论未登记不动产抵押合同中抵押人的责任——《民法典担保制度解释》第46条的理解与适用

On the Mortgage's Responsibility in the Unregistered Real Estate Mortgage Contract——The Understanding and Application of Article 46 of the Interpretation of the Guarantee System of the Civil Code

不动产抵押合同包括设定抵押权的约定与设立抵押权的合意两项内容。前者为债权合同,后者则为物权合意。在未办理抵押登记时,抵押权虽未有效设立,但设立抵押权的约定这一债权合同的效力不因此受影响。依据有效的抵押合同,当主合同的债务人到期未能清偿债务时,债权人虽然不能依据抵押权对抵押物享有优先受偿的权利,但有权请求抵押人承担违约责任。抵押人的违约责任包括继续履行登记义务和损害赔偿责任,其中损害赔偿在可归责于抵押人的原因导致不能登记时产生,系在抵押财产价值范围内的连带赔偿责任。

The real estate mortgage contract includes the agreement on the establishment mortgage and the agreement on the establishment of mortgage.The former is a creditor's rights contract,and the latter is a property agreement.When the mortgage registration is not processed,although the mortgage right has not been effectively established,the validity of the creditor's rights contract of the agreement on the establishment of mortgage is not affected thereby.According to a valid mortgage contract,when the debtor under the master contract fails to repay the debt due,although the creditor cannot enjoy the priority of repayment of the mortgaged property according to the mortgage right,he/she has the right to request the mortgagor to bear the liability for breach of contract.The mortgagor's liability for breach of contract includes continuous performance of registration obligations and liability for damages.Among them,damages compensation occurs when the registration is not possible due to reasons attributable to the mortgagor,which is a joint and several liability within the value of the mortgaged property.