【作者】 王晓芬；

【导师】 王明锁；

【作者基本信息】 河南大学 ， 民商法学， 2005， 硕士

【摘要】 楼花按揭,是以在建甚至是未建的预售商品房作为担保标的取得银行贷款的一种新的融资担保方式。该担保方式 90 年代初自香港传入我国大陆后,极大地推动了我国房地产业的发展和住房改革的深化。楼花按揭,一方面使普通百姓拥有商品房的梦想成为现实,扩大了房地产的销售市场,促进了经济的发展;另一方面,楼花按揭的应用,扩大了银行业务范围并避免了银行在商品房开发、预售两个独立的环节中分别向开发商、购房人融资贷款的交叉占有资金形式,从而在一定程度上缓解了我国房地产市场资金紧张的状况。然而,从理论层面上讲,由于这种新的担保方式源于英美法系,而我国担保法律制度继受的是大陆法系,在我国现有的担保法律制度框架下找不到与楼花按揭相对应的担保形式。立法及实务中,多以抵押制度来调整楼花按揭关系,但是楼花按揭在许多方面并不能为抵押制度所涵纳,故楼花按揭引入大陆后引起了人们认识上的差异及法律适用上的混乱,如何正确认识楼花按揭的法律性质并寻求合理的制度规范之,便具有了重要的现实意义。本文通过对国内外有关于楼花按揭法律制度的研究,认为楼花按揭应归属于大陆法上的让与担保,并在重新定性基础上,试图对楼花按揭内容进行重新规制并探寻相应的配套措施。文章除引言和结语外共分为五大部分: 第一部分:楼花按揭概述。 从制度的起源入手,分析了按揭的实质内涵并阐述了楼花按揭的由来、含义、功能、特征、法律效力及楼花按揭在我国的引入。楼花按揭是指,于在建楼宇预售时,购房人(按揭人)将其与开发商所签订的《楼花买卖合同》中所取得的物业权利让与于银行(按揭权人)作为担保,向银行贷款支付除其已交首期购房款外尚欠的房款,购房人于期满偿还所贷款项本息及其他费用后,银行将物业权利重新让回于购房人,反之,银行有权采取多种方式就标的物优先受偿或请求法院颁布禁令取消购房人的回赎权。楼花按揭作为房地产领域一种广泛应用的融资担保手段,使开发商、购房人、银行三方利益得到最佳的整合,其特征主要表现在:涉及两个合同关系和三方关系人;标的物实质上为期待权;通过移转楼花业权来设定;按揭权的实现方式具有多样性。楼花按揭的法律效力主要体现在购房人与银行之间的对内法律效力和对按揭当事人之外的第三人所产生对外法律效力两个方面。 第二部分:楼花按揭在我国的现状及存在的问题。 介绍了我国楼花按揭设更多还原

【Abstract】 Mortgage on future estate is a new type of financing guarantee to obtain bank loans by taking unfinished houses for sale as guarantee objects. Ever since it was introduced from Hong Kong into the mainland in the 1990s, this guarantee mode has greatly promoted the development of estate transaction and reform of housing system in China. Mortgage on future estate, on the one hand, can help to make common people’s dream of possessing house come true, expand the estate markets and promote the development of economy. On the other hand, its application expands the business scope of banks and avoids their intersected fund-occupation of financing for the developers and loans for house-buyers in two separate sections like house development and presale, which to a certain extent, alleviates the fund tension on China’s estate market. However, in theory, this new guarantee mode is originated from the Anglo-American legal system, while China’s guarantee legal system is inherited from the continental law. There is no guarantee form in the framework of China’s current guarantee legal system in correspondence with mortgage on future estate. In legislation and practice, mortgage on future estate is usually adjusted by charge system, however, the former is not included by the latter in many aspects. Therefore, ever since its introduction into the mainland, mortgage on future estate has resulted in different recognitions and confusions in legal application. It will be of much practical significance to find out how to understand its legal nature correctly and find a rational legal system to regulate it. Through researches on the legal system of mortgage on future estate both at home and abroad, the thesis concludes that mortgage on future estate should be classified into transferred guarantee system of Germany and Japan; in addition, on the basis of nature re-defining, this thesis tries to re-regulate the content of mortgage on future estate and seek corresponding support measures. Besides Introduction and Conclusion, this thesis consists of five chapters. Chapter One: A General Introduction to Mortgage on Future Estate. Starting from its source, this chapter analyzes the essence and connotation of mortgage on future estate, and further expounds its origin, connotation, function, characteristics, legal forces and its introduction into China. Mortgage on future estate refers to, when an uncompleted house is open for sale, that the buyer (mortgagor) transfers his property rights obtained from Purchase & Sales Contract signed with the developer to the bank (mortgagee) as a guarantee for a loan to pay off the rest besides the down payment. If the buyer pays off the principal and interest and other expenditures to the bank before expiration, the bank will return all the property rights to him, or else, the bank may take many measures to secure the preferred creditor’s rights or appeal the court to foreclose the buyer’s mortgage. Mortgage on future estate, as a widely applied means of financing guarantee in estate trade, succeeds in benefiting the buyer, the bank and the developer at the most. Its characteristics are as follows: it involves two contractual relations and three parties; its object is actually an expectant right; it is set up by transferring future property right; the realization modes of mortgage right are diverse. The legal force of mortgage on future estate is mainly embodied in two aspects, the internal legal force between the buyer and the bank and the external force relating to the third party. Chapter Two: Current Situation and Problems in Mortgage on Future Estate. This chapter first gives an introduction to the establishment of mortgage on future estate in China, the main contents of mortgage contracts and legal relations concerned. On this basis, it analyzes the major problems existing in mortgage on future estate, that is, improper understandings of its legal nature, and the resulting unbalanced benefits between the parties concerned, which are mainly manifested in the following points: the overburden risk on the更多还原