Study On The Effectiveness Of Pre-sale Mortgage Registration Of Commercial Housing

The pre-sale mortgage registration system of commercial housing(hereinafter referred to as "the pre-sale mortgage registration" for the convenience of later writing)belongs to the same legal system as China’s pre-sale commercial housing system,which plays a vital role in reducing the risks faced by banks in personal housing loans and making up for the money gap of buyers.However,even though the registration method of advance mortgage registration for pre-sale commercial housing has been accepted by most people and widely used in the real estate market,China’s Civil Code of the People’s Republic of China(hereinafter referred to as "Civil Code")only stipulates the principle clauses,and does not specify the validity of the right of advance mortgage registration for pre-sale commercial housing(hereinafter referred to as "advance mortgage" for convenience of later writing)when it conflicts with different rights,or even has no statutory definition for its concept.In view of this,academic circles have been arguing about whether the pre-mortgage right in China has the priority of compensation,which leads to different judicial decisions in practice.There are roughly the following differences in the thinking of judicial adjudication in practice: The first thinking holds that the object of pre-mortgage registration is not the real right,but the exclusive right of claim,and the pre-mortgagee cannot enjoy the priority of compensation;The second way of thinking is that the pre-mortgage is equal to the formal mortgage,which is a right with the nature of real right,and has the priority of being paid;The third way of thinking is that when the situation that the pre-mortgage cannot be converted into the formal mortgage is not attributed to the pre-mortgagee,the pre-mortgagee enjoys the priority of compensation.Although the latest Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Guarantee System Interpretation")makes relevant response to the situation that the pre-mortgaged property without formal mortgage registration can be paid in priority for the proceeds from disposal,which further extends the effective space of the pre-mortgage,breaks through the traditional view that the pre-mortgage does not have the priority to be paid,and timely provides direction guidance for judicial adjudication,so that the theoretical and practical circles can have a certain effect on the advance registration of mortgage.However,according to the provisions of this article,if the house is not registered for the first time,the pre-mortgagee cannot exercise the priority of compensation.However,in practice,there are still cases where the first registration of houses cannot be done,and the consequences of this registration failure are not caused by the pre-mortgagee,thus prolonging the period of unprotected bank creditor’s rights.Therefore,the author believes that it is still necessary to study the legal effect of advance mortgage registration.Based on the perspective of judicial practice,the purpose of setting up the advance notice registration system is to make the advance notice registration have the effect of real right,so that the obligee who has handled the advance notice registration can get the priority(exclude)from the right of others to buy real estate,and at the same time,the obligee who has handled the advance notice registration of mortgage can exclude the right of others to dispose of real estate,so as to give priority to the compensation of real estate.Only by affirming the above rights of the obligee of advance notice registration and the obligee of advance notice registration of mortgage right,rather than denying the priority effect of the bank’s advance mortgage right,can the advance notice registration play its due role,and it will not become a dead letter.This paper holds that before the buyer obtains the house ownership certificate,if there are obstacles to the conversion of advance mortgage registration to formal registration(such as the adjustment of national policies,the break of developers’ funds,etc.),which leads to the failure of the first registration of pre-sold houses,and the conversion of pre-mortgage to formal mortgage cannot be realized with certainty,the bank can be exceptionally admitted to have the priority of compensation.After the buyer has obtained the house ownership certificate,if the purpose of converting the pre-mortgage right to the formal mortgage right can’t be realized due to the buyer’s laziness in assisting the bank to register the formal mortgage of the house,the bank should be given the right of priority in compensation for the disposal price of the commercial house.When there is a conflict between the pre-mortgage right and the judicial enforcement measures,such as the house being sealed or pre-sealed by other creditors,the pre-mortgagee can lift the restriction on property rights by filing an enforcement objection with the enforcement court when the conditions for the formal registration and transformation of the mortgage right are met,and then he has the right to apply for formal mortgage,which has priority over other ordinary creditors in getting compensation for the price of house discount or auction or sale.