建立不动产让与担保制度

发布时间：2018-11-25 21:59

【摘要】：自上世纪九十年代以来，伴随着我国房地产经济的繁荣发展和住房政策的不断革新，我国南方沿海经济发达地区从香港引进了一种新型融资方式：“按揭贷款融资模式”。越来越多的人以“按揭贷款融资模式”来实现购买商品房的目的。我国内地“按揭”一词，虽然引自香港地区，表面看起来和英美法系按揭制度或者大陆法系让与担保制度都较为类似，但是实质不同。易言之，就担保制度而言时下开发商所称之“按揭”并非是英美法系中的按揭制度，名为“按揭”，实际上是不动产抵押。时下中国通过“按揭贷款融资模式”购房与通过“抵押贷款”购房不同的是，，担保制度以外的运作模式，而不是担保制度本身。抵押贷款往往只发生在贷款人与银行之间，商品房买卖中的“按揭贷款融资模式”却是发生在开发商、购房人（以下简称“业主”）、银行三者之间。简单地说，由开发商出售房屋给业主；由业主向银行贷款用以向开发商支付购房款；为担保还款先由开发商提供保证进行过渡性担保，当业主从开发商处获得房地产权后，将该房地产抵押给银行；一旦业主无力还贷银行则将抵押的商品房卖给开发商。上述购房、贷款、保证、抵押、抵押物的处置都事先经三方约定，统称为“按揭贷款融资模式”购房。该模式满足和保护了购房人、开发商与银行三方面的利益。大陆法系国家将单纯担保意义之“按揭”制度，称为“让与担保”制度。让与担保制度未被我国《物权法》所规制。我国大陆地区目前的“按揭贷款融资”的交易模式与现状，表明我国房地产市场对丰富融资手段地迫切需求。我国的经济生活中存在着对按揭或让与担保制度的强烈的客观需求。应当建立不动产让与担保制度。文章在在对香港地区和英美法系之按揭制度，大陆法系之让与担保制度进行简单介绍和说明后，分别对英美法系按揭、大陆法系让与担保以及我国大陆商品房抵押贷款加以对比，得出让与担保制度本身特性和存在意义，值得我们加以借鉴和参考。我国建立让与担保不仅必要，而且可行。让与担保制度是大陆法系判例法和学说在长期争议后发展而来的一项制度，先后经历了脱法嫌疑说、流押之嫌和通谋意思表示说的争论，最终被认可。我国民法和担保法领域应当进行一些大胆地突破和创新，在立法上明确规制商品房让与担保制度，从法律层面引导和规制房地市场的融资和交易向安全、便捷、灵活以及平衡的方向有序发展。
[Abstract]:Since the 1990s, with the booming development of real estate economy and the continuous innovation of housing policy, a new type of financing method, "Mortgage loan financing Mode", has been introduced from Hong Kong in the developed coastal areas of southern China. More and more people to "mortgage financing mode" to achieve the purpose of buying commercial housing. Although the term "mortgage" in the mainland of China is derived from Hong Kong, it appears to be similar to the mortgage system of Anglo-American law system or the assignment guarantee system of civil law system, but it is different in substance. In other words, as far as the guarantee system is concerned, what developers call "mortgage" is not the mortgage system in Anglo-American law system, it is called "mortgage", and in fact, it is real estate mortgage. At present, different from "mortgage financing mode" and "mortgage loan", the operation mode outside the guarantee system, not the guarantee system itself, is different in China. The mortgage loan often occurs between the lender and the bank, but the "mortgage loan financing mode" in the commercial housing transaction occurs between the developer, the house buyer (hereinafter referred to as "the owner") and the bank. To put it simply, the developer sells the house to the owner, the owner makes a loan to the bank to pay for the purchase of the house to the developer. In order to guarantee the repayment, the developer provides the guarantee to carry on the transitional guarantee, when the owner obtains the real estate right from the developer, the real estate is mortgaged to the bank; once the owner is unable to repay the loan bank, he sells the mortgaged commercial house to the developer. The above-mentioned purchase, loan, guarantee, mortgage disposal are agreed by the three parties, collectively known as "mortgage financing mode" purchase. The model meets and protects the interests of buyers, developers and banks. The "mortgage" system in the continental law system is called the "transferable guarantee" system. The system of assignment guarantee has not been regulated by the property Law of our country. The current transaction mode and present situation of "mortgage loan financing" in mainland China indicate that the real estate market of our country is in urgent need of enriching financing means. There is a strong objective demand for mortgage or transfer guarantee system in China's economic life. The system of guarantee for the transfer of immovable property shall be established. After a brief introduction and explanation of the mortgage system in Hong Kong and the common law system, and the transfer guarantee system in the civil law system, the article gives a brief introduction to the mortgage system in the common law system. By comparing the transfer guarantee of civil law system with the mortgage loan of commercial housing in mainland China, the author draws the conclusion that the system of transferable guarantee itself has its own characteristics and significance, which is worthy of our reference and reference. It is not only necessary, but also feasible to establish transferable guarantee in our country. The system of transferable guarantee is a system developed after a long dispute in the case law and doctrine of the civil law system. It has experienced the argument of the theory of disengaging from the law, the theory of disreliction of charge and the theory of conspiracy, and has finally been recognized. In the field of civil law and security law, we should make some bold breakthroughs and innovations, make clear the regulation of the guarantee system of the transfer of commercial housing in legislation, guide and regulate the financing and transaction of the real estate market from the legal level, and make it safe and convenient. Flexible and balanced development in an orderly direction.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923

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