预购商品房抵押权预告登记制度研究

发布时间：2018-06-07 15:01

本文选题：预购商品房 + 抵押权　；参考：《宁波大学》2017年硕士论文

【摘要】：随着房地产市场的蓬勃发展,相关的金融创新越来越多,各种住房信贷业务也发展迅速。预购商品房抵押贷款更是让许多尚无力全款付清房款的购房者提前圆了住房梦。预购商品房抵押贷款是购房者与开发商签订商品房预售合同,在支付了首付款后,将预购的商品房抵押给银行,向银行申请贷款,由银行向开发商直接支付剩余房款的一种常见贷款类型。购房者与银行签订抵押贷款合同时,所购商品房还在建造过程中,只能办理抵押权预告登记,不可能办理出正式的抵押登记,等商品房建造完成,符合各项办证条件后才能转为正式的抵押登记。在办理正式的抵押权登记之前,如果购房者违约,银行一般会诉至法院,并要求就抵押房产变价后优先受偿,能否支持银行的这一诉求具有较大的争议,支持者有之,反对者亦有之。本文将对该制度当前存在的抵押权预告登记的优先受偿权争议、预告登记转正式登记操作不合理、预告登记与法院预查封登记存在冲突等问题进行分析,提出预告登记虽然不能直接赋予银行在司法程序中以正式抵押权,但是应通过规定预告登记的顺位保护效力,通过完善预购商品房抵押权预告登记流程,通过建立贷款保险等相应配套制度等,以更好的保护债权人、购房者等各方的利益。文章第一部分对预告登记的概念、性质、效力,以及抵押权的概念、性质,和抵押权预告登记的内容做了简要阐述,并特别说明在商品房预售语境下时各项制度已有新的特点,以作讨论的理论基础。文章第二部分提出了预购商品房抵押权预告登记制度当前存在的主要问题。首先是效力问题,当前司法实践中对预购商品房抵押权预告登记的效力存在不同的看法,让银行无所适从。其次,预告登记转为正式登记并不顺畅,申请主体、申请时间均存在问题。再次,预告登记制度与法院的预查封制度等存在冲突,何者具有更优先的顺位不明确。文章第三部是在分析问题的基础上提出一些完善建议,包括确认抵押权预告登记不产生优先受偿效力、补全预告登记效力、完善操作程序、建立贷款保险等配套制度等。
[Abstract]:With the booming development of real estate market, more and more related financial innovation, all kinds of housing credit business has also developed rapidly. The advance purchase of commercial housing mortgage loans to many who have not yet fully paid off the house buyers ahead of time to fulfill the housing dream. The mortgage loan for the purchase of commercial housing is a pre-sale contract between the buyer and the developer. After paying the down payment, the pre-purchased commercial house is mortgaged to the bank to apply for a loan from the bank. A common type of loan paid directly by banks to developers for remaining homes. When a house buyer signs a mortgage loan contract with the bank, the purchase of a commercial house is still in the process of being built, and can only be registered with the notice of mortgage right. It is not possible to go through formal mortgage registration, such as the completion of the construction of the commercial house. Only after meeting the requirements of each license can it be turned into a formal mortgage registration. Before applying for formal mortgage registration, if the buyer defaults, the bank will usually go to the court and ask for priority to be paid after the mortgage property has changed its price. Whether the claim can be supported by the bank is controversial, and supporters have it. There are also opponents. In this paper, the author analyzes the disputes existing in this system about the preemptive right of mortgage registration, the unreasonable operation of transferring notice registration to formal registration, the conflict between notice registration and court pre-closure registration, and so on. Although the advance notice registration can not directly endow the bank with formal mortgage in the judicial procedure, it should provide the order protection effect of the notice registration, and improve the advance purchase commercial house mortgage notice registration process. Through the establishment of loan insurance and other corresponding supporting system, in order to better protect the interests of creditors, buyers and other parties. The first part of the article briefly expounds the concept, nature, validity, the concept and nature of mortgage, and the content of notice registration of mortgage, and especially explains the new characteristics of various systems in the context of pre-sale of commercial housing. As a theoretical basis for discussion. The second part of the article puts forward the main problems existing in the advance-purchase commercial house mortgage notice registration system. First of all, there are different views on the effectiveness of pre-purchase mortgage registration in the current judicial practice, which makes banks at a loss. Secondly, notice registration into formal registration is not smooth, the main application, application time problems. Thirdly, there are conflicts between the advance registration system and the court's preemption system, and the order of priority is not clear. The third part of the article is based on the analysis of the problems put forward some suggestions, including confirming that the mortgage notice registration does not have the effect of priority repayment, making up the full notice registration effect, perfecting the operation procedure, establishing the loan insurance system and so on.
【学位授予单位】：宁波大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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