Liability of the Mortgagor Who Cannot Register the Real Estate Mortgage From the Outset

Mengting Mao

doi:10.71204/1vgaf720

Authors

Mengting Mao China University of Mining & Technology Author

DOI:

https://doi.org/10.71204/1vgaf720

Keywords:

Real Estate Mortgage Guarantee, Mortgage Registration, Liability For Breach of Contract

Abstract

This article takes the Supreme People's Court Guiding Case No. 168 as the research object to explore the legal liability of real estate mortgagors when they are unable to register mortgages initially. The study points out that according to Articles 402 and 577 of the Civil Code, when the mortgage contract is valid but the mortgage right is not established, the mortgagor only bears the liability for breach of contract rather than the guarantee liability.Through normative interpretation and empirical analysis, it is found that in judicial practice, it is necessary to combine the fault offset rule (Article 592) and quantify the proportion of liability reduction according to the intensity of the bank's review obligation and the degree of fault. The innovation of the research lies in demonstrating the nature of the mortgagor's obligation to assist in registration from the perspective of the “bilateral contract obligation group”, and proposing the judgment standard of “the scope of liability does not exceed the guarantee liability when the mortgage right is established”, providing theoretical support for judicial practice.

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