With the deepening of China's real estate industry vigorous development and the reform of the housing system, housing mortgage has been widely used in practice. Our law has not yet on the mortgage provisions, there is great difference in theory, practice of housing mortgage related legal issues, and the mortgage disputes increasing, so the theoretical research on housing mortgage is necessary.

Mainland China's housing mortgage, refers to the purchase prices to pay part of the purchase, the purchase of housing mortgage to the bank, as the guarantee to obtain bank loans, bank loans to real people and to purchase on behalf of the payment by the seller, the seller as the purchase by the guarantor in the purchase, not repay the loan principal and interest, the bank has the right to housing or to the auction, the sale of the discount price of housing priority, or by the method of the housing buy back, and will be a kind of security repurchase shall reimburse the bank loan interest.

China's housing mortgage: according to different contents, housing mortgage can be divided into Xianfang mortgage and forward delivery housing mortgage. The so-called Xianfang mortgage refers to, people have houses built housing (including second-hand housing) housing sales contracts signed with the seller and pay 1629, the insufficient part to the bank to apply for loans, the purchase of real estate as a mortgage on the property and to submit proof of the bank as collateral for loans to purchase guarantee. Forward delivery housing mortgage refers to the delivery of commercial housing construction, housing and real estate developers (developers or distributors) signed commercial housing pre-sale contract and pay 1629, the insufficient part to the bank to apply for loans and the purchase in advance in the construction of housing mortgaged to the bank, at the same time by the director as a guarantor of purchase guarantee.

China's current personal housing mortgage loan operation flow are summarized as follows: the establishment of partnership property developers and real estate loans between banks (Xianfang mortgage without this process) -- buyers and real estate developers of commercial housing pre-sale contract signed purchase real estate business -- to pay more than 20% of the initial Fangjiekuan -- buyers who apply for loans -- Bank review the purchase to the lending bank credit and repayment ability -- the purchase of personal housing mortgage contract signed with the bank and the personal housing mortgage loan contract (some banks will be the two contracts -- the contract notarized Become) -- buyers apply for mortgage insurance formalities -- mortgage registration or pre registration of mortgage bank loans to real estate developers -- account -- real people obtain housing permits -- Re mortgage registration -- purchase servicing -- the cancellation of mortgage registration.

The repayment of mortgage loans are: 1 the matching principal repayment: is the principal monthly repayment of principal and interest, calculated according to the remaining, so early because the principal more, will pay more interest, so as to make the payments in the early days more, and in the subsequent month decreases, the benefit of this approach is, due to its large money in the early and reduce interest expenses, more suitable for the repayment ability of the family.

2 matching interest repayment: in the repayment period, the monthly repayment of the same amount of loans (including principal and interest), such as the monthly repayment amount is fixed, can effectively control the family income for each household spending, according to their income situation, determine the amount of loan.

The legal relationship of China's housing mortgage system: the subject of legal relationship of China's housing mortgage involves three parties: the mortgage, mortgage right and property developers. Each entity has several identity, the mortgage of mortgage lending relationship is the borrower, and housing sale in the purchase of mortgage; mortgage right is a lending relationship lender, is to ensure the relationship of creditor; mortgage guarantee business relationship is in the relationship between housing real people, and repurchase housing in the repo man.

The legal relationship between the housing mortgage involved usually has four to six. The first legal relationship is due to the purchase of mortgage and real estate business of the sale of housing; the second legal relationship is the mortgage purchase loans to banks for payment of the loan; third legal relationship is the mortgage housing will be purchased as about repayment of principal and interest for loans secured the mortgage relations; fourth a legal relationship is the real estate business in order to guarantee mortgage loans with the banks have guarantees; fifth legal relationship is the mortgage banks designated insurance according to the insurance company for the purchase of housing insurance and insurance related; Sixth legal relationship is if the mortgage by the people can not be about directional bank pay interest, from the property according to the original price repurchase business arising from the housing repurchase. In our practice, usually mortgage refers to the first four legal relationship, the latter two legal relationship is not necessarily involves. For example, some banks do not require mortgage insurance on the matter, it would not involve insurance relationship. Another situation is the mortgage people can in accordance with the contract, duly repay bank loan interest, also won't produce real estate developers repurchase mortgage products and relates to repurchase. The legal relations between the purchase, mortgage banks and property developers are closely linked, indivisible, together constitute the mortgage system.

Rules USA housing mortgage system in contrast is very perfect. For example, any one of the housing mortgage borrowers will be incorporated into the rating strict credit system. As the credit rating, excellent credit (above 660), Alt-A credit (620-660), secondary credit (below 620). The credit rating of commercial bank to the borrower, he risk pricing (i.e., interest rates) are not the same. According to the different risk levels, the market will be the secondary mortgage loan is divided into different categories, the formation of A, B, C, D four. Among them a kind of minimum risk, and so on. At present USA $10.9 (GDP82% above) mortgage loans, subprime mortgage loans $1.4 (for the entire mortgage loans in 14%), the minimum risk accounted for 75%, the highest risk accounted for 25% ($350000000000). But the different risk categories have different risk premium level, the secondary housing mortgage loan interest rates of C and D was higher than the quality of housing mortgage loan interest rate 4%. Visible, tools and means America housing finance market is not only a large scale, sound legal system, strict system, to avoid the risk of many on the market, government implicit guarantee diversity and strict supervision, and market access standards, strict and detailed financial multi subject, but in this case, USA mortgage system, there will be a severe financial crisis.

With the above facts and experience to take care of China housing mortgage market and mortgage system, we will find that, home mortgage system and mortgage system on the surface is learning foreign things, but only its shape without learning the god. First of all, from the point of view of China mortgage loan market access system, not only very loose, and the core spirit of opposite mortgage loans. Have a look the domestic market of housing mortgage loans in a few years ago, no matter who buy housing no loans of less than. This is not only reflected in the mortgage market access standards low (CBRC regulations on mortgage loan repayment of personal disposable income proportion can reach 50%, the international standard in the 28%-35%), and enter the credit degree is low, for example to prove the real income levels, as long as proof that a unit of wages can be (and international to four cards, such as personal income, bank statements, personal income tax, personal credit records and payroll etc.). This proof of income units could be opened, can also come out by law firm.

Because the domestic housing mortgage credit access and no difference, therefore it cannot reflect the risk of commercial banks. We can see, the personal housing mortgage loan credit as long as a proof of salary, and the salary that is the unit issued, may also lawyer firm. Because of this that credit rating is no different, so, the domestic into housing mortgage loans, as long as they enter the market and its price is the same, not because of the price risk of personal credit is different (the last 359 document on the second set of housing industry will have certain difference, but still very little). Because no differences of personal credit rating, this reduces the commercial bank examination of personal credit rating, not up to the standard of credit is easy to enter the market; on the other hand, easy to weaken the personal housing mortgage of credit risk control, strengthening their high risk behaviors. Can say, China investment in the real estate market speculation and personal mortgage loan credit risk rating no differences have great relations. If commercial banks to price risk for different credit ratings of the individual, it may bring some risk preference and credit weak lenders out of the market.

Because of the market access of personal mortgage, lax lending standards because of their access to credit rating of no difference, plus domestic state-owned commercial banks dominate, so that the internalization of personal housing mortgage loans of banks is very serious. This internalization refers to bank employee obtain bank funds to enter the real estate market. Domestic commercial banks to purchase of housing is the current real estate market is an important part of personal housing mortgage loans. Even in some commercial banks file mode allows the bank employee personal housing mortgage loans for banks to lend and make another way (such as equity). The rent-seeking behavior in this industry is not only a serious erosion of the domestic personal housing mortgage rules, but also many local real estate market prices, an important reason for a large number of bank funds into the real estate business.

Personal housing mortgage system China change should be from the following several aspects. One is the personal mortgage loans the authenticity principle in modern, more scientific and reasonable way to evaluate the authenticity of the individual repayment ability of the individual mortgage loans, strict market access standards; two is the loan risk pricing differences, different credit rating of the borrower, take a different risk fixed price; three is a comprehensive examination of individual mortgage bank staff the internal situation, rules and making comprehensive supervision of commercial bank credit officers personal mortgage loans internalization (such as HSBC only for personal self occupied housing loans); four are distinguished by the personal credit policy of consumption and investment in real estate, take policy strictly different behavior. If so, not only to ensure that the domestic real estate market prosperity and development, but also can reduce the risk and crisis of domestic financial system.