二手房抵押若干法律問題研究
發(fā)布時間：2019-03-02 19:15
【摘要】：二手房抵押問題牽涉擔(dān)保法律體系,而現(xiàn)行體系形成于市場經(jīng)濟(jì)的發(fā)展背景之下。改革開放之初,發(fā)展經(jīng)濟(jì)依循“搞活流通”的方針,相應(yīng)的體現(xiàn)在民法體系中,重流轉(zhuǎn)而輕歸屬,亦即：債權(quán)法律、合同法等規(guī)范財產(chǎn)流轉(zhuǎn)關(guān)系的法律較早受到重視,而規(guī)范財產(chǎn)歸屬關(guān)系的法律未受到應(yīng)有的重視,直接導(dǎo)致物權(quán)立法滯后。進(jìn)入上世紀(jì)90年代后,我國社會生活中滋生嚴(yán)重的“三角債”問題,頗為棘手。這使得抵押問題成為學(xué)術(shù)界和實務(wù)界共為關(guān)注的焦點。可見,權(quán)利的實現(xiàn)情況紛繁復(fù)雜,尤其是二手房抵押所依賴的立法和司法現(xiàn)狀存在諸多不足,這使得有針對性的提出完善的措施,從而促進(jìn)市場交易的健全和相關(guān)權(quán)益的維護(hù),是必要的。 涉及抵押的相關(guān)法律制定雖酌采市場經(jīng)濟(jì)發(fā)達(dá)國家,但因堅持土地不得私有化,致使土地所有權(quán)不得抵押,抵押權(quán)之客體僅可為土地使用權(quán)及其上的房屋,這是國內(nèi)抵押制度的一大特色；加之三角債、銀行呆帳等問題嚴(yán)重,致使抵押制度在立法上偏重于保護(hù)債權(quán)人,而不能統(tǒng)籌考量,均有礙于抵押權(quán)擔(dān)保作用的發(fā)揮。我國《擔(dān)保法》在實施過程中,出現(xiàn)了諸多疑難問題。對這些問題需要從理論與實踐的角度進(jìn)行深入的總結(jié)和研究。就我國目前的司法實踐來看,對抵押的立法規(guī)定仍不免有疏漏之處,諸如不動產(chǎn)抵押證券化、重復(fù)抵押中的欺詐等問題,都是我們在研究抵押問題時不能忽略的。 從完善法律概念和充實司法實踐的意義上,對二手房抵押問題進(jìn)行體系研究和實踐考量,更會發(fā)現(xiàn)制度理論與實踐的發(fā)展亟待完善。在婚姻家庭方面,有關(guān)二手房抵押法律問題的法律法規(guī),是相當(dāng)健全和完善的,實務(wù)中由于當(dāng)事人之間存在著特殊的關(guān)系,卻頻頻成為法律紛爭的緣起；而從集體土地使用權(quán)所存在的法律問題中,則可以清楚的看到,正是由于集體土地權(quán)利的界限不夠清晰,深層次的導(dǎo)致了該用益物權(quán)為抵押時,權(quán)利時時得不到有效保障；由地下車庫(位)相關(guān)法律問題引出的空間權(quán)等專題的探討,是法律法規(guī)上較少涉及、因而在司法實踐上更見兩難。 鑒于目前頻頻存在的地方政府各自為戰(zhàn)的細(xì)則規(guī)范方式損害了法律的透明度和人們的知情權(quán),我們有必要以專門一章來為二手房抵押立法,更加精細(xì)的加以規(guī)范,來紓解當(dāng)前紛爭多有的現(xiàn)狀。進(jìn)而言之,應(yīng)當(dāng)由二手房抵押作為一個有力的突破口,充實和完善整個房地產(chǎn)法律體系,為中國統(tǒng)一房地產(chǎn)法的建立邁出堅實的一步。只有正確運(yùn)用并把握抵押權(quán),才能合乎法治建設(shè)的需要,從而我國市場經(jīng)濟(jì)發(fā)展的必然趨勢。
[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.
【學(xué)位授予單位】：中央民族大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D923
本文編號：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.
【學(xué)位授予單位】：中央民族大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2013
【分類號】：D923
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