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People's Republic of China (PRC) property right law
Article 20
In order to ensure the realization of property rights in the future, the parties may apply to the registration authority for advance notice registration as agreed. After the advance notice registration, if the obligee without advance notice registration agrees to dispose of the real estate, the real right effect will not occur.
After the advance notice registration, the creditor's rights are extinguished or the application for registration is not made within three months from the date when the real estate registration can be carried out, and the advance notice registration is invalid.
Shanghai Qingpu Branch of China Everbright Bank Corporation
Verb (abbreviation of verb) Shanghai Donghe Real Estate Co., Ltd. v. Chen Siqi (dispute over guarantee contract)
The Supreme People's Court Bulletin No.9,2014
▲ referee summary
1. In order to obtain bank funds, the developer colluded with the natural person to sign a false pre-sale commercial housing sales contract, and signed a commercial housing mortgage loan contract with the bank in the name of the natural person to obtain bank loans. When the commercial housing sales contract is confirmed to be invalid according to law, the developer and the natural person shall bear joint and several liability for the bank loan.
Second, in the mortgage loan of pre-sale commercial housing, although the bank and the borrower (buyers) registered the pre-sale commercial housing, the pre-registration does not enable the bank to obtain the real mortgage, but it is an exclusive preservation in advance for the bank to set the mortgage on the house after the house is completed and delivered to the borrower. After the completion of the house, if the property right is not registered in the borrower's name, the mortgage registration cannot be handled, and the bank cannot exercise the mortgage right on the pre-sold commercial housing.
▌ Controversy focus: Can the appellant China Everbright Bank exercise the mortgage right on the property involved?
After trial, the Shanghai No.2 Intermediate People's Court held that the advance notice registration of mortgage on disputed property has different legal nature and legal effect from the registration of mortgage establishment.
According to the Property Law of People's Republic of China (PRC) and other relevant laws and regulations, after the advance notice registration, if the real estate is disposed of without the consent of the obligee of the advance notice registration, the real right effect will not occur. After the advance notice registration, the creditor's rights are extinguished or the application for registration is not made within three months from the date when the real estate registration can be carried out, and the advance notice registration is invalid. In other words, the mortgage notice registration is not a real mortgage, but the right to claim the change of mortgage right in the future, which has exclusive effect.
Therefore, the appellant China Everbright Bank, as the obligee of pre-registration of mortgage, enjoys the right to register the mortgaged house when the mortgage registration conditions reach or the agreed time limit expires before the mortgage registration, and can exclusively oppose others' punishment of the mortgaged house, but does not enjoy the real right mortgage of the mortgaged house. The judgment of first instance is wrong and should be corrected.
Wuxi Branch of Shanghai Pudong Development Bank Co., Ltd. v. Wang et al.
-Real estate registered only by mortgage notice does not have the priority of compensation.
Selected Cases of the People's Court Series 4 20 13
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Referee's score
As a temporary registration act, the advance notice registration of mortgage is neither a regulatory act of the administrative department nor a mortgage registration with direct control effect. The purpose of its establishment is that there is a long interval between the establishment of creditor's rights and the transfer registration of real estate due to various reasons such as housing construction. In order to balance the interests of all parties in the real estate transaction and maintain the security of the transaction, the law gives the mortgage notice registration the effect of opposing the third party's real right, but since the real right of real estate has not been established, it does not have the legal mortgage right.
Reason of the referee
The People's Court of nanchang district, Wuxi held that the Individual Housing Loan (Comprehensive) Contract signed by Shanghai Pudong Development Bank Wuxi Branch and Wang and Zhou Tingfa was legal and valid. During the performance of the contract, Wang failed to repay the loan principal and interest in full on time, which constituted a breach of contract. Wuxi Branch of Shanghai Pudong Development Bank has the right to announce the early maturity of the loan according to the Individual Housing Loan (Comprehensive) Contract, and require Wang Bi to pay off the loan principal and interest and related expenses immediately. The Individual Housing Loan (Comprehensive) Contract stipulates that all expenses, including but not limited to legal fees and attorney fees, incurred by Shanghai Pudong Development Bank Wuxi Branch in pursuing the creditor's rights shall be borne by Wang Bi Association. At present, Wuxi Branch of Shanghai Pudong Development Bank claims that the lawyer's agency fee for realizing the actual payment of creditor's rights is 25,449 yuan, which is in line with the agreement and is supported.
Wang and Zhou Tingfa are husband and wife, and the above debts should be regarded as the same debts of husband and wife, and they should bear the same repayment responsibilities. Both parties to the contract have only gone through the advance notice registration formalities of the mortgaged property, but so far they have not gone through the formal mortgage registration formalities, and Wuxi Branch of Shanghai Pudong Development Bank has not obtained the house ownership certificate. Wuxi Branch of Shanghai Pudong Development Bank claims that the mortgage property should be discounted or the proceeds from auction or sale should be paid first. There is no legal basis, so our hospital will not support it.
According to the Commercial Housing Loan Cooperation Agreement, Hualuo Company and Shanghai Pudong Development Bank Wuxi Branch have formed a legal and effective guarantee contract relationship. The Commercial Housing Loan Cooperation Agreement stipulates: "The guarantee period starts from the date when Shanghai Pudong Development Bank Wuxi Branch signs the loan contract with the borrower to the date when Hualuo Company completes the house ownership certificate and land use certificate for the purchaser, completes the mortgage registration of the house, and delivers other house ownership certificates and other house ownership certificates to Shanghai Pudong Development Bank Wuxi Branch for safekeeping". Therefore, the loan involved in this case was provided by Hualuo Company in installments, and the mortgaged property has not gone through the formal mortgage registration formalities so far. Hualuo Company shall be jointly and severally liable for the borrower's debts within the scope of guarantee as agreed. Hualuo Company has the right to recover from the debtor after assuming the guarantee responsibility.
Tang Yi and Ye Hui and other civil lending disputes execution case.
-Judicial treatment of mortgage advance notice registration and court pre-seizure registration when the formal registration conditions are met.
People's judicial case No.4, 20 14
▲ referee's gist
Mortgage advance notice registration procedure registers not property rights, but creditor's rights with priority, so banks do not enjoy priority when they only register mortgage advance notice. After obtaining the title certificate at the auction house, the obligee who has registered the advance notice of mortgage needs to apply to the registration department for formal mortgage registration, and the registration department should handle the corresponding conversion registration according to the obligee's application, instead of actively changing it to formal mortgage registration by the registration department. However, due to the consideration of fairness and benefit value, the court took pre-sealing measures for the pre-purchased commercial house after the mortgage notice registration. When the real estate meets the conditions of formal registration, certain institutional arrangements should be made to change the previous mortgage notice registration into formal mortgage registration, and compensation should be made first after the court seals it up and disposes of it.
Execution caseNo.: (20 12) Chongzhi Duzi No.265 Reply: (20 13) Xizhi Tazi No.000 1.
The facts of a legal case
Executor of application: Tang Yi.
Executed persons: Ye Hui, Wang Shuqiang, Jiangsu Wuxi Opera Jiangnan Catering and Entertainment Co., Ltd. (hereinafter referred to as Opera Jiangnan Company).
On 20 1 1 year 1 month 2 1 day, the People's Court of Chong 'an District, Wuxi City, Jiangsu Province ruled to seal up Unit 282-65438+ of Building No.2, Mashan Meiliangyuan, Wuxi City, which was purchased by Ye Hui from Wuxi Jipin Real Estate Co., Ltd., because the property right of the house has not been registered. Wuxi Housing Property Supervision Office (hereinafter referred to as Property Supervision Office) indicated on the delivery receipt that "Taihu Meiliangyuan 12-282 has not registered the property right and has a mortgage".
On February 6, 20 12, Chong 'an District People's Court made a civil judgment of (20 1 1) Chongminchuzi No. 9 18 and order: 1. Ye Hui returned the principal of Tang Yi's loan of 3.5 million yuan, and paid the penalty of1100000 yuan. 2. Wang Shuqiang and Xijiangnan Company shall be jointly and severally liable for the above debts of Ye Hui. Wang Shuqiang and Xi Jiangnan Company have the right to claim compensation from Ye Hui after assuming the guarantee responsibility. Because the person subjected to execution did not consciously perform the payment obligation determined by legal documents, the applicant applied to the Chong 'an District People's Court for compulsory execution. During the implementation, Chong 'an District People's Court appraised and auctioned the above-mentioned houses, and the appraised price was 2,688,900 yuan. After two auctions, no one signed up for the auction, so the third auction is planned.
It is also found out that on June 30th, 20 10, Ye Hui signed a commercial housing sales contract with Wuxi Jipin Real Estate Co., Ltd. to purchase 282-1-3-storey houses in Mashan 12 Meiliangyuan, Wuxi, with an area of 288.79 square meters and a purchase price of 22064 12 yuan. On July 9, the same year, Ye Hui applied for a housing mortgage loan of RMB 6,543,800+0.54 million from China Guangfa Bank Wuxi Branch, with a loan term of 25 years, with a balance of RMB 6,543,800+0.4 million. On July 29th of the same year, Wuxi Real Estate Management Bureau issued the House Notice Registration Certificate with Xifang Pre-registration WordNo. WX10160019. The business type of advance notice registration is the advance notice registration of pre-sale commercial housing mortgage. The right of advance notice registration is Guangfa Bank Wuxi Branch, and the obligation of advance notice registration is Ye Hui. On June 9th, 20 13, Ye Hui obtained the property right certificate, and the property supervision department changed the pre-registration of pre-purchased commercial housing mortgage to formal mortgage registration.
carry out
After the applicant applied to execute the case, the undertaker of the execution case took into account that the house had not been pre-registered with the property right certificate and the pre-purchased commercial house mortgage, and did not take evaluation auction measures, and then took evaluation auction measures according to the reply of Wuxi Intermediate People's Court (20 12) Xishang Tezi No.0002.
After the auction evaluation measures were taken in this case, Wuxi Branch of Guangfa Bank filed an objection to Chong 'an District People's Court on June 13, arguing that the bank has the priority to be compensated for the proceeds from the auction of the property, regardless of the mortgage notice registration or the formal mortgage registration, and requested the court to confirm it. On June 20th of the same year, Mr. Tang applied to the Chong 'an District People's Court to cancel the mortgage registration handled by the Property Supervision Office. On June 25th, the People's Court of Chong 'an District sent a letter to the property supervision office, informing it that it was an act of disposing of the property seized by the court without authorization to go through the formal mortgage registration procedures before the court sealed it up, and asked the property supervision office to correct the above behavior within 10 days after receiving the letter, otherwise it was ordered to bear the corresponding liability for compensation. On July 1 day, the Property Supervision Office replied to the Chong 'an District People's Court that the validity and scope of advance notice registration are clearly stipulated in laws and regulations, and the pre-buyer has the right to set mortgage on the pre-purchased commercial housing.
According to the current pre-sale system of commercial housing in China, the pre-buyers of commercial housing in Wuxi account for 60%-70% of the total commercial housing transactions in the form of mortgage loans. Since the implementation of the Property Law in 2007, the Property Supervision Office has to register tens of thousands of mortgage advance notices every year. The reason why the property supervision office accepted the pre-seizure by the court is also because the person subjected to execution (the buyer) obtained the future ownership of the house because of the loan. Without a loan, the person subjected to execution can't get the house and can't assist the court in pre-sealing up. After the initial registration of the house in this case, the pre-buyer changed the advance notice registration of the commercial house to the house transfer registration on June 20 13, and the attached advance notice registration of the pre-purchased commercial house was also changed to the formal mortgage registration, and the pre-seizure by the court was the formal seizure. Mortgage registration before mortgage does not create new rights and does not affect the effectiveness of court seizure, so there is no right to dispose of the property seized by the court.
In the process of case execution and objection review, the Judicial Committee of Chong 'an District People's Court formed two opinions:
The first opinion is that the behavior of the production supervision office is an act of disposing of the property seized by the court without authorization. The reasons are as follows: According to the reply of Wuxi Intermediate People's Court (20 12), the real estate registered with the advance notice of mortgage does not have the priority right of compensation, the obligee registered with the advance notice of mortgage of pre-purchased commercial housing does not have the same rights as the formal mortgage, the real estate involved in the pre-seizure did not have the mortgage right, and now the mortgage registration procedures have been completed by the court where the property supervision office is located, resulting in the mortgage right of the real estate, and the behavior of the property supervision office is unauthorized.
The second opinion is that the behavior of the production supervision office does not belong to the act of disposing of the property seized by the court without authorization. The reasons are: Ye Hui changed the advance notice registration of commercial housing to house transfer registration, and according to Article 68 of the Measures for House Registration, the advance notice registration of pre-purchased commercial housing was also changed to formal mortgage registration, which did not set new rights and did not affect the effectiveness of the court's seizure, and the property supervision department did not dispose of the property seized by the court without authorization.
On September 5, 20 13, Chong 'an District People's Court asked Wuxi Intermediate People's Court for instructions on two opinions in this case, and Wuxi Intermediate People's Court filed a case for acceptance. The collegial panel of Wuxi Intermediate People's Court made a reply (20 13) No.000 1 on October 28th, 2065438, agreeing with the second opinion of Chong 'an District People's Court, and holding that the basis of the court's pre-seizure in this case was the pre-registration of property. Before the seizure, the court can already foresee that the property will have a mortgage in the future. The Housing Management Office changed the mortgage advance notice registration to formal mortgage registration, and did not set new rights or rights burdens, which did not belong to the act of disposing of the property seized by the court without authorization. The first opinion of Chong 'an District People's Court does not conform to the original intention of the advance notice registration system and the pre-sealing system, which is not only unfavorable to the development of the pre-selling system of commercial housing, but also unfavorable to the future pre-sealing work of the court.