Law applicable to mortgage problems
law applicable to mortgage problems
Mortgage is in accordance with the People's Republic of China Law of guarantee provided by means of mortgage, to the borrower or a third person's property as collateral on loans, secured loan is one way. In practice in the, according to loan General and the commercial banks method of provides, loan people issued loan Shi, can issued credit loan or guarantees loan, but credit loan while borrowing people more difficult made, to after loan people review, and assessment, confirmed borrowing funding letter good, does can reimbursement loan of, only can get; on the, loan people bear of risk larger, once borrowing people in loan due cannot debt coupon, Bank of loan will faced received not back of risk, serious effect loan of security. Therefore, the lender makes a loan, secured loan is provided for principles. Mortgages, known as "King of the security" in the world, secured loans are loans risk reduction, effective legal means to ensure that loan back in time. Although the existing guarantees on mortgage-related provisions of the law, but there are still some problems to be solved in practice, article in mortgages, banks, how to preserve one's own claims, securing the loans analysis with a tube.
, mortgage problems of
(a) the relevant provisions confirm the registration of the mortgage sector is not unified, Bank at a loss
such as the people's Bank of China and the Ministry of construction jointly issued the Declaration on strengthening and bank loans related to real estate mortgage and assess management set out in the notice, Local property management for real estate registration departments of the city. A provincial administration for industry and Commerce issued jointly with the people's Bank of China, a branch of the collateral on loans of financial institutions in the registered notice stipulates that administration of industry and Commerce for business personal property and factories and other buildings make the mortgage registration authority.
in addition, because there is no mortgage registration system establishing the necessary communication between departments, resulting in repeated registration of the debtor, obtains loans funds, occurrence of damage the interests of creditors, bringing some unnecessary confusion and disputes. As a debtor to no ground set with real of land right to loan people methyl Bank for mortgage, and in land management sector handle registration; thereafter this debtor in same tablets land Shang building property, stay handle legal of property card Hou, and with property to loan people b Bank for mortgage, in property sector handle mortgage registration, this on occurred has debtor repeat mortgage, creditors right occurred conflict of problem. This is due to the registration authority belong to different administrative bodies, lack of contact with each other and cause undesirable results.
(b) registers for some collateral for loans not registered business start-up
the guarantee Act, forest mortgage, registration departments above the county level forestry authorities; mortgage with aircraft, ships, vehicles, transport and management departments registration. In practice, the party despite repeated contact with the Forestry Bureau, vehicle management authorities and other, but some departments have not agreed to carry out the registration business, Bank mortgage cannot be registered.
(c) difficulty in some collateral mortgage registered
mainly in: one is some corporate assets due to various historical reasons, without going through the registration formalities, no title, not for registration; second, collateral valuation is difficult, seek specialized rating agencies, high cost mortgages one is overburdened, registrations are not enthusiastic about.
(d) the realization of mortgage more difficult
the guarantee Act, has not been repaid a debt maturity of a mortgagee, mortgage agreement with the mortgage or have to auction or sale of the mortgaged property from the priority of claim, agreement was reached, the mortgagee may initiate litigation to the people's Court. In practice in the, while due to many mortgage real no unified of valuation standard, about sector on mortgage real valuation partial high, led borrowing to real debt Hou Bank suffered major loss; on the, due to currently market mechanism not sound, missing specification of auction, and sold market, even has auction market, also for grass-roots market not sound, auction mortgage real difficulty big, Bank to timely achieved disposal right.
to solve these problems, I think that should also be improved in several aspects. First, formulate supporting laws and regulations as soon as possible. The guarantee Act providing a legal basis for security, but it is not exhaustive, it implemented requires corresponding regulations, in order to operate in practice. The credit Act should be developed as soon as possible, of the guarantee law of the people's Bank of China should be in accordance with the General principles and the spirit of relevant specific lending regulations. Second, should established sound necessary of mortgage registration institutions, elimination mortgage sector not unified of status, or at least should in the registration sector Zhijian established corresponding of communication system, developed corresponding of approach, and system, gradually specification mortgage registration, makes handle registration rules, and unimpeded, only such, to full, and timely to master mortgage real registration of situation, blocked vulnerability, prevent debtor repeat mortgage, maintenance creditors of lawful rights and interests of. Third, the establishment of standardized market system, sound mortgage market, mortgage by liquidating the lender claims to be realized so as to protect the security of the loan.
II, on the same property is set on a number of mortgage right effect and the overall effectiveness of the mortgage
are often there is a mortgage of the property to two or more creditors. This class mortgage usually performance for two species way, a is mortgage people using same standard of real respectively to its all value for two times or two times above mortgage of behavior, this for repeat mortgage; another a is for mortgage people using a a items should not be segmentation property set number a mortgage relationship, and the mortgage relationship not overlap, by guarantees of claims amount total up not over the items property of total value, this for composite mortgage. 2nd article 35th of the guarantee law provides that: "the property after the mortgage secured by the value of the property is greater than the balance of claims, may be mortgaged again, but not in excess of the balance", this provision confirms the effectiveness of complex mortgage. But repeated mortgage mortgage, should be prohibited by law, and repeat if the debtor in respect of the same property is mortgaged, how creditors should achieve their rights? In accordance with the relevant provisions of the law, the same property to two or more creditors, mortgage, auction or sale proceeds on a first registered after registration is superior to, registrations better principles of registration of claim, if the same time same or contract registration time, according to the proportions of the claims of compensation. In practice, banks if it is to avoid repeated mortgage unnecessary risk to loan principal, even the law of mortgage registration does not require a mortgage contract, still has to go to a local notary registration of mortgages, after registration, against other creditors of the same thing, in the realization of mortgage right and order first, before other creditors have been paid off.
Bank lending, mortgage contract obligations mortgaged all of its assets. In this regard, the law of the Supreme People's Court on March 26, 1999, the complex  2nd judicial interpretation stipulates: "when there is more than one creditor by the debtor, and to mortgage its property to one of the creditors, and thus lost the ability to perform its other obligations, damages the legitimate interests of other creditors, in accordance with the People's Republic of China general principles of civil law provisions of 4th, 5th, the mortgage agreement should be found invalid. "Therefore, when enterprises have multiple creditors, could not be mortgaged all its assets to the Bank, credit departments should take note of this fact in order to avoid the adverse mortgage contract to the Bank. Because once the mortgage contract is held to be invalid, the Bank does not have mortgages, when the debtor does not repay the loan principal and interest due, banks cannot discount, auction or sale of the property, to realize their own claims.
third, the mortgagor fails, lender should preserve their rights
mortgagor bankruptcy proceedings, especially when the mortgagor is the debtor himself, then the lender shall, as creditors notice of the Court within the time limit to submit claims, fails to declare, as a waiver claim, bankruptcy the debtor is not responsible for this debt repayment obligations, therefore, Lenders must exercise the right to declare in a reporting period, or will all be losing the loan. To the debtor, has mortgaged property is not part of the insolvency estate, the mortgagee has the right to exemption, discounts to mortgage property or collateral auctions, selling price set by the preemptive right, thereby before other creditors loan principal and interest. To sum up, after lenders issued mortgages, pay attention to loan operations, in special cases, applied the relevant statutory provisions to protect their claims or the realization of mortgage right and ensure safety of loans to ensure the stable operation of commercial banks.