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On the Establishment of China’s Circulated Mortagage System

Author: XieYaoYu
Tutor: YuMin
School: Southwestern University of Finance and Economics
Course: Civil and Commercial Law
Keywords: Circulation mortgage Secured by real estate securitization Modern mortgagee On Property Guarantee System Value orientation
CLC: D923
Type: Master's thesis
Year: 2007
Downloads: 230
Quote: 1
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Abstract

Security system aimed at financing funds, The active economic needs of economic development, is highly market-oriented theoretical results. The market economy is the economy of the rule of law, the life of a security system is to reflect the demand of the market economy system, promote the conduct of the transaction. Guarantee system for the the escort market economy, the development of the market economy also contributed to the perfection of a security system, and put forward higher requirements. The mortgage system is a security interest in the core of the system, known as \Therefore, the economic function of the guarantee system of play, but also depends on the mortgage system excellent or not. By comparison, China's actual situation, on the one hand, guarantee legislation, especially mortgage rights legislation, there are many shortcomings, its economic function is limited to the \\Strong need to adapt to the economic development of financial intermediation, with floating mortgage, all mortgage, the maximum amount of mortgages and other mortgage types, but the function still stick to of collateral preservation of claims positions, showing that the mortgagee the secured claims stubborn accompanying. Although the property rights of the mortgagee property has long been unanimously confirmed by domestic scholars, but can not get any manifestation of its exchange value is also the invisible in debt behind, Gan the dowry matter \; the other hand, China's economic development is the lack of financing channels (including direct and indirect financing), the development of the economy is over-dependent on the financial support of the banks and other financial institutions, and bank loans have a serious tendency funds focused on state-owned enterprises, large and medium-sized enterprises, the majority of small and medium enterprises as the mainstay of the economy, the private economy is unable to obtain sufficient market resources, not the powerful support of funds. The financing problem is not only small and medium enterprises, the bottleneck in the development of the private economy, the national economy has maintained a huge obstacle to sustainable development. Moreover, with the forming of the scale of recent years migrant workers return home business, rural economy began to spontaneous transformation, accelerate the pace of building new countryside, the private economy began a second spring, has long been troubled by the three agricultural problems of backward areas is expected to be resolved. However, the weak economic foundation of the rural economy, the total amount is small, particularly highlights the problem of the shortage of funds. As noted above, financing problems commonly found in private enterprises, small and medium enterprises. The rapid development of the national economy of funds, there has been strong demand for the facility, but the one hand, poor financing channels, and limited resources too concentrated, on the other hand, the legal system is too static, the market value of property rights by idle, its liquidity has not been any expression. Therefore, the system design and economic development is out of touch. How to get out of this predicament, to take advantage of the wealth activate resources, is a major issue before the law in front of. Due to the nature of the mortgage in economics credit, and is one of the means of economic entities to obtain funds, research mortgage system the actual significance of the theoretical limitations and the solution of the economic difficulties. This is the original intention of this article select the mortgage system as the object of study. Since China has traditionally stick with the guarantee of the preservation of the type system, in order to achieve the goal of strengthening the mortgage system of financial intermediation function, we can be the world, learning the countries of the advanced system. The latest developments by comparing the least developed countries (regions) a security interest in the system, we can find that the trends of modern security interest in the system, enhanced financing function: securities secured by real estate and circulation mortgage system. As one of the development trend of modern security interest, secured by real estate securitization has played a great role in the economy. Secured by real estate securitization originated in the Anglo-Saxon countries, and popular in European and Japan, it is essentially a secured creditor securitization. The development of the real estate securitization, is to meet the needs of the financial intermediation defuse the risk of bank. Combined with its course of development and China's actual situation, we can find that the system is not suitable for China. The main reason lies in two aspects: First, secured by real estate securitization appears to give tripartite bring benefits: secured party obtained financing; bank claims to be realized; the securities purchaser ROI. But we carefully analyze the bank's risk as financing intermediaries, able to detect the real estate-backed securities where the risk of system: banks secured by real estate, real estate and credit accounts for a substantial proportion, therefore, very vulnerable to the impact of the real estate industry. In the past few years, China's banking real estate loans accounted for the proportion of real estate development and investment funding sources, and overall was growing year by year trend, the main way of corporate finance up to 70% or more. The real estate industry is so dependent on banks, while the real estate \A direct consequence of the real estate bubble burst, financial institutions brought a large number of bad debts and bad debts. Financial institutions not only unable to recover interest, and in fact the premium is much lower than the guaranteed price, Even the mortgagee can not recover all loans. Nordic countries, the financial crisis in the late 1980s, Japan's bubble economy of the Asian financial crisis in the late 1990s is a painful experience. Real estate securitization through banks, to increase a lot of financial risk anti-risk awareness, and our financial institutions are not in place, the ability is generally poor, but also can not afford. In addition, China has set up four major banks non-performing assets disposal company, bank risk control channels established through this pathway, do not need to objectively impossible to defuse financial risks through the way of real estate-backed securities. Second, secured by real estate securitization, there is a risk: you may add to the personal credit crisis. Banks to implement secured by real estate securitization, debt and the mortgage is transferred to the transferee bank completely withdraw from the original creditor-debtor relationship and guarantee relations, the Business Credit Guarantee also into personal credit guarantee, the transferee increased risk of the party. Underdevelopment in China's personal credit system, more prominent judicial enforcement of a difficult environment. This will undermine the development of a security system objectively hinder the distribution function of the securitization play. Moreover, contrary to the Western countries, China's personal credit is generally not high evaluation mechanism is imperfect, and the bank's commercial credit is high, under normal circumstances, there will be no bankruptcy occurs. Therefore, if secured by real estate securitization in our country, there will be considerable investment and financing risk capital into backed securities market will be very cautious. The theoretical background to preserve the mortgage registration Effectiveness, mortgage registration involves a lot of paperwork, but also violated the securities trading rules will hinder the fulfillment of the transaction, the outlook is not optimistic. The facts prove that the mortgagee as \Circulation mortgagee comprehensive, deep analysis, I believe that many expositions of the mortgage system in circulation, there are many misconceptions and the impropriety of the relationship between its historical origins, and property rights behavior theory, pick up into the selection of subordinated fixed principles, and guarantees the mortgage system separation. This paper argues that: Recalling the history of the development of Germany circulation mortgage system, we can see that the driving force behind the surge of the same, that the rapid growth of the total economy of its formation, the determinants of development; government strength (Prussia Jagged policy and the subsequent unity government) played a key role in promoting; national unity provides the stable political conditions. Basic principles and essence of the mortgage system in circulation, characterized by combing, we can summarize the flow of the mortgage process: land ownership on land collateral matters apply to the registration authority, the latter shall issue backed securities; creditors get a mortgage to get a mortgage securities backed securities delivery in full accordance with the principle of movable property delivered, mortgage securities obtained circulation; debt is settled or the mortgagee and the establishment of all mortgagee or mortgagee eradication of. Re-affirmed the property rights of the mortgagee property, which is the theoretical premise of the circulation of the mortgage system; distinguish between multi-angle and Germany circulation pledge of collateral, draw a clear line between domestic research some confusion. Third, modern mortgagee Controversy, the paper argues that whether a law theory as I used not to identify whether universal as the standard. China is no reason why further explored on the go, and also because of the time of this system is not in our country to find a suitable foothold or entry point, or has not this system more compatible with the socio-economic status. But now I looked back, the situation of China's land, economic development but provide the soil for the growth of this system. Therefore, it is not foreign to deny the individual needs of our country. Fourth, although the behavior of thing in the traditional sense of independence and no external links due to the independence of the theory with the flow of mortgage, but you can not look similar on the broken conclusions, with Germany and France on the behavior of real right theory to deny the feasibility of circulation mortgage in our country. In addition to the unmatched economic causes both stance there is a lot of difference can not be ignored. The mortgage type setting, decided liters into the principles of the trade-offs of fixed principles and overall mortgagee pick. Analyzed from the point of view of rational economic man, the equity interests of the parties, to promote the goal of market transactions for consideration, cis-bit fixed doctrine more fully the reasons. In determining the flow of mortgage system has the advantages of enhanced the mortgagee liquidity, financial intermediation, and can better adapt to the trend of China's economic development, the case of the legal system, proposed the idea to build our circulation mortgage system: a clear guarantee property rights of value orientation, and the flow of mortgage positioning in the property rights system. From slave ownership to independent ownership regression we try to increase the flow of mortgage types, will be reflected in the change of orientation of the Property Law holdings from the object to the utilization of development, and to promote the security interest, the security interest has thus take into account the preservation of nature and demand liquidity binary. Second, we can define the security interest: it is indefinite property rights established in the specific, or rights of the debtor or a third person, in order to ensure the repayment of the debt or real estate investment and financing purposes. , The mortgagee is the debtor or a third party does not transfer possession of the mortgaged property, the property as a security for debt or financing through securitization, the debtor defaults, the creditor to the property in accordance with the law of discounts or priority for repayment of the auction, the proceeds realized from the property rights. Institutional transplant risks visits, identification of existing civil law system and the flow of mortgage-related system compatibility, and expounded the significance of the flow of mortgage on the microeconomics; Fourth, the proposed legislative breakthrough China should improve and propose specific mode, the process of circulation of the mortgage system in China.

On the Establishment of China’s Circulated Mortagage System

Abstract

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