建设部令第98号
颁布日期：20010815 　实施日期：20010815 　颁布单位：建设部

　　PART ONE　GENERAL PROVISIONS

　　Article 1　These Procedures are formulated¹ in order to strengthen administration of real property mortgages, to safeguard the order of the real property market, and to guarantee the lawful² rights and interests of parties to real property mortgages in accordance with the PRC, Administration of Urban Real Property Law and the PRC, Security Law.

　　Article 2　Any party that engage in the mortgage of real property on State-owned land in urban planning zones shall comply with these Procedures.

　　These Procedures shall not apply where there are no buildings (including structures, constructions or construction projects in progress) upon State-owned land with leaseholds⁴ that may be mortgaged.

　　Article 3　For the purposes of these Procedures, the term "real property mortgage" shall refer to an act undertaken by a mortgagor in order to provide, on the basis of the mortgagor's lawfully⁵ owned real property, a debt repayment⁷ guarantee to the mortgagee to the mortgage, on the condition that the ownership title to such real property will not be assigned in the process. Where the mortgagor fails to perform his debt repayment obligations, the creditor⁸ has the right, in accordance with the law, to put the mortgaged real property up for auction⁹ and shall have priority in receiving compensation from the proceeds thus obtained.

　　For the purposes of these Procedures, the term "mortgagor" shall refer to any citizen, legal person or other organization which, acting¹⁰ as the mortgagor himself or a third party, provides a debt repayment guarantee to a mortgagee on the basis of a piece of lawfully acquired real property.

　　For the purposes of these Procedures, the term "mortgagee" shall refer to any citizen, legal person or other organization which accepts a real property mortgage made by a mortgagor as a debt repayment guarantee.

　　For the purposes of these Procedures, the term "pre-purchased commodity housing loan mortgage" shall refer to an activity in which a home buyer, after paying the down payment of a stipulated¹² amount for the purchase of a house, is provided with a loan from a loaning bank to cover the remaining amount and mortgages his purchased commodity housing to the loaning bank as a loan repayment guarantee.

　　For the purposes of these Procedures, the term "construction project in progress mortgage" shall refer to an activity in which a mortgagor, in order to obtain a loan to provide the capital to continue his construction project, mortgages his lawfully acquired leaseholds and the assets already invested in the construction project to the loaning bank as a debt repayment guarantee, on the condition that ownership title to such project will not be assigned in the process.

　　Article 4　Where ownership rights to a lawfully acquired building are mortgaged, the leaseholds for such building within the area of its occupancy shall be mortgaged at the same time.

　　Article 5　A real property mortgage shall adhere to the principle of voluntariness, mutual¹³ benefit, fairness, honesty and trustworthiness.

　　A real property mortgage executed in accordance with the law shall be protected by State laws.

　　Article 6　The State shall implement¹⁴ a real property mortgage registration¹⁵ system.

　　Article 7　The administrative¹⁶ department of the State Council in charge of construction shall be the central authority in charge of administration of real property mortgages in cities throughout the whole country.

　　The administrative departments in charge of construction of provinces and autonomous¹⁷ regions shall collectively be the departments in charge of the administration of real property mortgages in cities which are within the jurisdiction¹⁸ of their respective administrative regions.

　　The administrative departments in charge of real property of the people's governments of municipalities directly under the central government, municipalities and counties (hereafter, "Real Property Administration Department(s)") shall be responsible for the administration of real property mortgages within the jurisdiction of their respective administrative regions.

　　PART TWO　ESTABLISHMENT OF REAL PROPERTY MORTGAGES

　　Article 8　The following types of real property may not be mortgaged:

　　1. real property of which the ownership is in dispute;

　　2. real property that is used for the benefit of public welfare such as education, public health, municipal administration;

　　3. other structures that are classified as protected cultural relics¹⁹ or which possess significant commemorative value;

　　4. real property that is lawfully announced for demolition²⁰;

　　5. structures that are sealed up, held, under government examination or subject to other kinds of restrictions²¹; and

　　6. other types of real property that may not be mortgaged in accordance with the law.

　　Article 9　Where the same piece of real property is mortgaged more than twice, the mortgagor shall inform the mortgagee of the circumstances regarding the previous mortgages.

　　The amount of a debt guarantee by the mortgagor shall not exceed the value of the mortgaged article.

　　Where following the mortgage of a piece of real property the value of the real property is higher than the debt guarantee, another mortgage may be secured. However, this second mortgage must not exceed the value of the remaining amount.

　　Article 10　Where a single mortgage is secured for more than two pieces of real property, the case shall be considered as one real property mortgage, unless the parties to such mortgage have agreed or arranged otherwise.

　　Article 11　Where the completed part of a construction project is mortgaged, the leaseholds thereto shall also be included in the mortgage.

　　Article 12　Where a piece of real property purchased under State preferential policies is mortgaged, the amount of the mortgage shall be limited in proportion to the amount that is under the disposal of, or the profit which may be obtained by, the owner of the real property.

　　Article 13　Where a piece of real property of which the power of operation and management is granted by the State to a wholly State-owned enterprise or institution legal person is mortgaged, the mortgage shall be in compliance²² with the relevant regulations on the administration of State-owned assets.

　　Article 14　Where a piece of real property which is owned by a collectively-owned enterprise is mortgaged, a resolution to that effect shall be adopted by the workers' (or representatives') congress of the collectively-owned enterprise. The resolution shall then be reported to the superior authority in charge of the enterprise for the record.

　　Article 15　Where a piece of real property which is owned by a Sino-foreign equity²³ joint²⁴ venture, a Sino-foreign co-operative joint venture or a wholly foreign-owned enterprise is mortgaged, a resolution to that effect shall be adopted by the board of directors, unless the articles of association of the enterprise stipulate¹¹ otherwise.

　　Article 16　Where a piece of real property which is owned by a limited liability company, or a company limited by shares is mortgaged, a resolution to that effect shall be adopted by the board of directors or by the shareholders²⁵' general meeting, unless the articles of association of the enterprise stipulate otherwise.

　　Article 17　Where a piece of real property which is owned by an enterprise with a limited period of operation is mortgaged, the time limit on the guaranteed debt may not exceed the period of operation of the enterprise.

　　Article 18　Where a piece of real property which has a limited period in land use is mortgaged, the time limit on the guaranteed debt may not exceed the period of land use as stipulated in the leasehold³ sale contract minus the period for which it has already been in use.

　　Article 19　Where a piece of real property which is jointly²⁶ owned is mortgaged, the mortgagor shall first seek the consent of the other joint owners in writing.

　　Article 20　Where pre-purchased commodity housing is mortgaged for loans, such commodity housing development projects shall be in compliance with required real property assignment conditions and an commodity housing advanced sale permit shall be obtained.

　　Article 21　Where a piece of real property which is already rented is mortgaged, the mortgagor shall inform the mortgagee of the circumstances regarding the rental²⁷, and notify the lessor of the circumstances regarding the mortgage. The original leasing contract shall continue to be valid²⁸.

　　Article 22　Where a mortgage is secured for a piece of real property, the value of the mortgage may be determined²⁹ by the parties to such mortgage through negotiation³⁰ or by appraisal³¹ undertaken by a real property appraisal organization.

　　The above clause shall prevail unless laws and regulations stipulate otherwise.

　　Article 23　Where the parties to a mortgage agree to buy insurance for the mortgaged real property, the mortgagor shall buy insurance for such piece of mortgaged real property and the insurance costs shall be borne by the mortgagor. After the mortgaged real property is insured, the mortgagor shall hand over the insurance policy to the mortgagee for safe custody³². The mortgagee shall be the first beneficiary to receive any insurance compensation within the mortgage period.

　　Article 24　Where an enterprise or institution legal person splits up its business or merges³³, the original mortgage contract executed by it shall continue to be valid. The restructured legal person shall enjoy and bear the rights and obligations under the mortgage contract.

　　Where a mortgagor dies or is declared dead or missing in accordance with the law, the legitimate³⁴ inheritor or a trustee shall continue to perform the original mortgage contract.

　　PART THREE　CONCLUSION OF A REAL PROPERTY MORTGAGE CONTRACT

　　Article 25　The parties to a mortgage shall execute a mortgage contract in writing for the mortgage of any real property.

　　Article 26　A real property mortgage contract shall specify³⁵ the following main contents:

　　1. names or individual names, and places of residences of mortgagor and mortgagee;

　　2. principal types of creditors³⁶' rights and the amount involved;

　　3. location, name, conditions, floor area of the structure, land use area and access regarding the four boundaries, etc., of the mortgaged real property;

　　4. value of the mortgaged real property;

　　5. name of the occupier and manager of the mortgaged real property, the manner of occupancy and the mode of management, occupancy and management responsibilities and liabilities in respect of any accidental damage, destruction and losses;

　　6. time limit on debtor³⁷'s clearing of the debt;

　　7. conditions governing nullification of the creditor's rights;

　　8. liability for breach³⁸;

　　9. dispute resolution methods;

　　10. date and place of execution of the mortgage contract; and

　　11. other matters as agreed by both parties.

　　Article 27　Where pre-purchased commodity housing is mortgaged, a valid advanced commodity housing purchase contract shall be produced.

　　Article 28　Where a mortgage involves construction projects in progress, the mortgage contract shall also specify the following contents:

　　1. the document numbers of the State-owned Leaseholds Certificate, the Construction Land Planning Permit and the Construction Project Planning Permit;

　　2. the amount paid or payable³⁹ for assignment of leaseholds;

　　3. the amount invested in any construction projects in progress;

　　4. the progress of construction and the date of completion; and

　　5. the amount of work and the number of projects completed.

　　Article 29　Where a mortgagee wishes to insure the mortgaged real property or, after execution of the mortgage, wishes to impose any restrictions on the mortgagor in respect of renting, assignment of the mortgaged real property, or alteration⁴⁰ of the method of use of the real property, the parties to the mortgage shall specify such conditions in the mortgage contract.

　　PART FOUR　REAL PROPERTY MORTGAGE REGISTRATION

　　Article 30　Within 30 days of signing the real property mortgage contract, the parties to a mortgage shall register the mortgaged real property with the Real Property Administration Department at the place where the real property is located.

　　Article 31　A real property mortgage contract shall become valid upon registration.

　　Article 32　The following documents shall be submitted for examination during the registration of a real property mortgage:

　　1. the identification certification of the parties to the mortgage and the legal person status certification;

　　2. the application form for mortgage registration;

　　3. the mortgage contract;

　　4. the State-owned Leaseholds Certificate, Certificate of Rights of Building or Certificate of Real Property Rights; where the building is jointly owned, a Certificate of Common Ownership of a Building and other documentary evidence demonstrating the other joint owner's agreement to the mortgage shall be produced;

　　5. certificates and other supporting materials which can prove that the mortgagor has the right to secure a mortgage;

　　6. materials which can affirm the value of the mortgaged real property; and

　　7. other documents which the registration authorities consider necessary.

　　Article 33　The registration authorities shall examine and verify the application made by an applicant⁴¹, and where ownership may clearly be ascertained⁴² and all the necessary documents are provided, shall decide whether to grant registration within seven days from the date of registration. Where registration is not granted, they shall notify the applicant in writing.

　　Article 34　Where a piece of real property for which a building ownership certificate has been obtained in accordance with the law is mortgaged, the registration authorities shall record the additional types of ownership on the original Certificate of Rights of Building, which shall subsequently be kept by the mortgagor. A Certificate of Other Rights of Building shall be issued to the mortgagee.

　　Where pre-purchased commodity housing or pre-purchased commodity housing currently under construction is mortgaged, the registration authorities shall specify the circumstances on the mortgage contract. Where construction of the mortgaged real property is completed during the period of mortgage, the parties concerned shall, following acquirement of a real property ownership rights certificate by the mortgagor, undertake a new mortgage registration.

　　Article 35　Where a mortgage contract is to be revised or a mortgage relationship terminated, the parties to the mortgage shall, within 15 days from making a revision or termination, register the revision or cancel the registration with the original registration authorities.

　　Where leaseholds and ownership rights to buildings and other related structures are obtained due to disposal of mortgaged real property in accordance with the law, the parties to the mortgage shall, within 30 days from the date the disposal becomes effective, apply for registration of transfer of ownership rights to buildings at the Real Property Administration Department of the local people's government above the county level. They shall also apply to register an alteration of leaseholds at the land administration department of the people's government at the same level by producing an amended⁴³ Certificate of Rights of Building.

　　PART FIVE　OCCUPANCY AND ADMINISTRATION OF MORTGAGED REAL PROPERTY

　　Article 36　Mortgaged real property shall be occupied and managed by the mortgagor.

　　During the mortgage period when the mortgagor has the right to occupy and manage the mortgaged real property, the mortgagor shall safeguard the mortgaged real property from any damage and maintain it. The mortgagee has the right to examine and inspect the management of the mortgaged real property in accordance with the mortgage contract.

　　Article 37　Mortgage rights may be assigned along with the creditor's rights. A mortgage rights assignment contract shall be executed for the assignment of mortgage rights. Registration of any alteration of mortgage rights shall also be undertaken. Following the assignment of mortgage rights, the original mortgagee shall inform the mortgagor of the circumstances.

　　Provided the mortgagee agrees, the mortgaged real property can be assigned or leased.

　　Proceeds obtained from assignment or lease of the mortgaged real property shall be paid to the mortgagee ahead of the scheduled date to pay off the mortgage. Where the proceeds obtained exceed the mortgaged sum the outstanding amount shall be kept by the mortgagor. Where the proceeds obtained are less than the mortgaged amount, the debtor shall be liable for the difference.

　　Article 38　Where, owing to the needs of State construction, a piece of mortgaged real property is to be demolished⁴⁴ and removed, the mortgagor shall promptly⁴⁵ notify the mortgagee in writing of the circumstances. Both parties to the mortgage may secure anew the mortgage for the mortgaged real property. They may also settle the debts and credits in accordance with the law and terminate the mortgage contract.

　　Article 39　Where, during a mortgagor's occupancy or management, a piece of mortgaged real property suffers any damage or losses, the mortgagor shall promptly notify the mortgagee of the circumstances, and shall undertake measures to prevent the damage and losses from escalating⁴⁶. Where a piece of mortgaged real property suffers any damage or losses due to acts of the mortgagor, and the value of the mortgaged real property diminishes to a level that is no longer sufficient to act as guarantee for repayment of the debt, the mortgagee has the right to request the mortgagor to provide a new guarantee or contribute a further guarantee to cover the difference.

　　Where a piece of mortgaged real property devalues not owing to any fault of the mortgagor, the mortgagee may only request the mortgagor to provide a guarantee within the amount of compensation paid for damages. The value of the mortgaged real property after devaluation shall still be held as a guarantee for debt payment.

　　PART SIX　DISPOSAL OF MORTGAGED REAL PROPERTY

　　Article 40　The mortgagee has the right to request disposal of the mortgaged real property under any one of the following circumstances:

　　1. The period of debt payment matures, but the mortgagee is still not fully⁶ recompensed, and the debtor has not reached an agreement on extending the debt payment period with the mortgagee;

　　2. In the event that the mortgagor dies or is declared deceased and no representative will act on his behalf to repay the debt upon maturity⁴⁷, or where the legitimate inheritor or beneficiary of the mortgagor refuses to repay the debt upon maturity;

　　3. The mortgagor has announced its dissolution and bankruptcy⁴⁸ in accordance with the law;

　　4. The mortgagor is in breach of the relevant provisions of these Procedures and disposes of its mortgaged real property without authorization⁴⁹; or

　　5. Other circumstances as stipulated in the mortgage contract.

　　Article 41　Where one of the circumstances as specified⁵⁰ in Article 40 of these Procedures is exhibited, the parties to the mortgage may, through consultation⁵¹, dispose of the mortgaged real property by such lawful means as auction. Where the parties to the mortgage have failed to reach an agreement, the mortgagee may institute proceedings⁵² in a people's court.

　　Article 42　Where a mortgagee wishes to dispose of a piece of mortgaged real property, he shall notify the mortgagor in advance in writing. Where the mortgaged real property is jointly owned or is rented, he shall notify the other joint owners or the lessee⁵³ in writing at the same time. Joint owners or the lessee shall enjoy the same privilege of having priority in buying the real property in accordance with the law.

　　Article 43　Where a piece of real property is mortgaged more than twice, debt repayment shall be made in light of the order of mortgage registration.

　　Article 44　Where mortgaged real property is to be disposed of, new buildings constructed on the land and the mortgaged assets may be disposed of jointly in accordance with the law. The mortgagee shall have no priority of receiving payment from the income obtained from disposal of new constructions.

　　Article 45　When disposing of the leaseholds for mortgaged real property that were obtained by State allocation, inclusive of the buildings constructed thereon, the income obtained shall first be used in payment of the leaseholds assignment fee. Only after the fee is paid up can the mortgagee enjoy the priority of receiving payment.

　　Where laws and regulations have other stipulations, such laws and regulations shall prevail.

　　Article 46　Disposal by the mortgagee of a piece of mortgaged real property shall be terminated under any one of the following circumstances:

　　1. the mortgagee requests termination;

　　2. the mortgagor has demonstrated its willingness to perform its obligation on debt repayment and has shown that it is able to complete payment on time, and the mortgagee has given its consent;

　　3. it is found that ownership title to an auctioned⁵⁴ mortgaged structure is in dispute;

　　4. the mortgaged real property is involved in a lawsuit⁵⁵ pending⁵⁶ adjudication; or

　　5. other circumstances which necessitate⁵⁷ termination.

　　Article 47　Income obtained from the disposal of mortgaged real property shall be distributed according to the following order of priority:

　　1. payment for any expenses incurred⁵⁸ from the disposal of mortgaged real property;

　　2. deduction⁵⁹ of tax arising from the mortgaged real property;

　　3. repayment of debt principal plus interest and any penalty for breach of contract to the mortgagee;

　　4. compensation made by the debtor to the mortgagee for any damages suffered by the mortgagee owing to the breach of contract; and

　　5. the remaining amount shall be returned to the mortgagor.

　　Where income obtained from the disposal of mortgaged real property is insufficient⁶⁰ for the payment of debt, or penalty for breach of contract and compensation, the mortgagee has the right to pursue the debtor for the outstanding amount.

　　PART SEVEN　LEGAL LIABILITY

　　Article 48　Where a mortgagor is found to have concealed⁶¹ such circumstances regarding the mortgaged real property, for example, that it is jointly owned, is involved in a property rights dispute, is sealed up, held or under government examination, the mortgagor shall bear any liability thus arising.

　　Article 49　Where a mortgagor sells, leases, exchanges, gives away or uses other methods to dispose of its mortgaged real property without authorization, such acts shall be considered invalid⁶². Where a third party suffers any losses as a result, the mortgagor shall be liable for compensation.

　　Article 50　In the event a dispute arises in respect of the performance of the mortgage contract or the disposal of mortgaged real property by the parties to a mortgage, the parties may settle the dispute by consultation. Where consultation fails to resolve the dispute, the parties to the mortgage shall apply for arbitration⁶³ by an arbitration authority in accordance with a mutually agreed arbitration agreement. Where there is no arbitration agreement, the parties concerned may institute proceedings directly in a people's court.

　　Article 51　Where, owing to the needs of State construction, a piece of mortgaged real property is to be demolished and removed and the mortgagor is found to be in breach of the afore-mentioned Article 38, that is, he has not settled the debts and credits in accordance with the law, nor has he secured a new mortgage in respect of the mortgaged real property, the mortgagee may institute proceedings in a people's court.

　　Article 52　Where it is found that personnel of the registration authorities have perpetrated dereliction of duties, abused their power, taken advantage of their position, have solicited⁶⁴ financial gains from others, or have illegally accepted bribes⁶⁵ from others in order to advance these people's interests, administrative penalty shall be imposed on such personnel in accordance with the law. Where the act constitutes a criminal offence, criminal responsibility shall be assessed in accordance with the law.

　　PART EIGHT　SUPPLEMENTARY⁶⁶ PROVISIONS

　　Article 53　Real property mortgages undertaken within State-owned land outside urban planning zones shall refer to these Procedures for implementation⁶⁷.

　　Article 54　The administrative department of the State Council in charge of construction shall be responsible for the interpretation⁶⁸ of these Procedures.

　　Article 55　These Procedures shall be effective as of 1 June 1997.

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