期房按揭的风险责任及其平衡——兼论让与担保的实践价值

The Risk Duty of Mortgage in Future Property and Its Equilibrium: A Tentative Study of the Practical Significance of Transferred Guanrantee

20世纪 90年代初 ,按揭自香港传入我国内地 ,在期房 (预售商品房 )买卖中广泛应用 ,由于按揭是英美法中的担保形式 ,大陆法系及我国无此概念。因此 ,我国以抵押、质押制度去规制按揭行为存在许多缺陷 ,导致按揭当事人承担的风险责任失衡 ,各方利益得不到公平保护 ,按揭业务举步维艰。本文通过比较研究 ,指出让与担保在分担风险责任方面具有优越性 。

The practice of mortgage introduced into China's Mainland from Hong Kong was widely adopted in the selling of future property in the early 1990s. Mortgage is a form of guarantee in the British and American legal system, but it does not exist in the continental legal system or in the legal system of China's Mainland. Therefore, the practice of using pledge to stipulate the mortgage system could result in many deficiencies causing inequilibrium of the parties involved in undertaking the risk, inequality in protection of the two parties' interests. As a result, the business of mortgage is seriously hindered. This paper through a comparative study analyzes the advantages of transferred guarantee in sharing the risk and the practical significance of adopting transferred guarantee.