Exploration of the Legal Liability of the Mortgagor in Unregistered Real Estate Mortgage Contracts——A Comparative Perspective Based on Relevant Norms
The mortgagor's liability in unregistered real estate mortgage contracts is essentially a breach of contract liability.The liability for breach of contract is non-fault liability,and Article 46 of the"Interpretation of the Guarantee System"conflicts with Article 593 of"The Civil Code".If it is determined that the mortgagor should bear supplementary liability,it means that the mortgagor has obtained the right of first instance defense through breach of contract,which reduces the liability compared to the effective establishment of the mortgage,and infringes on the rights and interests of the complying party,if it is directly determined that the mortgagor bears joint and several liability without legal provisions or the basis agreed upon by the parties.Without breaking through existing breach rules and avoiding the mortgagor only bearing supplementary liability for damages to creditors,it may be considered to use judicial interpretations or guidance cases based on breach remedy rules to clarify that creditors can request the mortgagor to assume joint and several guarantee liability within the value range of the collateral for remedy.
"Summary of the 9th National Conference on Civil and Commercial Trial Work of Courts"guarantee systemguiding case studiesnon-fault liabilityjoint and several liability for repaymentcompensation for breach of contract damages
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