Analysis Of The Civil Liability Of The Hypothecator When The Hypothecation Certificate Without Registration

With the development of the economy,the demand for security for financing in the commercial and industrial sectors is increasing,and real estate is the preferred subject matter for the creation of mortgages due to its high value and high retention rate,as well as the fact that it is not easily transferable or easily concealed.However,in the actual market and judicial practice,there are few cases where the mortgage contract is not registered and the Civil Code does not clearly stipulate the nature of the mortgagee’s liability in case of non-registration of the mortgage,which leads to very different results in similar cases.The first part of this article is the presentation of the problem.Through the analysis of the guiding case No.168,it was found that there are four different situations in practice,namely,no liability,liability for contractual negligence,liability for breach of contract,and liability for guarantee,in respect of the civil liability of the mortgagor for failure to register the mortgage.The nature of the mortgagee’s liability needs to be further defined and analysed.The specific rules governing the liability of mortgagees under different types of liability also need to be further clarified.The second part of this article is an analysis of the liability of the mortgagee.This article argues that,firstly,the idea that the mortgagee is not liable for the guarantee is no longer applicable due to the lack of a realistic legal basis.Secondly,although the validity of the mortgage contract is not affected by registration,the mortgage contract as a debt contract is affected by the provisions on contractual validity,and the mortgage contract as a security contract has a subordinate nature and is also affected by the main contract.The mortgagee may be liable for contractual negligence in the context of contractual invalidity.Thirdly,in the context of the distinction between causative and consequential acts of change of property rights,a mortgage contract becomes effective upon its formation.Even if the parties did not agree on the registration at the time of the conclusion of the contract,this is an implied obligation of the contract.The mortgagee is therefore liable for breach of contract.Fourthly,the mortgagee is not liable for the security.Firstly,the mortgage contract is not an atypical security contract,and there is only an agreement between the parties to create a mortgage and not an agreement in rem at the time of the mortgage contract,so the mortgagee is not liable for atypical security.Secondly,it was not possible to convert the mortgagee’s liability to joint and several liability based on the theory of conversion of invalid legal acts.The failure to register the mortgage contract is not an invalid underlying legal act,and requiring the mortgagee to assume joint and several guarantee liability is a breakthrough of the parties’ inner truth,which is not in line with the requirements of private law autonomy.The third part of this article is the definition of the specific rules on the liability of the mortgagee for contractual negligence and breach of contract.Firstly,the mortgagee is liable for contractual negligence only under certain circumstances and when there is fault,and the scope of its liability includes inherent and expected interests,i.e.the mortgagee is liable for the part of the debtor’s insolvency within the value of the collateral.Secondly,if the mortgagor assumes liability for breach of contract,the creditor is entitled to demand that the mortgagor assume liability for damages or continue to perform,and the creditor may choose according to its own interests;if the creditor demands that the mortgagor assume liability for damages,the mortgagor assumes joint and several liability for the unpaid portion of the debt.