二手房抵押若干法律问题研究
发布时间：2019-03-02 19:15
【摘要】：二手房抵押问题牵涉担保法律体系,而现行体系形成于市场经济的发展背景之下。改革开放之初,发展经济依循“搞活流通”的方针,相应的体现在民法体系中,重流转而轻归属,亦即：债权法律、合同法等规范财产流转关系的法律较早受到重视,而规范财产归属关系的法律未受到应有的重视,直接导致物权立法滞后。进入上世纪90年代后,我国社会生活中滋生严重的“三角债”问题,颇为棘手。这使得抵押问题成为学术界和实务界共为关注的焦点。可见,权利的实现情况纷繁复杂,尤其是二手房抵押所依赖的立法和司法现状存在诸多不足,这使得有针对性的提出完善的措施,从而促进市场交易的健全和相关权益的维护,是必要的。 涉及抵押的相关法律制定虽酌采市场经济发达国家,但因坚持土地不得私有化,致使土地所有权不得抵押,抵押权之客体仅可为土地使用权及其上的房屋,这是国内抵押制度的一大特色；加之三角债、银行呆帐等问题严重,致使抵押制度在立法上偏重于保护债权人,而不能统筹考量,均有碍于抵押权担保作用的发挥。我国《担保法》在实施过程中,出现了诸多疑难问题。对这些问题需要从理论与实践的角度进行深入的总结和研究。就我国目前的司法实践来看,对抵押的立法规定仍不免有疏漏之处,诸如不动产抵押证券化、重复抵押中的欺诈等问题,都是我们在研究抵押问题时不能忽略的。 从完善法律概念和充实司法实践的意义上,对二手房抵押问题进行体系研究和实践考量,更会发现制度理论与实践的发展亟待完善。在婚姻家庭方面,有关二手房抵押法律问题的法律法规,是相当健全和完善的,实务中由于当事人之间存在着特殊的关系,却频频成为法律纷争的缘起；而从集体土地使用权所存在的法律问题中,则可以清楚的看到,正是由于集体土地权利的界限不够清晰,深层次的导致了该用益物权为抵押时,权利时时得不到有效保障；由地下车库(位)相关法律问题引出的空间权等专题的探讨,是法律法规上较少涉及、因而在司法实践上更见两难。 鉴于目前频频存在的地方政府各自为战的细则规范方式损害了法律的透明度和人们的知情权,我们有必要以专门一章来为二手房抵押立法,更加精细的加以规范,来纾解当前纷争多有的现状。进而言之,应当由二手房抵押作为一个有力的突破口,充实和完善整个房地产法律体系,为中国统一房地产法的建立迈出坚实的一步。只有正确运用并把握抵押权,才能合乎法治建设的需要,从而我国市场经济发展的必然趋势。
[Abstract]:The issue of second-hand housing mortgage involves the legal system of security, and the current system is formed under the background of the development of market economy. At the beginning of the reform and opening-up, the development of economy followed the policy of "invigorating circulation", which was reflected in the civil law system, emphasizing circulation rather than belonging, that is, the law of creditor's rights, contract law and other laws regulating the transfer of property were paid more attention to earlier. However, the law regulating the ownership of property has not been paid much attention to, which directly leads to the lag of the legislation of real right. After entering the 90's of last century, the serious "triangle debt" problem in our country's social life is rather difficult. This makes mortgage problem become the focus of academic and practical circles. It can be seen that the realization of the right is complicated, especially the legislative and judicial status of the second-hand housing mortgage depends on a lot of deficiencies, which makes targeted to propose perfect measures to promote the integrity of market transactions and the maintenance of related rights and interests. It is necessary. Although the enactment of relevant laws concerning mortgage is discretionary in the developed countries of market economy, as a result of insisting that land should not be privatized, land ownership cannot be mortgaged, and the object of mortgage can only be the right to use the land and the houses on it, This is a major feature of the domestic mortgage system; In addition, due to the serious problems of triangular debt and bad bank debts, the mortgage system emphasizes on the protection of creditors in legislation, but can not be considered as a whole, which hinders the development of mortgage guarantee. In the process of implementation of China's guarantee Law, there are many difficult problems. These problems need to be summarized and studied from the perspective of theory and practice. As far as the current judicial practice of our country is concerned, there are still some shortcomings in the legislation of mortgage, such as securitization of real estate mortgage, fraud in repeated mortgage and so on, which can not be ignored when we study the problem of mortgage. From the meaning of perfecting the legal concept and enriching the judicial practice, the systematic research and practical consideration on the mortgage of second-hand house will find that the development of the theory and practice of the system needs to be perfected urgently. In the aspect of marriage and family, the laws and regulations on the second-hand house mortgage law are quite perfect and perfect. In practice, because of the special relationship between the parties, it has become the origin of the legal disputes frequently; From the legal problems of the collective land use right, we can clearly see that it is precisely because the boundary of the collective land right is not clear enough, the deep-seated causes the usufruct right as the mortgage, the right is not guaranteed effectively all the time; The discussion of space rights and other topics arising from the relevant legal issues of underground garage is less involved in laws and regulations, so it is more difficult in judicial practice. In view of the fact that the way in which the existing local governments are at odds with each other in their own rules and regulations has undermined the transparency of the law and people's right to know, it is necessary for us to adopt a special chapter to regulate the legislation on second-hand housing mortgage, and to regulate it more meticulously. To ease the current dispute many of the status quo. In other words, second-hand housing mortgage should be a powerful breakthrough to enrich and improve the whole real estate legal system, and take a solid step for the establishment of China's unified real estate law. Only by correctly applying and grasping the right of mortgage can we meet the needs of the construction of rule of law and thus the inevitable trend of the development of market economy in our country.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
本文编号：2433380
[Abstract]:The issue of second-hand housing mortgage involves the legal system of security, and the current system is formed under the background of the development of market economy. At the beginning of the reform and opening-up, the development of economy followed the policy of "invigorating circulation", which was reflected in the civil law system, emphasizing circulation rather than belonging, that is, the law of creditor's rights, contract law and other laws regulating the transfer of property were paid more attention to earlier. However, the law regulating the ownership of property has not been paid much attention to, which directly leads to the lag of the legislation of real right. After entering the 90's of last century, the serious "triangle debt" problem in our country's social life is rather difficult. This makes mortgage problem become the focus of academic and practical circles. It can be seen that the realization of the right is complicated, especially the legislative and judicial status of the second-hand housing mortgage depends on a lot of deficiencies, which makes targeted to propose perfect measures to promote the integrity of market transactions and the maintenance of related rights and interests. It is necessary. Although the enactment of relevant laws concerning mortgage is discretionary in the developed countries of market economy, as a result of insisting that land should not be privatized, land ownership cannot be mortgaged, and the object of mortgage can only be the right to use the land and the houses on it, This is a major feature of the domestic mortgage system; In addition, due to the serious problems of triangular debt and bad bank debts, the mortgage system emphasizes on the protection of creditors in legislation, but can not be considered as a whole, which hinders the development of mortgage guarantee. In the process of implementation of China's guarantee Law, there are many difficult problems. These problems need to be summarized and studied from the perspective of theory and practice. As far as the current judicial practice of our country is concerned, there are still some shortcomings in the legislation of mortgage, such as securitization of real estate mortgage, fraud in repeated mortgage and so on, which can not be ignored when we study the problem of mortgage. From the meaning of perfecting the legal concept and enriching the judicial practice, the systematic research and practical consideration on the mortgage of second-hand house will find that the development of the theory and practice of the system needs to be perfected urgently. In the aspect of marriage and family, the laws and regulations on the second-hand house mortgage law are quite perfect and perfect. In practice, because of the special relationship between the parties, it has become the origin of the legal disputes frequently; From the legal problems of the collective land use right, we can clearly see that it is precisely because the boundary of the collective land right is not clear enough, the deep-seated causes the usufruct right as the mortgage, the right is not guaranteed effectively all the time; The discussion of space rights and other topics arising from the relevant legal issues of underground garage is less involved in laws and regulations, so it is more difficult in judicial practice. In view of the fact that the way in which the existing local governments are at odds with each other in their own rules and regulations has undermined the transparency of the law and people's right to know, it is necessary for us to adopt a special chapter to regulate the legislation on second-hand housing mortgage, and to regulate it more meticulously. To ease the current dispute many of the status quo. In other words, second-hand housing mortgage should be a powerful breakthrough to enrich and improve the whole real estate legal system, and take a solid step for the establishment of China's unified real estate law. Only by correctly applying and grasping the right of mortgage can we meet the needs of the construction of rule of law and thus the inevitable trend of the development of market economy in our country.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
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