,the legal structure of legal mortgage and joint mortgage is rejected,and the real meaning of mortgage of premises and land in China is proposed.In terms of the establishment of rights,exercise of rights,subordination of mortgage and interest relationship,the mortgage of China’s premises does not belong to the "joint mortgage" in foreign jurisdictions and China’s law,but is an independent structure of rights.At the same time,the mortgage of premises in China also differs greatly from the legal security right stipulated in Article 807 of the Civil Code in terms of system design and content of rights.In order to avoid confusion,it should not be recognized as a legal mortgage.Finally,we should draw reference from the German legislation model,and determine from both the doctrine and the practice that the mortgage of our real estate is essentially a single mortgage on land.The object of this single mortgage,i.e.,the "real estate as a whole",is judged solely by the planning permission issued by the competent authority and the separate real estate unit designated by the real estate registration department for the real estate.The "scope of occupation" mentioned in Article 397 shall be replaced by the "planning scope".Chapter 3 expands the application of the legal construction of the intended mortgage to mortgages of buildings under construction.On the one hand,it can prove the reasonableness and applicability of this rule,and on the other hand,it can provide a feasible idea to solve the controversial problem of mortgage of buildings under construction in reality.Under the background of mortgage disposal of real estate,as long as there is a part of the building under construction that can be set up for mortgage disposal,the mortgage can be registered.As for the determination of the scope of mortgage effect,it should be limited to the scope that can be specified in the premises.If the building under construction can be independently registered and disposed of in the process of construction,the part under construction shall not be included in the scope of mortgage;on the contrary,the part under construction shall become the object of mortgage on the building under construction regardless of the extent of the part under construction.And at the time of completion,the mortgage registration of the building under construction is transformed into the mortgage registration of the general building.Chapter 4 discusses the problem of separate mortgage that exists in reality.The separate mortgage should be included in the unified system of intentional mortgage of premises.In reality,there are two types of separate mortgages on premises: one is to use separate mortgages as an appearance to hide the true meaning of joint mortgages when it is impossible to create a normal joint mortgage.The other category is that the provisions of Article 397 can be excluded by agreement of the parties and the separate mortgage can be contracted.In the former case,Article 146 of the Civil Code shall be applied,and the meaning of the separate mortgage shall be deemed invalid,while the true meaning of the joint mortgage shall be judged on a case-by-case basis according to the different circumstances of the mortgage object.In the latter case,Article 397 will be applied compulsorily and will have the effect of creating a joint mortgage directly between the parties.In the latter case,Article 397 will be applied compulsorily and create the effect of joint mortgage between the parties.