Abstract      To

Mortgage purchase is the developed countries and regions in the world widely used in construction of commercial housing purchased the tickets for popular as collateral to obtain bank loans financing the purchase, 90's were introduced in China, in recent years become increasingly popular. Therefore the author to the system as the object of study, do research on Legal Problems of mortgage purchase of the nature and the effect of, and to further explore the preventing and controlling the risks in the mortgage purchase, learn from the advanced experience of developed countries and regions, the author's working practice, puts forward suggestions to perfect our mortgage purchase system.

 

 

Keywords: mortgage purchase Legal issues

Legal problems of mortgage purchase

First chapter      The concept and legal characteristics of mortgage purchase

The origin, the mortgage purchase

The term "mortgage" comes from Hongkong, is the people of Hongkong for the Anglo American Law on a way to guarantee the translation of "Mortgage", the system first is a British security system. But the mortgage purchase property as a popular in contemporary developed countries and regions to finance the purchase was originated in Hongkong. In 1954 the Hongkong Lixin home company, will be in the building domain "layered sale, installment payment" after the pre-sale has become both a Xianfang sales sales. At the same time, due to the active participation of banks, the mortgage purchase quietly rising, and soon received vigorous development. After many years of operation, the mortgage purchase in Hongkong is quite mature, become home buyers preferred the most favorable terms of payment.

At the beginning of the 90's, along with China's reform of the housing system, mortgage purchase first in Guangdong, Fujian and other coastal areas, then, in some local regulations have made specific provisions. In May 9, 1998 the people's Bank of Chinese formulation of "individual housing loans management approach" introduced, marking China's mortgage purchase more orderly, and rapid development.

Two, the concept of mortgage purchase

Mortgage purchase as a purchase of ways including Xianfang mortgage and mortgage is the mortgage, but the strict sense of the mortgage purchase only refers to the mortgage, this paper only on Legal Problems of mortgage. In accordance with the provisions of China's "City real estate collateral management approach", mortgage refers to the purchase in the first phase of the pay Fangjiekuan, loans from banks for the payment of the remaining mortgage, the hook housing as collateral for bank loans to repay the loan guarantees. Essence is the banks, developers and property buyers to three parties in a financing real estate management and development.

The legal characteristics of three, mortgage purchase

1.     Mortgage involves two contracts with three parties

Two contract refers to a contract for the sale of flats and mortgage contract. Two the subject matter of the contract and have the same sex, the same flowers, not the completion of delivery of the contract, two closely related, interact, interdependence: Equitable contract is the premise of mortgage contract set, no speculative trading can not be set up mortgage; mortgage contracts can be said to be added future sales contracts, the contract for the sale of flats is possible. Default any contracts are likely to lead to perform another contract impossible or unnecessary. This makes the mortgage is obviously different from other forms of security.

The three party means developers, buyers and lenders. Specifically, they have this legal relation between developers and real people: is immovable property (building) the buyer seller relationship, the rights and obligations of both parties in a contract for the sale of specific performance assessment; and there is a dual relationship between the purchase and the bank is lending relationship: first, purchase the debtor, creditors of the bank; mortgage guarantee, the purchase is the mortgage, bank mortgage beneficiaries (or mortgagee). In addition, if the developers as the mortgage guarantee people, between the bank and the developers also will have the guarantee relationship.

2.         Mortgage of the subject matter is a kind of expectation interest

In common law countries, the mortgage is regarded as a kind of property mortgage (Mortgage) to look at. But in fact the mortgage and real estate mortgage has remarkable differences. Because of the existence of speculation is not a real property, the mortgage is set, mortgage people simply unable to obtain property purchased the building, he provided to the bank loan repayment guarantee is only a certain time in the future has been building rights, namely a kind of ownership "be right". Therefore, as in mortgage guarantee subject matter is actually a building made of expectant right.

3.         Realization of mortgage is special

Realization of mortgage right is refers to the borrower mortgage contract contract matters, the mortgagee exercising right of mortgage debt, to make it the way. Realization of mortgage right has its particularity:

A is mainly realized by the creditor's right of subrogation. General real estate mortgage, mortgage by the mortgaged property or the sale of collateral price first refusal in two ways. And the mortgage right is mainly realized by the creditor's right of subrogation, namely the right to mortgage people to their own name to the exercise of the rights of creditors, main show is in: 1) when the mortgage people to enjoy the right to third people rather than harm, the mortgage creditor's right, mortgage right to subrogation rights; 2) if the expiration of mortgage can not owing on the loan, the mortgagee can benefit directly from the mortgage subject matter; 3) if the lawsuit, the mortgagee may according to the mortgage contract, directly involved in the proceedings in the name of the owner of the property.

B can be realized through the mortgage of right of redemption. When the mortgagor fails to fulfill its responsibility, and still not fulfilled in the given grace period obligations, the mortgagee may request the court to cancel the mortgage foreclosure, so as to obtain mortgage the absolute ownership.

The second chapter of the nature and effect of the mortgage

Properties of a, equitable mortgage

Mortgage is a kind of purchase will be in a future date really ownership, is now being built or to be constructed buildings as collateral and set the property security mode. How does it guarantee system of ownership? China's mainland scholars mainly mortgage and pledge of obligation said two views.

1.         Not the chattel mortgage said

According to this theory, the mortgage actually do not belong to the chattel mortgage. The reason is: as the real estate mortgage, mortgage is also in the real property pledge. Although speculation is not the existing buildings, but buy flowers will lead to actually get the building, but also because of the purchase has paid part of the house, in buy flowers, although speculation has a kind of uncertainty, it is equivalent to the value of existing buildings. In addition, similar to the common set of real estate mortgage, mortgage also aims to guarantee the repayment of debt, as collateral for mortgage real estate still people (the borrower) possession, use. In legal effect, the same as the mortgagee, the mortgagee has the right to supervise and inspect the collateral, if necessary, directly involved in the security management. Finally in the mortgage people (debtor) does not fulfill the debt, the creditor has the right to dispose of collateral, the discount or sale of property, the auction price of priority in order to realize the right to mortgage. Therefore, the mortgage is actually a real property mortgage.

2.         Pledge of obligation and said

This said, the purchase contract signed with the bank mortgage, because the subject matter is not yet exist or are "growth" in the house, and did not exist, so the purchase of collateral subject-matter uncompleted not enjoy any property rights and is only a kind of creditor's rights, namely the request developers in the future. The delivery of housing rights. At this time the buyer provide to the bank repayment guarantee subject matter is not equitable ownership but to enjoy the rights of property developers, and the creditor's rights in accordance with the subject matter of pledge of rights as rights: 1) is property right; 2) can be transferred; 3) is adapted to pledge rights.

No matter the immovable property mortgage or pledge of obligation that can not say the exact nature of equitable mortgage. The author thinks that it is more similar to the civil law system, guarantee the untypical guarantee system. The transferring guarantee (security transfers) is also called a guaranteed, trust guarantee, refers to the debtor or third are guaranteed obligation, the subject matter of security rights (usually ownership) pre transfer to the creditors, shall be agreed upon by both parties on the debt, the subject matter of security return and the debtor or the third person; for when debtor nonperformance, creditor a guarantee in respect of the subject matter of security for repayment. From the system point of view origin, Rome law of Guaranty Trust is the guarantee of the predecessor of modern. The mortgage property identified as transferring guarantee is to emphasize the borrower paid in full before the debt ownership, mortgage real estate to the lending bank. This will be conducive to urge the borrowing by acquired property ownership to sinking, and constraints in the residential, the use of real estate mortgage process. In order to ensure the realization of the bank creditor's rights.

Two, equitable mortgage set

1.         The purchase and developers signed a contract for the sale of flats

A valid contract for the sale of flats is the premise of mortgage contract. The purchase and developers on the housing is located and area, the delivery way and deadline, housing delivery time, the quality of housing, the liability for breach of contract and other specific requirements, the future housing completion, can be directly to contract for housing property transfer registration. But in the purchase of real estate mortgage by circumstances, the future sale and mortgage most at the same time. Therefore, the purchase and developers are generally first signed a temporary contract, and then apply for loans from banks, the bank loan commitments after the signing of the formal contract for the sale.

2.         The purchase of delivery of the first purchase

Generally speaking, in the sale of flats, houses are not one-time paid the full purchase, but by building the image of progress, in accordance with the contract payment. Keep time purchase paid in to apply for mortgage loans before the general. But the practice is more from the purchase will initial purchase deposit loan commitment by the bank, then to developers.

3.         Property buyers apply for mortgage loans from banks

In the purchase contract to determine its initial purchase, delivery to the commercial housing built after the completion of delivery can apply for mortgage loans. But usually, equitable Yugouren and developers in a temporary contract is to apply a bank loan.

4.         Signed mortgage contract

5.         Equitable mortgage publicity

Mortgage publicity is a very important problem. Risk as a guarantor, the bank must withstand not only from the borrower is also from the sale. Because the set mortgage, the building has not yet fully formed, the mortgage was also unable to regulate the mortgage practice, used to set mortgage equitable actual control in the sale of hand, if does not solve the problem of publicity of the mortgage, there will be pre-sale will flower again sold to a bona fide third party in such circumstances and make as a guarantor bank security laws.

In many other countries, not like ordinary chattel mortgage, the mortgage registration system is usually adopted in. In accordance with the mainland of China, the provisions of relevant laws, the real estate collateral after registration after the entry into force of the. According to the "commercial housing purchased the tickets or in the construction mortgage City real estate collateral management approach", also must register, registration by the registration authority in the mortgage contract is make records. Mortgage real estate mortgage period completed, party to the ownership certificate of the real estate in the mortgagor, the re registration of real estate mortgage.

Three, mortgage is the inner effect

Mortgage is set between the mortgagor, mortgagee rights and obligations is the mortgage is the inner effect. Because the mortgage business to speculation, but speculation sale has the state intervention is strong, so the two sides in the mortgage rights and obligations of the parties to their respective also is not agreed upon by both parties, but through the combination of two ways: a reflected and set down in the law, another is the two sides agreed in the mortgage in the contract.

1.       The scope of creditor's rights and guarantee of mortgage guarantee

The mortgage contract is closely related with its. Not without the consent of the lender, the borrower shall not take any action to eliminate or change the presale contract, if to take, the behavior for the mortgagee shall have no legal effect. But, when the mortgage borrower is unable to perform a contract for the sale of the provisions of its obligations, to ensure their own interests, the mortgage lender has the right to the borrower to fulfill, all costs spent by the borrower must. Therefore, in the mortgage collateral, scope includes not only the original creditor (bank loans), interest, Chi Yan's interest, including the flowers in a contract of sale shall purchase burden and not burden, by the guarantor on behalf of its performance and pay all expenses, including fees, service charges, transaction costs transaction costs. The scope of subject matter of security is all equity buyer equitable contract in which enjoys the rights, including buildings, setting insurance interests.

2.       The subject matter of possession and utilization

Before the completion of the mortgage, guarantee subject matter in fact reflected in the ownership certificate (such as pre-sale contract). At this time, the ownership certificate of general hand held by the bank, the lending bank made a similar pledge right position. While in the building after the completion, in accordance with the Anglo American and Hongkong practice, the relevant management authority certificate is still retained in bank loans, the lending bank is only achieved similar to the mortgagee's status, as long as the borrower as scheduled performance, the real estate mortgage have possession. This is decided by the purpose of the mortgage, because the final purpose of mortgage borrowers to set in, only spend a small amount of money can get live or use of property, the demand for real estate, while at the same time, the banks involved in the mortgage is not to obtain the ownership of buildings, but lies in obtaining the loan spreads through funds circulation. Therefore, although the transfer of ownership to the mortgage bank name, but the reasons so demand just to guarantee bank debt to pay off. Therefore, the mortgage is a kind of but not transfer property possession to set security through the transfer of property rights.

In the use of buildings, both are certain constraints. On the mortgage people, without the consent of the banks, may change or cancel the property sale contract, shall not take any may cause future sale invalid behavior. For mortgages, although he has a right of possession, but at the same time, he has the obligation of taking care of. Because the mortgage of building, possession is not only for their own interest, possession, but also related to the interests of the right of mortgage. So, the mortgage period, the mortgage shall not apply damage to buildings, shall not apply to collateral value decreasing behavior, moreover, to keep good collateral, from the external invasion and damage or loss. If the mortgage people agree that unauthorized disposition of buildings or buildings have lead to value destruction, destruction without the mortgagee, shall bear the liability for damages.

(3) the right to request to redeem the mortgage object (also the foreclosure)

To redeem the mortgage object request refers to the right of mortgage debt, a claim submitted to the mortgage right of people. The right to request the right to mortgage should be based on, mortgage, transfer in the name of the property back to the mortgage person. After termination, the mortgage, the rights and obligations of both parties to destroy. As a right, in the mortgage process, as long as the mortgage on their responsibilities stipulated in the mortgage contract, he will be entitled to statutory also foreclosures, but the exercise of this right only when he will all loan principal repaid only with the statutory conditions.

(4) mortgage mortgage right default rights

Bank loans in the mortgage is in addition to enjoy the right to recover the loan principal and interest, the mortgage people not scheduled repayment and constitutes a breach of contract, according to the different situation of the bank may exercise the following rights:

1.  The right to charge interest

Most banks will have a grace period in the mortgage repayment, usually 6 to 13 days, not late payment after the grace period, no penalty. But more than bank gives grace to impose a punitive interest repayment plan, calculation method of interest is often specified by the banks themselves.

2.  Require advance repaid loans to the right

When the mortgage repayment period not (January issue), the bank will warn the mortgage repayment letter to urge them, if the letter a few days later the borrower repayment or not does not reply, the bank will through its lawyers sent a letter to the borrower repaid all the remaining loan deadline January mortgage and other expenses of formal notice.

Four mortgage is the external validity

The external effect of mortgage is the mortgage period (including its present building to become mortgage mortgage expiration period) of the third person other than the parties arising from the relationship of rights and obligations.

1.    Mortgage people fulfill the responsibility for repayment mortgage period, the relationship between punishment and the third person subject matter

Here mainly refers to the legal punishment disposition, namely the mortgagor or mortgagee of the transfer of rights, set the right (such as pledge, mortgage, etc.) will be abandoned, rental.

1.  The mortgage right of disposition

In the mortgage, although people in the mortgage mortgage interest, pay off all the money to achieve redemption before the mortgage real estate legal ownership, in theory, it has the right to dispose of by the mortgage real estate. However, in accordance with the contemporary world rule, is prohibited by the mortgage real estate mortgage against. Because: first, the setting of the purpose is to let mortgage mortgage people in the absence of sufficient funds to meet the need of building use. But, in the mortgage process, as long as the mortgage on schedule to fulfill the repayment obligations shall enjoy the legal possession and also the foreclosure, therefore, the mortgagee shall not be disposed of by the mortgage real estate. Secondly, although in foreign relations of mortgage mortgage people have ownership of collateral, but his right is not absolute, "by the mortgage people rights actually by him also property and contract duty bound. His property rights is not bound by the contract, but he bound." In fact, the mortgagee has only a restricted the exercise of ownership, the ownership is the actual line is the right to mortgage people get a similar to the pledgee or the rights of the mortgagee. In addition, although the Anglo American, Hongkong and other countries and regions to the right to mortgage people extensive rights, but these rights most of them just in case of debtor default can exercise.

2.  Punishment by the mortgage real estate mortgage

In the mortgage, mortgage can be transferred by the mortgage real estate is a very interesting question. Mortgage is the mortgage real estate transfer, in fact is to dispose of their rights in the future of the contract, which is not completed delivery of commercial housing for the transfer, commonly known as "speculation". From the legislation in the world, the creditors of the transfer of creditor's right has become the general rule. But, unlike the general creditor's rights transfer, the mortgage, the successful bidder shall not be arbitrarily in the transfer of creditor's right. Because of speculation in the transfer will involve the interests of the banks. Because the bank agreed to mortgage loans, not only from the equitable value assessment, but also consider the transfer of mortgage to the bank, set up security in the house, his right certificate is kept in the hands of the banks, so the transfer act will be limited. Specifically, the purchase of debt without the consent of the right can't be guaranteed certain legal action to eliminate or change of creditor's rights, otherwise, the behavior of the guarantor shall have no legal effect, not against the guarantor to mortgage the property right of priority.

Risk prevention and control in the third chapter the mortgage purchase

1.    Building damage or loss resulting therefrom occasions of responsibility

At present, the vast majority of mortgage contracts are specified: all or part of the mortgage property damage, no matter what reason be caused by, also no one fault, by the mortgage burden all responsibilities, and to the right of mortgage for all the losses caused, the mortgagee may apply its mortgage rights and. The author thinks, this provision is obviously unreasonable, because it does not partition the specific situation but at the expense of mortgage rights at the expense of blindly protect the right to mortgage the rights and interests of the people, which leads to the imbalance of rights. The author thinks, the court shall distinguish the specific circumstances to determine the responsibility, but not rigidly adhere to the terms of the contract. Namely: 1) if the building system before the completion of the project acceptance because developers reasons have been damaged, the mortgagor shall not bear any responsibility, but by the developer to assume responsibility. Because real estate development is caused by developers, the entire process basically is controlled by the developers, the mortgage contract both parties not involved in any aspect of the project, so the requirement for equitable mortgage risk is obviously unreasonable. 2) if the house is due to irresistible force and loss of, damage, construction, the mortgage people and developers are not responsible for. If the building has been insured, the insured for mortgage, the mortgagee may is mortgage insurance claim to exercise the subrogation; if the applicant is developers, developers should be the income insurance payment and mortgage right. 3) if the damage to the buildings department in occupancy after mortgage people fault occurs, the mortgagee should not immediately exercise the right to mortgage, but the mortgage should be required to provide other property as security standard, only to protect the right of mortgage in the mortgage people refuse to measure, the mortgage right talent can implement the right of mortgage.

2.    Early repayment of reasons (term interest loss about paragraph)

Mortgage contracts often stipulates: changes in the mortgage person (including of unsound mind), death, mergers and acquisitions, as well as collateral damage suffered serious matters, the mortgagee has the right to request the mortgagor to advance repayment of some or all of the actual loan, and immediately punish developers guarantor. This clause belongs to the term interest loss provisions, but the situation is not suitable as a term interest loss reasons. In the circumstances, shall be made as follows: 1, in the mortgage person although lesions (including of unsound mind) but did not affect its ability to repay the mortgage, shall be made by the agent or the guardian of its continue to perform the contract obligations; only in the mortgage people diseases seriously affect its ability to repay the loan or the guardian refused to continue to perform the contract obligations and may lead to frustration when mortgage, mortgage right talent can perform the above terms. 2, if the mortgage people died during the bank mortgage loans, if the mortgage of the legitimate heir or legatee negotiations with banks, can the new bank mortgage relationship established by the mortgage of the legitimate heir or legatee to the identity of the new mortgage with the bank. If the mortgage of the legitimate heir or legatee refused owing on the loan, the mortgage right may carry out the right to mortgage or to guarantee recovery. 3, in the mortgage people had a merger or acquisition occasions, suggested by the combined enterprise or the acquisition of bear the repayment obligation. 4, in the collateral for mortgage people behavior and have been damaged or destroyed, not the mortgage term interests of the people, but the analogy of our guarantee law the fifty-first regulation, the mortgagee may require the mortgagor restore collateral value, or provide and reduce the value of the collateral.

3.    Processing the mortgagee bank breach of contract

If the bank for a variety of reasons and excuses not to transfer the ownership of housing mortgage and has duly mortgage interest mortgage people, should be timely delivery, delivery delay and compensation for the losses caused by the mortgage. If banks are allowed to dispose of collateral in the settlement period before, then mortgage people can take ownership or the mortgage relations against the relative person of ill; the bank's behavior belongs to the default and infringement, should bear the liability in contract and the tort liability, in the premise of not in violation of the provisions of laws and damage public or national interest, mortgage can choose the most has the right to claim for their rights to claim compensation.

4.    People do not want to continue to use the mortgage mortgage

For mortgage on mortgage loan period in case of other reasons not to continue to use the housing mortgage, mortgage advice should be timely to the mortgagee bank proposed, and go through the relevant formalities in accordance with the provisions, and not by the bank or mortgage housing the right to use the transfer to others.

The fourth chapter of perfect our country mortgage legislation

One, perfect legislation

Make mortgage market disorder, chaos phenomenon is rooted in the law is not perfect, the key to solve the problem should also focus on the law. To solve the problem of the mortgage market, in the final analysis, must solve the legal problems of the mortgage market, we must study and explore effective measures to guide and regulate the mortgage market behavior from the law, establish and improve the prevention of purchase, mortgage banks and real estate developers and other parties market risk legal security and guard system, truly standardize the operation, which prompted the mortgage can be balanced, orderly operation, ensure the safety of the mortgage market. A big risk at present our country mortgage property buyers and the lending bank is facing developers can not be delivered on schedule in accordance with the commercial housing pre-sale contract agreed standards. To make the risk control, is the key to control good pre-sale of commercial housing. Although China has formulated the "City Property Management Law" and "Party City pre-sale commercial housing management measures" provisions, but because of relatively rough, there are many problems in the mortgage transaction, affects mainly has: 1, to purchase when the levy, how to levy no unified regulation, the real estate developers collection confusion, also easy to cause the dispute. 2, for the use and management of the purchase of the lack of supervision of effective protection. Some developers collection after diversion or even with Juankuan escape. 3, the developers default responsibility lack of clearly defined. Developers default responsibility mainly in two aspects: one is the delay in the delivery of commercial housing developers or project unfinished; two is the developer delivery and buildings do not conform with the contract, or is goods incorrect board or the area has shrunk. To increase development of responsibility, to fulfill the obligations, in practice many developers bank loans as the guarantor in the mortgage contract. In order to balance the rights and interests of all parties involved and to solve the above problems, the author think we should legislation on the purchase and use of explicitly stipulated by the.

Two, the lawyer to participate actively in

Lawyers involved in the mortgage not only for the reduced many complicated procedures, it is more important that the mortgage rights of the parties are protected, but the government's tax with security. China's "City real estate management law" article fifty-sixth although referred to real estate intermediary organizations play in the real estate transaction role, but the necessity and does not specify the lawyers involved in the sale of real estate and real estate mortgage. In fact, in the mainland at present the related mortgage legislation is not perfect, the maneuverability is not strong, easy to exploit the situation, has the vital significance lawyers involved in. Because lawyers can apply their professional knowledge, on the part of mortgage, such as contract, the sale of housing and mortgage registration, supervision and the use of the loan and so on legal review and check, prevent all kinds of illegal behavior. While the lawyer's participation is particularly important for the loan bank. At present our country mainland mortgage, lawyers involved in it is not comprehensive enough, full house, both parties not to hire a lawyer, his direct processing situation exists, which often lead to disputes. At the same time, as the right to mortgage the bank bear too much by the lawyers to do the work, not only is insufficient, but also not conducive to the prevention of risk. Perfect mortgage market urgent need lawyers involved in.

At present, the lawyer in the mortgage can be carried out as follows: (1) review the relevant qualification. Includes a review of developers and property buyers eligibility; (2) the drafting of legal documents, such as its sales contracts, mortgage contracts; (3) handle the relevant registration procedures, such as commercial housing pre-sale registration procedures, mortgage registration, property transfer procedures; (4) opened a special account, notify the bank transfer money, then the money to developers, and developers for the use of funds; (5) accept the other party's Commission in a party's breach of contract case, use legal means to protect the interests of the proper.

Three, the insurance industry comprehensive intervention

"Individual housing loans to the people's Bank of Chinese management law" clearly states that "to the property as collateral, borrowers will be required to complete the contract before the housing lenders charge related to insurance or insurance procedures." However, our country mortgage, mortgage people most is the purchase of housing loans to residents, enthusiasm and characteristics of the height of the housing loan risk insurance company participation is not high, willing to accept insurance of housing loans is very limited. However, from the analysis of current situation of the development of the international practice and China's financial industry, the insurance industry is not only the development of interventional mortgage bank financing business, residential housing industry in China, but also an inevitable choice for the development of the insurance industry.

Four, the support of the government

In addition to the establishment of the official housing insurance agencies, combined with China's specific situation, the Chinese government can act as the loan guarantee. Because of the various measures is not perfect, in the mortgage, bank risk prevention measures loan some influence extended loan market, some are difficult to implement. If the borrower in addition to the purchase presale mortgage, but also for its guarantor will greatly limit the development of housing loans, because ordinary people hard to find good information security, even if found, the credit risk is still high, the loans are difficult to obtain preferential, ordinary residents or very difficult to obtain the required purchase loan. And developers as the borrower debt guarantor will affect the enthusiasm of developers to use the mortgage pre-sale real estate, at the same time when disputes arise, difficult to distinguish, is not conducive to the protection of the rights and interests of the parties. In addition, because of the limitation of our current mortgage underwriting risk, loan banks hope to spread risk through insurance expectations can be greatly reduced. On the one hand require mortgage can get further development of housing and improve the living standard of residents of the target, and on the other hand, the risk of mortgage are not effectively prevent make it hard for the banks to relax the mortgage conditions. How to solve this contradiction? The government as guarantor will be positive and effective measures. Because the government credit is reliable, if the housing loan guarantees provided to ordinary residents, will greatly reduce or even cancel the credit risk, so that banks will willing to increase mortgage loan amount, provide preferential mortgage loans to low-income residents. By the government to the housing loan guarantees the effectiveness has been verified by the developed countries.

In addition, the government can take various measures, such as housing loan interest tax, loans to bank housing loan interest losses subsidies to promote the development of the mortgage.

Notes.

1See also: "Cai Yaozhong research" China real estate law Vol 305.

② see Luo Junming: "USA and civil conflict", the people's court press, 1997 May edition, page 224th.

The original: "see Ma new problems in real estate cases and case study", Fifteenth pages, forty-eighth pages, Cheng Huiying editor of "real estate development and trade, real estate law principles and practices", Fudan University press, 1997 edition, page 195th.

The original: "see Ma new problems in real estate cases and case study", sixth pages, 1998 Guangzhou building legal problems of mortgage seminar papers selected Liu Jun, Liang Wenshui: "the jurisprudence of mortgage risk prevention".

And see Wang Jianyuan: "study" the system of alienation guarantee, "civil and Commercial Law Review" Tenth volumes, publishing house of law, 1998 edition, page 747th.

We refer to our "guarantee law" article forty-third, "City real estate management law" forty-eighth and "City real estate collateral management approach" article thirty-first.

The Construction Bank Shenzhen branch to China "mortgage (mortgage) loan contract" Twelfth paragraph fifth, eleventh; Shenzhen branch of industrial and Commercial Bank of China "commercial housing mortgage (mortgage) sixth seventh loan contract".

Reference.

"Gao Fuping on the" real estate lawHuang Wu double the

"Cai Yaozhong research" Chinese real estate law

"New real estate cases and case study" Ma Yuan

"Study" the legal system to guarantee Wang Chuang