First of all, about the nature of extension
With regard to the nature of extended loans, according to the Supreme People's Court [2000]No. 12 "Reply on the Effectiveness of Extended Loans Exceeding the Original Loan Term", extended loans are essentially changes to the original loan contract term. According to China's laws and regulations, loans are allowed to be extended. As long as the extended loan contract is the true intention of both parties on the basis of equality and voluntariness, and does not violate the prohibitive provisions of laws and administrative regulations, it shall be deemed as valid. 1
2. When the mortgage loan of real estate is extended, with the consent of the mortgagor, does the original mortgage still exist, and is it necessary to re-register the mortgage?
Article 187, paragraph 1 of the Property Law stipulates: "If the property specified in Items 1 to 3 of the first paragraph of Article 180 of this Law or the building under construction specified in Item 5 is mortgaged, the mortgage registration shall be handled. The mortgage is established at the time of registration. " According to the general principle of loans, the extension is only to extend the repayment period of the original loan contract, not to add new loans. Therefore, there are different opinions on the extension of real estate mortgage loan, whether the original mortgage right exists after the extension, and whether it is necessary to apply for mortgage registration again. Generally, there are the following situations:
(1) After the mortgagor agrees to the extension, the mortgage right still exists, and it is unnecessary to apply for mortgage registration repeatedly.
(1) If the mortgage contract clearly stipulates that the extension does not require the consent of the mortgagor, the mortgage right will continue to exist after the extension, and there is no need to apply for mortgage registration again.
In order to ensure the realization of creditor's rights and avoid the mortgagor's exemption, banks often explicitly stipulate in the mortgage contract that the mortgagor should still bear the mortgage guarantee responsibility without obtaining the consent of the mortgagor to change the contents of the main contract agreement or extend the loan term. Then, after the extension of the bank, the mortgage contract was signed on the voluntary basis of both parties, and it is still valid. There is no legal reason for the disappearance of the security interest. The mortgage right still exists from the date of establishment, and there is no need to repeat mortgage registration.
(2) When handling the extension, the mortgagor agrees to undertake the mortgage guarantee responsibility for the creditor's rights after the extension, and the mortgage right continues to exist, so it is unnecessary to handle the mortgage registration again.
Article 12 of the General Principles of Loans stipulates that "... when applying for the extension of secured loans, mortgage loans and pledged loans, the guarantor, mortgagor and pledger shall also issue written consent certificates. Therefore, when handling the extension, even if the mortgage contract clearly stipulates that the extension does not require the consent of the mortgagor, the bank will require the mortgagor to sign a guarantor in the extension agreement to continue to assume the mortgage guarantee responsibility for the extended creditor's rights. However, the extension does not create a new creditor-debtor relationship. In the case that the mortgage has been established and extended, there is no need to go through the change registration again, and the original mortgage continues to exist and be effective.
Reference case 1:
Haifeng county axianu clothing co., ltd v Haifeng county rural credit cooperative fair credit cooperative (dispute over financial loan contract)
Case number: (20 17) Guangdong 15 Minzhong 102.
Trial Chamber: Shanwei Intermediate People's Court of Guangdong Province.
The court of second instance held that in this case, the two parties signed a loan and mortgage contract, registered the mortgage, and the mortgage right was established according to law. After the loan expires, an extension agreement is signed, stipulating that "the rights and obligations between the lender, the borrower and the guarantor and related matters shall still be implemented according to the original contract." In this regard, Aseno, as the guarantor, stamped the extension agreement to confirm that it would continue to provide mortgage. The intention of both parties to conclude a contract, guarantee, renewal and renewal is true, does not violate laws and regulations, is legal and valid, and shall be performed in accordance with the contract. As the mortgagor, Aseno agreed to continue to provide mortgage according to the original contract, but the important matters related to mortgage, such as the right holder, right type and right scope, have not changed. In the case that the mortgage has been established and extended, there is no need to go through the change registration again. Moreover, mortgage belongs to security interest, and its creation, alteration and elimination are regulated by property law. According to the provisions of China's Property Law, the elimination of security interest includes: the elimination of principal creditor's rights, the realization of security interest, the creditor's abandonment of security interest and other circumstances stipulated by law. In this case, there is no legal reason for the disappearance of the above security interest, and the mortgage involved still exists from the date of establishment. According to Article 202 of the Property Law of People's Republic of China (PRC), the mortgagee shall exercise the right of mortgage during the limitation of action for principal creditor's rights; If it does not exercise, the people's court will not protect it. Fair credit cooperatives exercise the mortgage right during the limitation period of creditor's rights litigation, which has factual and legal basis and should be supported. We don't support the claim that Aseno Company failed to register the change of mortgage right after the extension, which led to the elimination of mortgage right.
Summary: In this case, the mortgagor agreed to continue to provide mortgage guarantee for the extended creditor's rights, and there was no legal reason for the disappearance of the security right in this case. Therefore, the mortgage right still exists from the date of establishment.
Reference case 2:
Appellant Yang Shouguo and Appellee Jiayin Rural Credit Cooperative Association (case of second instance).
Case number: (20 14) Shang Yi Zhongzi No. 16
Trial Chamber: Yichun Intermediate People's Court of Heilongjiang Province.
The court of first instance held that there are several ways to eliminate the mortgage right: through realization, through the abandonment of the mortgagee, and through the invalidation of the mortgage contract. In this case, the original defendant and the defendant have no objection to the legality and validity of the mortgage guarantee contract signed by both parties. There is no situation that the security interest is extinguished because the mortgage contract is invalid, the debt guaranteed by the security interest is still being performed, and the creditor's rights are not fully realized. The mortgagee does not agree to give up the mortgage, that is, the mortgage has not been eliminated. The extension of the loan has also been confirmed by the plaintiff, which does not increase the guarantor's obligations. In addition, the debtor of the main contract is still fulfilling the obligation of debt settlement, and there is no case that the limitation period expires. Therefore, the plaintiff's claim for canceling the mortgage has no factual and legal basis, and this court will not support it.
The court of second instance held that the original judgment was upheld.
Summary: In this case, when the extension was handled, the guarantor signed and agreed to continue the guarantee. There was no legal reason for the disappearance of the mortgage, so the mortgage was still legal and effective.
(2) Although the extension is agreed by the mortgagor, the mortgage right is invalid because the mortgage registration has not been re-registered.
Reference case 1:
Linfen Branch of Industrial Bank Co., Ltd. v. Linfen Jiulongshan Ecological Park Co., Ltd.
Case number: (20 17) Jin 1002 No.4439 in the early Republic of China.
Court of first instance: Yaodu District People's Court, Linfen City, Shanxi Province.
The court of first instance held that after the loan expired, the defendant Linfen Jiulongshan Park failed to repay the plaintiff's loan as scheduled to extend the loan period. The defendant Linfen Jiulongshan Park mortgaged all the temporary house ownership certificates (01110000008) and Yao Guoyong (90 12) No.2013 to the plaintiff, which was under the extended loan. The defendant secured the loan with his real estate and land, and the mortgage may not be against a third party because both parties have not gone through the mortgage registration formalities.
Summary: In this case, although the creditor signed a mortgage contract with the mortgagor during the extension period, the existing mortgage was not registered again, and the mortgage was invalid.
3. When handling the extension, is the mortgage still valid without the consent of the mortgagor?
(1) When handling the extension, although the mortgagor did not agree, the mortgage still exists because the extension is not a legal situation in which the mortgage is extinguished.
Article 52 of the Guarantee Law of People's Republic of China (PRC) stipulates that the mortgage right coexists with the secured creditor's right, and if the creditor's right disappears, the mortgage right will also disappear. The extension is only an extension of the repayment period of the original loan contract, not a new loan, and the creditor's rights have not been eliminated, so the mortgage right has not been eliminated. The mortgagor still needs to bear the mortgage guarantee responsibility for the extended creditor's rights.
Reference case 1:
Liu and Zhang Wenlian v. Chuxiong Longsheng Microfinance Co., Ltd.
Case number: (20 17) Yun23 Minzhong 1007
Trial Chamber: Wei Chu Intermediate People's Court.
The court of second instance held that Liu and Zhang Wenlian volunteered to provide guarantee for He Jianli's loan, signed a mortgage contract with Longsheng Company, and went through the mortgage registration formalities according to law, so Liu and Zhang Wenlian should bear the responsibility of mortgage guarantee. After the extension of the loan contract in this case, the loan contract as the principal creditor's right still exists, and the extension of the loan contract does not belong to the legal situation of the extinction of mortgage. Liu and Zhang Wenlian should continue to bear the mortgage guarantee responsibility.
Summary: In this case, the loan contract as the principal creditor's right still exists, and the extension of the loan contract does not belong to the legal situation of the extinction of mortgage right, and the mortgage right still exists.
4. During the validity of the principal creditor's rights, the mortgage period registered by the registration department expires. Does the mortgage exist?
(1) During the validity of the principal creditor's rights, the mortgage registered by the registration department expires, and the mortgage still exists, which is not affected by the registration period.
Paragraph 12 of the Supreme People's Court's Interpretation on Some Issues Concerning the Guarantee Law of People's Republic of China (PRC): "The guarantee period agreed by the parties or required by the registration department is not legally binding on the existence of the security interest", and Article 202 of the People's Republic of China (PRC) Property Law "The mortgagee exercises the mortgage right during the period when the principal creditor's rights are restricted; If it is not exercised, the people's court will not protect it. " Accordingly, neither the mortgage period agreed by both parties nor the mortgage period registered by the registration authority is legally binding because it violates the statutory principle of real right. That is to say, the agreed and registered mortgage period is invalid, and the mortgage exercise period is consistent with the limitation period of the principal creditor's rights.
Reference case 1:
Liu Jianchang v Gutian Cemetery and Deng Xianlian in Xinning County.
Case number: (20 17) Xiang 05 Minzhong 1766.
Trial Chamber: Shaoyang Intermediate People's Court, Hunan Province.
The court of second instance held that although the guarantee period registered by the registration department at the time of mortgage registration was one year, according to the first paragraph of Article 12 of the Supreme People's Court's Interpretation on Several Issues concerning the Guarantee Law of People's Republic of China (PRC), "the guarantee period agreed by the parties or required by the registration department is not legally binding on the existence of the security interest", the registration department set a guarantee period of one year for the collateral in this case. The loan term stipulated in the loan contract signed by Liu Jianchang and Deng Sulian is two months. However, after the loan term expired, the borrower and the borrower signed a loan extension contract on July 1 2065438. Although the extension contract is flawed, it can prove that Liu Jianchang claimed the right to Deng Sulian after the loan expired, which is in line with the interruption of the statute of limitations. On October 26th, 2065438+2007/KLOC-0, Liu Jianchang also sent a reminder letter to Deng Xianlian and Tang Luping, and Deng Xianlian signed the reminder letter, which proved that the statute of limitations for the principal debt in this case did not exceed the period stipulated by law. Then, in this case, the mortgagee Liu Jianchang still has the right to exercise the mortgage on the collateral provided by Gutian Cemetery in Xinning County because the statute of limitations of the principal debt has not exceeded the period prescribed by law.
Summary: In this case, although the guarantee period registered at the time of mortgage registration is one year, the mortgage still exists because the statute of limitations of the principal debt has not exceeded the period stipulated by law.