楼花按揭法律性质探析

study of the legal nature of being-built house mortgage

楼花按揭是按揭人将其根据商品房预售合同取得房屋的期待权让渡给银行作为取得贷款的担保的一种法律行为。楼花按揭在法律关系、设定方式、标的物、实现方式和登记方式各方面都与抵押有明显的不同,从按揭人转让其在商品房预售合同当中享有的期待权给银行,同时保留回赎权的约定来看,其性质接近于大陆法系的让与担保,将楼花按揭的法律性质定位于让与担保,更有利于防范银行在按揭的风险。

Being-built house mortgage refers to such a legal act that mortgager transfer his Expectant Property Right according to the presale contract of commercial building to the bank for getting a loan. Being-built house mortgage is very different from the common mortgage in legal relationship, assuming way, object, realizing way and registration way. From the point that the mortgager transfers his Expectant Property Right to the bank and reserve the fight to redeem, we can conclude that being-built house mortgage is the same with the Abalienation Warranty in the Land Legal System. It would be more benefit for bank to avoid risk of mortgage to define the legal nature of being-built house mortgage as Abalienation Warranty.