Brief facts of the case
On May 26, 2016, Diao Jianbo, Chen Shuner and Huajun Company signed the "Yufu Parking Space Subscription Letter", stipulating that Diao Jianbo and Chen Shuner would subscribe to a parking space located in Tianhe District, Guangzhou developed by Huajun Company, and Diao Jianbo and Chen Shuner paid the price and received the invoice.
On July 4, 2016, the Xinglong Sub-branch of Bank of Gansu signed the Maximum Mortgage Contract with Huajun Company, and the parking spaces involved in the case fell within the scope of the above-mentioned maximum mortgage guarantee.
In the case of a loan contract dispute between Xinglong Branch of Bank of Gansu and Huajun Company and other debtors, the court seized the property listed in the annex to the civil ruling in accordance with the law, including the parking spaces involved in the case. After the civil judgment took effect, the court initiated compulsory enforcement, and during the enforcement process, Diao Jianbo and Chen Shuner raised objections to the enforcement and were involved in litigation.
Court Views
The focus of the dispute in this case is whether the civil rights and interests enjoyed by Diao Jianbo and Chen Shuner in respect of the parking space involved in the case can exclude the enforcement of the mortgage right of the ** Square Branch of Bank of Gansu.
The law stipulates that banks have the obligation to review the collateral when creating security for external loans, and this provision is to prevent the risk of bank loans, and one of the main risks of bank loan mortgage guarantee is that the collateral has defects or encumbrances that affect the realization of the mortgage right, such as inconsistency with the registration. According to the due diligence materials submitted by the ** Square Branch of Bank of Gansu, the property rights of the parking spaces involved in the case were registered in the name of Huajun Company when the mortgage was handled, and the status quo of the parking spaces was that "the garages were all in use, and the residential part was partially vacant". The ** Square Branch of the Bank of Gansu had clearly known that the parking space involved in the case was under the possession and use of the owner, and the possibility of other people's rights in the parking space had obviously existed, but it did not further investigate whether the parking space had been sold or whether there were other rights holders, so that the mortgage right of the ** Square Branch of the Bank of Gansu conflicted with the prior rights of Diao Jianbo and Chen Shun'er, and the ** Square Branch of the Bank of Gansu failed to fulfill the necessary duty of care.
Although the ** Square Branch of the Bank of Gansu set up a mortgage on the parking space involved in the case, which has the effect of against a third party, Diao Jianbo and Chen Shuner had actually occupied the parking space before the mortgage and paid the full price, so they were not at fault for failing to register the property rights. The ** Square Branch of the Bank of Gansu failed to fulfill the necessary duty of care when setting up the mortgage and was at fault. Taking into account various factors, it is necessary to give priority to the protection of the rights of Diao Jianbo and Chen Shun'er. Therefore, it can be determined that Diao Jianbo and Chen Shuner enjoy the civil rights and interests of excluding the enforcement of the mortgage right of the ** Square Branch of the Bank of Gansu in the parking space involved in the case.
Legal Commentary
In this case, Diao Jianbo, Chen Shuner and the ** Square Branch of the Bank of Gansu had a conflict of rights over the parking spaces involved in the case, and the fundamental reason was the serious dishonest behavior of Huajun Company in selling first and then mortgaging. In the case of the fact that there is a common situation in the sale and purchase of commercial housing in China, and the registration time is long, the buyer usually lacks effective means to prevent the transaction risk of "one house sold twice" or "sold first and then paid", and is in a passive position in handling the property right registration.
Diao Jianbo and Chen Shuner purchased and paid the price at the end of May 2016 in the process of selling the parking space by the developer Huajun Company, and occupied the parking space in early June 2016, and the ** Square Branch of the Bank of Gansu set up a mortgage on July 4, 2016 one month later. Not only do laws and regulations clearly stipulate that the bank shall conduct due diligence on the collateral, but also as a professional financial institution, it has the advantages of facilitating investigation and preventing risks, and gives it a duty of care for prior rights to avoid conflicts of rights, which is in line with the principle of good faith and fairness.
Relevant legal provisions
Commercial Banking Law.
Article 36 For commercial bank loans, the borrower shall provide guarantees. Commercial banks shall conduct a strict examination of the guarantor's ability to repay, the ownership and value of the collateral and pledge, and the feasibility of realizing the mortgage or pledge.
General Rules for Loans. Article 27 Loan investigation: After accepting the borrower's application, the lender shall investigate the borrower's credit rating and the legality, safety and profitability of the loan, verify the collateral, pledge and guarantor, and determine the risk degree of the loan.
Case: (2022) Zui Gao Fa Min Zhong No. 87.
Wang Wen, lawyer.
His main practice areas are human resources, intellectual property, taxation, corporate governance, construction and real estate, finance, data security, personal information protection, and related civil and commercial matters** and criminal defense.
He is the author of two books and one translation.
Possess **, as well as performance agent qualifications.
The working languages are Chinese, Japanese and English.
E-mail: legalwangwen@163com