[abstract] in accordance with the commercial banking law and related laws and regulations, commercial Banks in the process of undertaking credit operations, in order to ensure that the loan is withdrawn on time, generally require the borrower to provide the guarantee. In practice, the most common way of bank loan guarantee is mortgage and pledge, which is most typical of real estate mortgage and power pledge. This paper intends to analyze the related legal issues in the mortgage and rights pledge loan from the Angle of protecting bank claims and guarding against financial risks. Under the commercial banking law and related laws and regulations, commercial Banks in the process of undertaking credit operations, in order to ensure that loans are withdrawn on time, generally require the borrower to provide security. In practice, the most common way of bank loan guarantee is mortgage and pledge, which is most typical of real estate mortgage and power pledge. This paper intends to analyze the related legal issues in the mortgage and rights pledge loan from the Angle of protecting bank claims and guarding against financial risks.

The relevant issues that should be paid attention to in the practice of real estate mortgage

Real estate mortgage is one of the most commonly used guarantee methods in the mortgage business. In recent years, with the rapid development of China's real estate industry, financial services, real estate mortgage guarantee system introduced housing mortgage mortgage, projects under construction options such as new concept of real estate mortgage mechanism is playing an increasingly important role in financial loans. But at the same time, there are a series of practical problems related to real estate mortgage.

(1) problems existing in real estate mortgage registration.

1. After the mortgage has been established, the loan contract has been changed, and the mortgage registration has not been reprocessed, resulting in the invalidation of the mortgage guarantee. Under the guarantee law, real estate mortgage must be registered. Every mortgage registration is for a specific relationship of creditor's rights debt, even if the creditor and the debtor remains unchanged, if the content of the debt, debt guarantees before cannot replace after debt guarantees, unless otherwise agreed by the parties, such as mortgage of maximum amount guarantee is a special case. In the loan guaranty, if the loan contract changes, the mortgage registration must be reprocessed, otherwise the mortgage contract will not take effect and the bank's creditor's rights will not be guaranteed. There is a case in which a trading company loans rmb5m to a bank, which is provided by a third party real estate company to provide real estate guarantee to the bank, and a mortgage registration is made to the registration authority. Half a year later, the trading company and the bank used the outstanding amount of the original loan contract as the new loan, and signed the loan contract of 4 million yuan, which terminated the original contract. The original guaranty unit real estate company although with the bank the mortgage contract that the form, but did not agree specific property in this contract, also did not register with this mortgage contract. The loan matured trading company cannot repay the loan, the bank sues the court to ask the real estate company to assume the responsibility of guaranty. Bank in the case that real estate company for trading company the mortgage real estate mortgage has been registered, although loan contract again, but with the loan, the mortgagor shall continue to mortgage guarantee responsibility. However, one of the important characteristics of the mortgage is the subordination of the property, and the mortgage must exist from the specific creditor's rights. The previous loan contract terminates and the corresponding mortgage rights are eliminated. After borrowing relationship of (amount, repayment period are different from before) would be separately set in accordance with the law, mortgage contract have not been registered and cannot take effect in this case, the liability for guaranteeing the Banks don't shall be investigated for real estate company. In addition, it should be seen that the mortgage contract changed in this case has no specific collateral, so even if registered, the mortgage still cannot be established. To this, the supreme people's court on some issues of applicable < security law > interpretation (hereinafter referred to as the "explanation") the first paragraph of article 56 of specific provision: mortgage contract is for the types of the principal claim secured, the mortgaged property without prescribed or unknown, according to the main contract and mortgage contract cannot be corrected or cannot be presumed, mortgage.

2. After the mortgage registration, the mortgagor will dispose of the mortgaged property without authorization, damaging the mortgagee and the interests of others. The mortgagor is not transfer the mortgaged property during the mortgage possession, do not lose the ownership of the mortgaged property, thus has right of legal sanctions, including to set usufructuary right, the right to lease or transfer the mortgaged property, but the punishment is the premise of not affect the mortgagee shall exercise the mortgage right, the mortgagor shall notify the mortgagee and inform the transferee that the transferred property mortgaged, the mortgagor fails to notify the mortgagee or inform the transferee, transfer shall be void. Explain further clear: during the duration of the mortgage mortgage is transfer of the mortgaged property or fails to notify the mortgagee fails to notify the transferee, if the mortgaged property has been registered, may still exercise the right of mortgage of the mortgagee; The assignee who gains the ownership of the mortgaged property may pay off all his debts in lieu of the obligor to eliminate the mortgage. The assignee may recover the debts from the mortgagor. On the setting of the lease relationship after the real estate mortgage, the guarantee method is not specified. In the interpretation, it is clear that the mortgagor leases the mortgaged property and the lease contract is not binding upon the transferee.

3. Repeat the mortgage and repeat the registration, resulting in the guarantee of secured claims. In order to make the real estate as much as possible, the law allows the mortgagee to set several mortgage rights on the same property. The pecking order of several mortgage rights shall be determined in the order of registration. However, the premise of remortgaging is that the residual value of the mortgaged property is greater than the creditor's right that is guaranteed again, which is the value of the mortgaged property, otherwise it violates the principle of the exclusivity of the property right. However, in reality there is no standard for property valuation, value and mortgage rates due to the changes in market, and the mortgagee shall also not complete knowledge of the situation of the mortgage relations before and the residual value of the property, the mortgage registration authority is usually only from a purely formal review recorded in the value of the mortgaged property. In the case that the creditor's rights exceed the actual value of the mortgage, multiple mortgages often form the DE facto double mortgage, which is difficult to realize.

(2) problems of real estate collateral. There are many kinds of real estate, each kind of real estate has its particularity because of its different legal relationship, not all the real estate can be mortgaged as collateral. According to "security law" and "explanation", "urban real estate management law", "city real estate mortgage management method" regulation, the following real estate cannot mortgage: used in education, medical treatment, municipal and other public welfare undertakings of the real estate (such as schools, kindergartens and hospitals established for purposes of public welfare institution, society, with its education facilities, medical and health care facilities and other public facilities outside the mortgages property for its own debt, can be deemed to be valid); Buildings listed in the protection of cultural relics and other buildings with important significance: the property in the scope of demolition has been announced in accordance with the law; To be seized, detained, regulated or otherwise restricted by the judicial organs or administrative organs in accordance with the law; Property right relations of real estate (to have not deal with property ownership certificate, in the court of first instance before the end of the debate can provide certificate of rights or register formalities fill do, can maintain effective mortgage); Property in dispute over property; If there is a common real estate that is not secured by all co-owners in writing (in the case of a co-owner who is mortgaged in the share of his common property, the mortgage is valid); Illegally constructed buildings or buildings without the approval of state planning departments and construction departments; No rural collective land (excluding barren hills, waste valleys, barren hills, barren beaches, etc.) without above-ground buildings. For the above property that cannot be used as collateral, even if the mortgage parties have signed the mortgage contract, they can not understand the mortgage registration procedures; Even if the mortgage is registered, the mortgage contract is invalid.

(3) limitation of action of mortgage term and mortgage right. When handling the mortgage bank, and agreed by the parties to the mortgage term, sometimes also some registration authority for mortgage term, so, the contract or require registration of the effectiveness of the guarantee period? According to the theory of civil law in mortgage relations, there are two contracts, namely the loan contract and mortgage contract, the loan contract is the main contract and mortgage contract from the contract and mortgage contract is attached to the loan contract, loan contract exists, there is also a the mortgage contract, loan contract are destroyed, the mortgage contract has been destroyed. Therefore, the mortgage contract does not exist independent of the term of the loan contract, whether the parties agree or the registration authority requires that the registration period does not have legal effect. "Security law" there is no clear regulation about it, but its stipulated in article 12 "claims secured mortgage right and its existence at the same time, the creditor's right, the mortgage also eliminate" can illustrate this point. The "interpretation" of the supreme people's court makes it clear that the existence of the right of guarantee shall not be legally binding in the period when the parties agree or the registration department requires the registration of the guarantee. The statute of limitations on the mortgage, "security law" is not clearly, "explain" regulation: the real rights for security of debt secured after the statute of limitations, hypothec person within two years after the end of the statute of limitations to exercise the real rights for security, the people's court shall support.

(4) second mortgage and repeat mortgage. The second mortgage refers to the right of the owner to mortgage the right to the use of the land, after the development of the construction, and mortgaged the above-ground buildings. Since the land mortgage does not include the value of the above-ground buildings, the second mortgage, the mortgage of the above-ground buildings, should be allowed. And double mortgage, although the two mortgage holders are different, but the value of the mortgage is the same, that is to repeat. This poses a great risk to the mortgagee, which is not legally permissible. According to the property law system of our country, the land use right mortgage is mortgaged and the ground buildings are mortgaged simultaneously; If a house is mortgaged, its lawful possession of the right to use the land is mortgaged accordingly. In the second mortgage, when the first mortgage, the building of the ground belongs to the mortgage of the newly added, so it is not the object of the mortgage. But in the second mortgage, according to the law, the land use right should be mortgaged with the building, then the land use right "repeat" mortgage. So is this a case of double mortgage, or is there a conflict between the two mortgages? I don't think this is a double mortgage. As mentioned above, repetitive mortgage refers to the mortgages to the same value of collateral, and in the secondary mortgage, although in the building mortgage is set, the land use right should be a mortgagor, due to the land use right has been first mortgage, after takes precedence over the mortgage established by the mortgage established for the effectiveness of the land use right after and on the land use right mortgage value only the balance of the section, this repeated the same value of the mortgaged property with mortgage is different.

(5) mortgage problems under construction. Mortgage about projects under construction, "security law" for regulation, the explanation is clear: to approved in accordance with the law has not yet been built or are building houses or other buildings in the mortgage, party intends to register the mortgaged property, the people's court of the mortgage can be deemed as valid. According to the method of urban real estate mortgage management, construction of construction mortgages must meet the following conditions: the mortgagor is the principal debtor; The creditor's rights are the financial institutions with the right of loan. The types of principal claims are loans; Secured loans must be used to continue construction of projects under construction; The mortgagor has legally acquired the right to use the land under construction, and the right to the right to use the land shall be mortgaged together with the investment assets under construction.

Other issues concerning the pledge of other rights

The pledge of rights is another kind of guarantee commonly used in bank loans. Here are two main issues:

(I) issue of pledge of real estate right. The guarantee law specifies that there are three types of rights that can be pledged: the creditor's rights, including bills, bonds, certificates of deposit, warehouse receipt, and bill of lading. Stake in class; Intellectual property rights. In addition, in addition to the flexible provisions of item (4) in the legislative technology, it is shown that in addition to the three categories of rights that can be pledged, there are "other rights that can be pledged according to law". What rights do other rights include? Security law is not clear, but a practice existing in highway toll collection pledged for highway construction loan, the borrower to charging rights pledge, highway toll basic settlement door should be open in the loan bank, all fees should be remitted to the door, in the loan period, the balance of this account should keep enough to pay the interest, enter the repayment period, should be enough to pay the balance of payments for each; The borrower's use of the funds within the account shall be approved by the loan bank. If the borrower defaults, the loan bank may directly exercise the charging interest until the loan is paid off. As a pledge of charging rights, it not only solves the problem of loan guarantee, but also solves the source of the repayment of capital and interest funds. Therefore, the loan risk is small, the interest rate is high and the benefits are obvious. To this, the judicial explanation to the affirmation, security law "interpretation" regulation: such as highway Bridges, road tunnels and road ferries real estate usufruct pledged, in accordance with the security law the provisions of item (4) of article seventy-five of the processing. This clearly stipulates that the right of realty profit can be the subject matter of pledge. The right to gain is like the three rights mentioned above, which have three legal characteristics: first, both are property rights, and have economic value, that is, they can be valued in currency. Second, both are appropriate property rights. Third, all are the property rights that may be given out. To sum up, it is feasible in practice to set pledge in real estate profit right, and there is also legal basis in theory.

(2) whether the transfer of a bill of exchange can set a pledge. According to the provisions of the negotiable instruments law, there are two cases of the prohibition of the transfer of negotiable instruments, namely the prohibition of the transfer of the ticket and the prohibition of the indorsement. The issuer of the transfer record, its intention is prohibited transfer paper, in the creation of paper is cut off at the beginning of bill circulation, the holder is the only beneficiary, and later take the rights on a negotiable instrument shall not be exercised in accordance with the endorsed transferred to others. The endorser of the transfer record, its intention is banned it by endorsement, the subsequent to the turn of the endorser, responsible only to its direct cause, the law is not determined by the endorser to an endorsement of any transfer shall be void. So, there a drawer writes "non - negotiable" of liquidity of the draft, if in this draft out, once the bank creditor's rights can not get pay off when you need to implement right, bill will be held by the defense and cannot honour, the right is not possible, so the bank can't accept this forbidden turn the draft as the subject matter of a pledge. And the endorser has banned recorded in the notes, the endorser of the transfer record, and can not influence the liquidity of the whole paper, just happened to in addition to its direct endorser's other successful does not guarantee the effectiveness of the responsibility of payment for the instrument, so the endorser made the turned record instrument is still negotiable, as the pledge of rights pledge is effective.