Legal analysis
According to the law, if the debtor or a third party mortgages the property to the creditor to guarantee the performance of the debt without transferring the possession of the house, the creditor has the right to be paid in priority for the property if the debtor fails to perform the due debt or realize the mortgage right according to the agreement of the parties. Where a mortgage right is established at the same time, the parties shall conclude a mortgage contract in written form, including the types and amount of secured creditor's rights, the time limit for the debtor to perform the debt, the name and quantity of the collateral, the scope of guarantee, etc. The scope of the mortgagee's priority is bound by the mortgage contract. When the mortgage conditions are fulfilled, if the debtor can pay off the debts or provide other guarantees, the mortgagee shall not be given priority in repayment of the mortgaged house. If the debtor fails to perform the due debt or realize the mortgage right according to the agreement of the parties, the mortgagee may request the court to auction the house and give priority to compensation for the proceeds. Banks can also apply to join and realize the mortgage right according to the order of compensation stipulated by law.
legal ground
Article 394 of the Civil Code of People's Republic of China (PRC) provides a guarantee for debt performance. If the debtor or the third party does not transfer the possession of the property and mortgage the property to the creditor, the debtor fails to perform the due debt or the creditor has the right to be paid in priority for the property. The debtor or the third party specified in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property that provides guarantee is the mortgaged property.
Article 400th of the Civil Code of People's Republic of China (PRC) establishes a mortgage, and the parties shall conclude a mortgage contract in writing. A mortgage contract generally includes the following clauses: (1) the type and amount of secured creditor's rights; (2) the time limit for the debtor to perform the debt; (3) The name and quantity of the mortgaged property. (4) Scope of guarantee.
In Article 401 of the Civil Code of People's Republic of China (PRC), the mortgagee and the mortgagor agreed that when the debtor fails to perform the due debts before the expiration of the debt performance period, if the mortgaged property belongs to the creditor, it can only be paid in priority according to law.
Article 392 of the Civil Code of People's Republic of China (PRC): If the secured creditor's right has both property and other people's guarantee, if the debtor fails to perform the due debt or the parties agree to realize the security interest, the creditor shall realize the creditor's right according to the agreement; If there is no agreement or the agreement is unclear, and the debtor provides the security of the property by himself, the creditor shall first realize the creditor's right on the security of the property; If a third party provides a guarantee for the property, the creditor may realize the secured creditor's right on the property, or request the guarantor to assume the guarantee responsibility. The third party providing the guarantee shall have the right to recover from the debtor after assuming the guarantee responsibility.