【作者】 刘渊；

【导师】 彭熙海；

【作者基本信息】 湘潭大学 ， 法律， 2007， 硕士

【摘要】 至2000年以来,中国银行业期房按揭屡创新高,而中国按揭立法尚处于起步阶段,社会信用制度不完善,金融防范手段还比较薄弱,导致银行业期房按揭风险加大,按揭风险有待加强防范。从香港及相关国家和地区的立法及实践来看,对银行期房按揭风险的防范措施各不相同,但都是趋向于体系化的法律防范.目前我国期房按揭风险日益显形,理论界和实务界均期望通过对银行期房按揭风险探根溯源,以从根本上防范于未然,故如何选择适合中国国情的措施,进而形成一套完善的期房按揭防范体系,已成为关注的焦点。目前主流观点多从按揭属性,按揭风险的种类,按揭风险防范措施等众多方面阐述,尽管很多见解颇为独到,但其多从经济的视野着眼,缺乏宏观性,稳定性和国家强制性,收效难尽如人意。当前银行业期房按揭风险不断加大,中国可以借鉴香港的按揭制度对按揭制度进行适当的法律属性改造,并针对《商业银行法》、《担保法》等相关银行抵押的条款进行改造,肪范银行按揭风险法律规制的失灵,维护良好的社会主义金融秩序。就国内目前解决期房按揭风险问题的措施而言,一般采用抵押的方式,而国外除抵押方式以外,还有诸如回购、按揭贷款证券化、按揭保险等措施,并且这些措施能对银行按揭风险多方位的进行防范和缓解风险。中国有必要对国内外的按揭保险进行比较和研究.并结合中国按揭保险的现状和问题,健全和完善中国房地产按揭风险和防范制度。更多还原

【Abstract】 The legislation of the mortgage in our country is still in the initial stage and social credit system is imperfect. The financial means of prevention is relatively weak, and we are lack of management experience and information support. The author got the theme of On Banking Risks of Mortgage Loans and Legal Regulations, gave a detailed explanation in the forming of China’s banking mortgage loan risks and combines with the successful international experience in guarding against the risks of mortgage loans.The author got into the etymology of mortgage and analyzed mortgage status of our country.The author combined the present conditions of the mortgage system with the analysis in the rights and interests of the banks in the mortgage loans providing. In this part, the author pointed out that the banks expose to several kinds of risks in the process of mortgage loans providing, and laid down the foundations for constructing the mortgage risk prevention system.The author pointed out that there are still some barriers in the law system for the resolution of the legal risks. Consequently, the author attempted to have further study on the construction of the mortgage law.The author interpreted some repurchase practices in the mortgage and the essence of the repurchase, and got the idea that the developers enjoy the obligation of repurchase.The author suggested that the building of the prevention system to the fake mortgage should be conducted from several aspects, such as completing the legal system, improving the concept of corporations and individualities.The author stated the target of Atrioventricular MBS which is based on the analysis of the liquidity risks of the mortgage and the present conditions of the mortgage in our country. The author also assumed that the role of the government in macro-control should be strengthening, and the legislature makes some amendment to concord the law system with securitization system. Furthermore, the formulations about legitimate investment status of the institutional investors should be laid down.The author made a study of a series risks may emerge from the banking mortgage, and carried on comparable study with the mortgage insurance at home and abroad. In this chapter, the author introduces some new measures in perfecting the system of real estate mortgage insurance. In conclusion, though the being built mortgage is now widely used, as a matter of fact, the mortgage system has never been really built up. Due to the lack of property rights transfer of the mortgage factor, in addition, mandatory under the law to achieve the mortgage is very limited. Thus the mortgage system which is carried on in our country is unable to fully play its role in protecting banks (mortgage owners). For have been engaging in personal real estate loan processing and management of many years of experience in the bank, the author connected with authoritative departments to conduct in-depth investigation and understanding and raised operational advice in the construction of mortgage risk prevention mechanism. Besides, it is necessary that the being built mortgage system should be completed and fully protect the mortgage right of the banks. Then can the banks make use of the relevant institutions and measures, and make claims to be the most adequate relief Thereby, the banks can effectively reduce and resolve its risks.更多还原