Article 46 Where the mortgage contract for immovable property fails to go through the mortgage registration formalities after it takes effect, and the creditor requests the mortgagor to go through the mortgage registration formalities, the people's court shall support it.
Where the mortgaged property cannot be registered due to loss or expropriation due to reasons not attributable to the mortgagor, and the creditor requests that the mortgagor bear responsibility within the scope of the agreed guarantee, the people's court will not support it; However, if the mortgagor has already obtained insurance money, compensation or compensation, and the creditor requests that the mortgagor bear the liability for compensation within the scope of the amount obtained, the people's court shall support it in accordance with law.
Where the mortgagor is unable to register the mortgage due to the transfer of the mortgaged property or other reasons attributable to the mortgagor itself, and the creditor requests that the mortgagor bear responsibility within the agreed scope of security, the people's court shall support it in accordance with law, but it shall not exceed the scope of liability that the mortgagor should bear when the mortgage can be established.
【Purpose of the Article】
This article is a provision on whether and how the mortgagor is liable when the mortgage of immovable property is not registered.
【Overview of Provisions】
According to the principle of distinction, in the mortgage of immovable property, if the parties sign a mortgage contract but fail to register the mortgage, the validity of the mortgage contract will not be affected only if the mortgage right has not been established. Therefore, the creditor can request the mortgagor to continue to perform the contract in order to finally obtain the mortgage. However, in practice, the creditor's claim for continued performance of the mortgage contract is often unable to be realized due to the mortgagor's non-cooperation, and it is necessary to clarify what kind of liability the mortgagor should bear. We believe that in the event that the mortgage contract cannot be continued to be performed, the mortgagor shall be liable for breach of contract arising from the breach of the mortgage contract, but the corresponding liability shall be determined according to different circumstances. In the case that is not attributable to the mortgagor, such as the loss of the subject matter due to a natural disaster, the mortgagor shall only be liable for damages for breach of contract within the scope of the subrogation obtained; In the event that the mortgagor fails to register the mortgage due to reasons attributable to the mortgagor itself, such as the mortgagor transfers the mortgaged property to another person, the mortgagor shall be liable for breach of contract within the scope of the agreed guarantee, but shall not exceed the scope of liability that the mortgagor should bear when the mortgage can be established.
【Controversial Views】
There is a view that if only the immovable property mortgage contract is signed without the mortgage registration, the mortgage right has not been established, and the mortgagee lacks legal basis to claim the mortgage right, but it can still claim the mortgagor to bear the liability for breach of contract based on the mortgage contract, including requiring the mortgagor to continue to perform the obligation to handle the mortgage registration and the liability for breach of contract in the event of failure to register the mortgage. In view of the fact that the liability for breach of contract compensates for the loss of performance interests, the mortgagor shall bear the liability for breach of contract to the creditor to the extent of the value of the collateral. Another view is that, regardless of whether the mortgagor violates the obligation to register the mortgage, according to the principle of distinction in Article 215 of the Civil Code, the creditor can require the mortgagor to assume the security obligations under the mortgage contract in accordance with a valid mortgage contract. Such security is a claim in nature and is an atypical security between a guarantee and a mortgage. The difference between the guarantee and the guarantee is that the guarantee is secured by the guarantor's unspecified property, while this atypical guarantee is secured by a specific thing. It is similar to a mortgage in that both are secured by a specific thing, but the difference is that the former is a creditor's right security and the latter is a property security. When the mortgagee requires the mortgagor to bear the guarantee liability in the mortgage contract, the mortgagor shall bear joint and several liabilities to the extent of the value of the mortgage, rather than supplementary liabilities.
[Understanding and Application]
1. The failure to register the mortgage of immovable property does not affect the validity of the mortgage contract
Article 215 of the Civil Code stipulates that: "Unless otherwise provided by law or otherwise agreed by the parties, a contract concluded between the parties concerning the creation, modification, transfer and extinction of immovable property rights shall take effect upon the conclusion of the contract; If the property right is not registered, the validity of the contract shall not be affected. This article establishes the principle of distinguishing between the causes and acts of changes in property rights and changes in property rights, and clearly distinguishes between the validity of contracts (the reasons for changes in property rights) and the effectiveness of property rights (the result of changes in property rights). According to this article, if the mortgage of immovable property has not been registered, the validity of the mortgage contract shall not be affected.
2. If the mortgage of immovable property has not been registered, the mortgage right has not been established, and the creditor does not enjoy the priority right to repayment of the mortgage
After the mortgage contract is validly established, whether the mortgage right is created needs to be analyzed in detail and cannot be generalized. Articles 402 and 403 of the Civil Code on the basic principles of the establishment of mortgage rights are: for immovable property mortgages, the registration requirement doctrine is adopted, and the mortgage right is created from the time of registration; For chattel mortgages, the doctrine of registration adversarial is adopted, and the mortgage right is created when the mortgage contract takes effect, and it cannot be used against a bona fide third party without registration. Specifically, where a mortgage is created on immovable property such as buildings and other land attachments, the right to use construction land, the right to use sea areas, and buildings under construction, the mortgage registration shall be completed, and if the mortgage contract is signed but the mortgage is not registered, the mortgage contract shall be validly established, but the mortgage right shall not be established. If a mortgage is created on the following property, the mortgage right shall be created from the time when the mortgage contract takes effect, but it shall not be used against a bona fide third party without registration: (1) production equipment, raw materials, semi-finished products and products; (2) Ships and aircraft under construction; (3) means of transportation; (4) Other movable property that is not prohibited by laws and administrative regulations from being mortgaged.
For immovable property mortgages, the registration requirement principle is adopted, and the mortgage right is created from the time of registration. Therefore, if the mortgage of immovable property has not been registered, the mortgage has not been created and the creditor has not obtained the mortgage. According to article 394 of the Civil Code, the essence of a mortgage is that the creditor has the right to be repaid in priority for the mortgage. Since the creditor has not obtained the mortgage, the creditor does not have a priority right to be repaid to the mortgage.
3. When the immovable property mortgage contract is valid, the mortgagor shall go through the mortgage registration formalities
Registration is necessary for the establishment of a mortgage on immovable property, and where a mortgage contract is signed but the mortgage is not registered, the mortgage is not created, and the creditor's claim for the right to enjoy the mortgage shall not be supported. However, whether or not the mortgage is registered does not affect the validity of the mortgage contract, after the mortgage contract takes effect, it is binding on both parties, and the mortgagor has the obligation to register the mortgage in accordance with the contract, and if the mortgagee requests the mortgagor to go through the mortgage registration formalities, the people's court shall support it.
4. The mortgagor's liability when the mortgagor fails to register the mortgage due to reasons not attributable to the mortgagor
Where the mortgaged property cannot be registered due to the loss or expropriation of the mortgaged property due to natural disasters or other reasons, and the mortgagor is not at fault, and the creditor requests that the mortgagor bear responsibility within the scope of the agreed guarantee, the people's court shall not support it. However, if the mortgagor has already obtained insurance money, compensation or compensation due to the damage or loss of the mortgaged property or the expropriation of the mortgaged property, the people's court shall support the creditor's request that the mortgagor bear the liability for compensation within the scope of the amount obtained by the mortgagor with reference to the provisions of Article 390 of the Civil Code.
5. The mortgagor's liability when the mortgagor fails to register the mortgage due to reasons attributable to the mortgagor
Where the mortgagor fails to register the mortgage due to the transfer of the mortgaged property or other reasons attributable to the mortgagor itself, the responsibility for failing to register the mortgage lies entirely with the mortgagor, and if the creditor requests the mortgagor to bear responsibility within the scope of the agreed guarantee, the people's court shall support it in accordance with law, but it shall not exceed the scope of liability that the mortgagor should bear when the mortgage right can be established. How to understand that it should not exceed the scope of liability that the mortgagor should bear when the mortgage can be established, to illustrate with an example: assuming that the secured claim agreed in the mortgage contract is 5 million yuan and the value of the collateral is 3 million yuan, then the mortgagor only bears liability within the scope of 3 million yuan; Assuming that the secured claim agreed in the mortgage contract is 5 million yuan and the value of the collateral is 8 million yuan, then the mortgagor only bears liability within the range of 5 million yuan.
[Practical issues]
1. If the mortgage contract takes effect but the mortgage registration has not been completed, the mortgagor shall bear supplementary liability or joint and several liability
There are different views on this issue in practice. The main basis of the theory of joint and several liability is that the mortgagor bears an atypical guarantee liability similar to a joint and several joint guarantee, and the mortgagor should bear joint and several liability with the debtor. We are inclined to believe that paragraph 3 of Article 178 of the Civil Code clearly stipulates that "joint and several liability shall be prescribed by law or agreed upon by the parties." Accordingly, if the parties have not agreed to bear joint and several liability, there is no legal basis for determining that the mortgagor bears joint and several liability. In this regard, unless the mortgage contract expressly stipulates that the mortgagor shall be jointly and severally liable, the mortgagor shall only be liable for supplementary liability if the debtor is unable to pay off. Such supplementary liability shall be limited to the value of the collateral, and if the scope of security agreed in the mortgage contract is less than the value of the collateral, the scope of the agreed security shall be limited to the extent of the agreed guarantee, and shall not exceed the liability of the mortgagor when the mortgage right is validly established.
2. How to deal with the mortgage contract when the mortgage contract takes effect but the mortgage has not been registered, and the creditor files a lawsuit against the debtor and the mortgagor other than the debtor
There is a certain difference in law between the mortgagor being liable for breach of contract or being jointly and severally liable. In the case of liability for breach of contract, the mortgagor generally bears supplementary liability to the extent that the principal debtor cannot be discharged, and the mortgagor has the right to defend in the first instance. However, a creditor who is jointly and severally liable may require any debtor who bears joint and several liability to bear full liability, and the joint debtor does not have the right to defend in the first instance. Since we tend to believe that the mortgagor who has not registered the immovable property bears the liability for breach of contract, the mortgagor has the right to defend in the first instance, which can be handled in accordance with the procedural rules of general guarantees, that is, the provisions of Article 26 of the Interpretation of the Guarantee System of the Civil Code shall apply. Where a creditor initiates a lawsuit with the debtor as the defendant, the people's court shall accept it. If the creditor does not file a lawsuit or apply for arbitration in respect of the main contract dispute, but only sues the mortgagor, the people's court shall reject the lawsuit. If the creditor sues the debtor and the mortgagor together, the people's court may accept it, but when making a judgment, except for the circumstances provided for in the proviso to paragraph 2 of Article 687 of the Civil Code, it shall be made clear in the main text of the judgment that the mortgagor shall only bear the guarantee liability for the part of the debtor's property that cannot be performed after being enforced in accordance with law. Where the creditor fails to apply for preservation of the debtor's property, or the debtor's property preserved is sufficient to pay off the debt, and the creditor applies for preservation of the mortgagor's property, the people's court shall not approve it.