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为防范和解决购房者在商品房按揭贷款业务中的信贷风险问题,预购商品房抵押权预告登记经由预告登记制度派生而出,在实践中备受青睐并被广泛应用。然而,由于《物权法》及其司法解释等相关法律法规未对其性质和效力作明文规定,以致于学理上众说纷纭,各地法院的裁判结果也迥然不同甚至自相矛盾,司法公信力饱受质疑。厘清预告登记制度的性质以及效力,并以预购商品房抵押权预告登记能否办理正式的抵押权登记为视角进行类型化分析,或可确保该类型案件在适用上的统一性及实效性,助力于案件的妥适解决。
In order to prevent and solve the credit risk problem of home buyers in the real estate mortgage loan business, the pre-registration of advance mortgage of real estate is derived from the pre-registration system and has been widely used in practice. However, since the “Property Law” and its judicial interpretations and other relevant laws and regulations do not provide for the nature and effectiveness of the provisions of the text, which led to divergent views on the theory, the courts around the referee results are very different or even self-contradictory, the credibility of the judiciary was questioned. Clarify the nature and effectiveness of the advance notice registration system and make a type analysis based on the perspective of pre-registering the registration of the mortgage of real estate as a prelude to the registration of the mortgage of real estate, or ensure the uniformity and effectiveness of this type of case, Proper resolution of the case.