预购商品房抵押登记的性质与效力:实证考察和路径选择

Nature and Effectiveness of Mortgage Registration of Pre-purchasing Commercial House: From the Perspective of Empirical Investigation and Approach Selection

作为伴随着房屋预售制度产生的配套机制,预购商品房抵押权登记旨在保障银行房贷债权的实现。依现行法,预购商品房抵押权登记属于预告登记无疑,具有保全、顺位效力。预告登记能够抵御破产程序所带来的风险,但不具备对抗法院执行措施的效力。预购商品房抵押权登记使债权人取得了将来发生抵押权变动的请求权,该请求权经预告登记后具有了排除后续物权变动的效力。为实现制度目的,预购商品房抵押登记在一定条件下具有优先受偿效力是适当的,符合社会经济生活的实际需要,并不违反物权法定原则。

Mortgage registration of pre-purchasing commercial house, as the matching mechanism arising with house pre-sale system, aims to provide guarantee for banks’ creditor rights on house loan. In accordance with current law, it is undoubted that mortgage registration of pre-purchasing commercial house belongs to preliminary registration, which has the effectiveness of security and sequence. The registration can provide protection from bankruptcy procedures but it can’t resist the enforcement measures by courts. It vests creditors with the right of claim for the alteration of mortgage in the future. After preliminary registration, this right of claim has the exclusive validity in subsequent real right alteration. It is not improper to vest mortgage registration of pre-purchasing commercial house with the priority of compensation, in order to reach the institutional end. This is no violation of principle of legal prescription of real right, and also satisfies the actual needs of social economic life.