商品住房担保贷款制度的法律建构——对按揭与抵押的重新审视

On the Statutory Framework of a Secured Loan for Commodity Houses:Reconsidering the Vitality of Mortgage

在商品住房贷款中,借贷双方采用最多或最广泛的不是我国民事法律已经规定的6种担保方式而是“按揭”。“按揭”作为贷款融资担保方式和商品住房买卖合同的付款方式,在我国流行20余年,虽有争议,仍日趋兴盛,其作用甚至不止于商品住房贷款。随着建设部等九部委在有关住房贷款的行政规范性文件中正式使用“按揭”这一专用术语,其法律地位已趋明朗。正在制定中的《物权法》,应将按揭作为我国主要的担保方式之一。

It is mortgage rather than the six securities provided in China＇ s civil law that both the borrower and the lender prefer in making a secured loan for a commodity house. Being a security for financing and a way of payment for a contracted commodity house, having a mortgage was introduced into China more than 20 years ago. As controversial a subject as it is, mortgage is still popular at present day and its function has gone far beyond the area of a loan for commodity houses. Since the State Council has assumed ＂mortgage＂ in its laws concerning buying a house with a loan, the legal status of the term has gradually been ascertained. As such, having a mortgage should be accepted as one of the six main security modes in the proposed Real Right Act of the PRC.