论我国大陆“商品房按揭”制度的法律性质

On Law Essence of Mortgage of Commodity Apartment in Mainland of China

本文沿着历史线索,探析英美法律中按揭的原始含义和现实状况,联系我国香港按揭法制的现状,结合我国按揭担保的实践和相关立法,对我国大陆“商品房按揭”的法律性质作出判断。根据我国法制的传统和按揭的实践,宜将现房按揭定性为不动产抵押,楼花按揭定性为动产质押。

This article will analyze the meaning of mortgage in the past and nowadays and make judgments on the mortgage of commodity apartment by the hint of history in connection with the status of mortgage in HongKong＇ s law and the practice of mortgage and revelent laws and regulations in the Mainland of our country. The article concludes that the mortgage of completed commodity apartment should be defined as the charge of real estate and the uncompleted commodity apartment should be defined as the pledge of fight in accordance with our country＇s law condition and our practices of mortgage.