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The priority of repayment in the registration of mortgage ad
TIME：2021-10-27 PUBLISHER：ADMIN
2021 Zhang Baixuan, a trainee lawyer at Henan Changhao Law Firm, gave a thematic sharing session on the priority of repayment for registration of mortgage preannouncement on October 24.
This sharing mainly from the concept and nature of mortgage advance notice registration, the new provisions of the Civil Code Era, the application of judicial practice to do a legal analysis.
一、The concept and nature of mortgage advance notice registration
Pre-registration of mortgage right, also called pre-mortgage, means that the mortgagor and the creditor sign a contract to set up the mortgage right, but because they do not have the conditions to register the mortgage right, the two parties agree on the form of pre-registration of mortgage right, to ensure that creditors in the future conditions can obtain the right to mortgage.
The right of mortgage established after the registration of mortgage has the dominance and exclusiveness of real right, which is a legal real right and has the effect of real right, of which the priority for repayment is the core and essence. However, the registration of mortgage notice does not lead to the establishment or change of real right of real estate, but only enables the registration applicant to obtain a kind of right to request the change of real right in the future, which can fight against any third party, but is not in essence a right of domination, it is still a right of claim and does not lead to the establishment of real right.
二、The new rules of the code
Article fifty-two, paragraph 1, of the interpretation of the security system of the Civil Code of the People’s Republic of China (hereinafter referred to as the interpretation of the security system) provides that after the party concerned has registered a notice of mortgage, the notice announcing the registration right holder’s claim for priority in repayment of the mortgaged property, having examined the situations where the first registration of the ownership of a building has not been completed, where the property registered in advance is not in conformity with the property at the time of the first registration of the ownership of the building, and where the registration of the mortgage advance notice has become invalid, if the first registration of the ownership of the building has been completed after examination and there are no circumstances such as invalidation of the advance registration, the People’s Court shall support the People’s Court, and shall determine that the mortgage right shall be established as of the date of the registration of the notice.
（一）Emphasis on first registration of ownership
The so-called first registration of building ownership refers to the first registration of building ownership (commonly known as “Big production certificate”) by a real estate development enterprise after the completion and acceptance of a building, not Refer to the Mortgagor from the real estate development enterprise to obtain the building ownership and for the first registration (commonly known as the “Small production certificate”) . The first registration of ownership is very important, and the first registration of ownership is the basis of the change from advance registration of mortgage to registration of mortgage.
（二）What conditions are met for mortgage registration?
In the opinion of the Supreme Court, the People’s Court shall, in examining whether the holder of the notice is qualified to register a mortgage, examine: 1. Whether the building has been first registered; 2. Whether the property registered in advance is consistent with the property first registered in the ownership of the building; 3. Whether the registration of mortgage notice has already lapsed. When the above conditions are met at the same time, it may be deemed that the conditions for mortgage registration are met.
（三）If the party concerned fails to apply for registration within 90 days from the date of being able to register the mortgage, the pre-registration shall become invalid. “Since can undertake mortgage to register”when calculate from?
In accordance with Article 221, paragraph 1, of the Civil Code, is it necessary for the right holder to apply for mortgage registration within 90 days from the date of the first registration of the building? Otherwise notice registration is invalid? The Supreme Court that: The so-called Real Estate Registration, that is, the conditions for mortgage registration. In practice, only the real estate development enterprise knows if it can register the mortgage, but the Mortgagor or the obligee may not know. Therefore, in determining the invalidity of the advance notice registration, the 90-day threshold shall be the date on which the Mortgagor or the obligee knew or ought to have known that the registration of the mortgage could be made, the date on which the conditions for this registration are objectively met shall not be taken as the starting point for the calculation.
三、On the application of judicial practice
For cases where a loan guarantee contract was signed and a mortgage advance notice was registered before 20211, and the bank sued before 20211 for default by the borrower, and the case has not yet been concluded, or the case has been sued after 20211, can a bank assert a prior claim under Article fifty-two, paragraph 1, of the interpretation of the guarantee system? The issue essentially relates to the provisions of the Supreme People’s Court on the application of time effect. Different courts have different opinions on this. Most courts will apply the relevant provisions of the interpretation of the security system according to the principles of “Continuity of legal facts”and “Favorable retroactivity”. Pre-purchase commercial housing mortgage pre-announcement registration system plays an important role in the pre-sale of commercial housing, denying its priority effect is equivalent to denying the pre-purchase commercial housing mortgage registration system itself, would create a serious imbalance between the interests of the parties. Acknowledging that the registration of the advance notice of the mortgage of pre-purchased commercial housing has priority effect and can better coordinate the interests of the parties involved in the system of pre-sold commercial housing, and better clarity of the developer’s phase guarantee responsibility and simplify the legal relationship between the parties.
This sharing mainly from the concept and nature of mortgage advance notice registration, the new provisions of the Civil Code Era, the application of judicial practice to do a legal analysis.
一、The concept and nature of mortgage advance notice registration
Pre-registration of mortgage right, also called pre-mortgage, means that the mortgagor and the creditor sign a contract to set up the mortgage right, but because they do not have the conditions to register the mortgage right, the two parties agree on the form of pre-registration of mortgage right, to ensure that creditors in the future conditions can obtain the right to mortgage.
The right of mortgage established after the registration of mortgage has the dominance and exclusiveness of real right, which is a legal real right and has the effect of real right, of which the priority for repayment is the core and essence. However, the registration of mortgage notice does not lead to the establishment or change of real right of real estate, but only enables the registration applicant to obtain a kind of right to request the change of real right in the future, which can fight against any third party, but is not in essence a right of domination, it is still a right of claim and does not lead to the establishment of real right.
二、The new rules of the code
Article fifty-two, paragraph 1, of the interpretation of the security system of the Civil Code of the People’s Republic of China (hereinafter referred to as the interpretation of the security system) provides that after the party concerned has registered a notice of mortgage, the notice announcing the registration right holder’s claim for priority in repayment of the mortgaged property, having examined the situations where the first registration of the ownership of a building has not been completed, where the property registered in advance is not in conformity with the property at the time of the first registration of the ownership of the building, and where the registration of the mortgage advance notice has become invalid, if the first registration of the ownership of the building has been completed after examination and there are no circumstances such as invalidation of the advance registration, the People’s Court shall support the People’s Court, and shall determine that the mortgage right shall be established as of the date of the registration of the notice.
（一）Emphasis on first registration of ownership
The so-called first registration of building ownership refers to the first registration of building ownership (commonly known as “Big production certificate”) by a real estate development enterprise after the completion and acceptance of a building, not Refer to the Mortgagor from the real estate development enterprise to obtain the building ownership and for the first registration (commonly known as the “Small production certificate”) . The first registration of ownership is very important, and the first registration of ownership is the basis of the change from advance registration of mortgage to registration of mortgage.
（二）What conditions are met for mortgage registration?
In the opinion of the Supreme Court, the People’s Court shall, in examining whether the holder of the notice is qualified to register a mortgage, examine: 1. Whether the building has been first registered; 2. Whether the property registered in advance is consistent with the property first registered in the ownership of the building; 3. Whether the registration of mortgage notice has already lapsed. When the above conditions are met at the same time, it may be deemed that the conditions for mortgage registration are met.
（三）If the party concerned fails to apply for registration within 90 days from the date of being able to register the mortgage, the pre-registration shall become invalid. “Since can undertake mortgage to register”when calculate from?
In accordance with Article 221, paragraph 1, of the Civil Code, is it necessary for the right holder to apply for mortgage registration within 90 days from the date of the first registration of the building? Otherwise notice registration is invalid? The Supreme Court that: The so-called Real Estate Registration, that is, the conditions for mortgage registration. In practice, only the real estate development enterprise knows if it can register the mortgage, but the Mortgagor or the obligee may not know. Therefore, in determining the invalidity of the advance notice registration, the 90-day threshold shall be the date on which the Mortgagor or the obligee knew or ought to have known that the registration of the mortgage could be made, the date on which the conditions for this registration are objectively met shall not be taken as the starting point for the calculation.
三、On the application of judicial practice
For cases where a loan guarantee contract was signed and a mortgage advance notice was registered before 20211, and the bank sued before 20211 for default by the borrower, and the case has not yet been concluded, or the case has been sued after 20211, can a bank assert a prior claim under Article fifty-two, paragraph 1, of the interpretation of the guarantee system? The issue essentially relates to the provisions of the Supreme People’s Court on the application of time effect. Different courts have different opinions on this. Most courts will apply the relevant provisions of the interpretation of the security system according to the principles of “Continuity of legal facts”and “Favorable retroactivity”. Pre-purchase commercial housing mortgage pre-announcement registration system plays an important role in the pre-sale of commercial housing, denying its priority effect is equivalent to denying the pre-purchase commercial housing mortgage registration system itself, would create a serious imbalance between the interests of the parties. Acknowledging that the registration of the advance notice of the mortgage of pre-purchased commercial housing has priority effect and can better coordinate the interests of the parties involved in the system of pre-sold commercial housing, and better clarity of the developer’s phase guarantee responsibility and simplify the legal relationship between the parties.
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