预售商品房抵押的学理基础研究

The Theoretical Orientation of the Mortgage of Presale Merchandise Buildings

预售商品房抵押是一个复杂的法律问题,其中涉及到很多法律关系。预售商品房抵押在实践中早已客观存在?,但相关立法却显得较为滞后。预售商品房抵押的设立突破了传统民法中的抵押权设立方式,其法律特征也不同于一般的商品房抵押,抵押的标的是期待权,从民法基础理论的角度对预售商品房抵押的学理问题进行探讨确有必要。预售商品房抵押依理论具有可操作性,今后我国若能在立法上对其作出较完善的规定,将会对我国房地产法学理论及实践带来有益的补充与完善。

The mortgage of presale merchandise buildings is a very complicated problem, involving many law relations. The mortgage of presale merchandise buildings has been existed in practice, but corresponding legislations are lag behind today. The mortgage of presale merchandise buildings has broken through traditional mortgage right in civil law, and its characteristics differ from the ordinary mortgage. It is a kind of mortgage based on the expectant right. It is very necessary to study the theoretical problems of the mortgage of presale merchandise buildings on the basis of civil law theories. The mortgage of presale merchandise buildings can be operated in light of its theory. If it can be improved in law, it will boost the study of the law of the real estate.