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[Profiles] October 31, 1995, Company A, ground floor trade center as decoration.B signed two loan contracts with banks, the banks agreed to lend B : A company 6.1 million yuan.1 million dollars.10.98% interest rate on renminbi deposits in dollar borrowing to 7.2% annual interest.Loan period of four months, five months.The two sides also signed two mortgage contract, agreed :A company with the underground trade center (area 10,000 square meters) owned by the management and leasing rights to these two borrowers for collateral.B signing day in three banks in the company to a 6.1 million yuan and 100 million dollar loan.After the expiration of the borrowing,B banks recover 113862.60 yuan and dollar interest 11243.84 yuan.To September 20, 1997, a principal of the company to B 6.1 million yuan in bank borrowings.U.S. dollars 100 million of interest 1726128.3 yuan, the dollar 146860.28 yuan.B Banks litigation.Another known underground business : City (area 11,178 square meters), the construction of underground facilities is the city government departments.In the construction process, a C Company, the predecessor company had invested about 50 million yuan in buildingTo this end the city government departments have issued a document in 1993 : the facility to determine the property owned by the State.A long-term use of some companies to invest in construction management, leasing rights.Municipal government departments to the long-term management of the city's underground trade.rental right now because the transfer of rights and obligations to others who fail to perform the exercise, will agree.A [court],A defendant in the judgment within 10 days after the entry into force of a bank loan to repay the principal plaintiff B 6.1 million yuan.1 million dollars, the payment of interest 1726128.3 yuan.dollar 146860.28 yuan (interest up to September 20, 1997).in effect to the judgment interest calculated by the two sides agreed in the contract.Second, a company if it fails to comply with the defendant.A mortgage company in the city's underground business interests from discount or auction.Usufruct change from the purchase price of just B bank.[Legal] case analysis of the substantive issues in dispute,A company with its underground trade center on the management and leasing rights to B as a bank loan collateral.it is legitimate and effective.Contract secured the agreement of the parties in this case, is a subject of underground commerce company enjoys the long-term management rights, the right of rental,Department of Usufruct.Usufruct, others refer to the material in a certain range, the proceeds have to limit property rights.Usufruct mortgage can become the object of the issue is a controversial theory.How to determine the right to object in the collateral issue, not only from the front of China's Security Law provides collateral property.but not from the negative provisions of the collateral property."Guarantee Law," the 34th of the following property as collateral :(1) of housing mortgages and other ground were all set; (b) the collateral for all machinestransport and other property; (c) the collateral according to the law, the power to dispose of state-owned land use right,Housing and other ground set; (4) Mortgage according to the law, the power to dispose of state-owned machinestransport and other property; (5) collateral according to the law, the contractor agreed to issue contracts secured by the barren mountains, Huanggoushan, BI,coordination with the land use rights and other wasteland; (6) according to the other assets as collateral.Article 37 provides that the following shall not be mortgaged property : (i) land ownership; (2) of farmland, and spending, private plot.Hill retained the right to collective ownership of land use, but this method is section 34 (5).except for the provisions of article 36, paragraph 3; (c) schools, kindergartens, hospitals and other institutions with a public purpose.community groups educational facilities, health facilities and other social welfare facilities. (d) ownership,use unknown or disputed property; (5), was closed down by law, seized control of the property;(6) the other property collateral is not lawful.From the foregoing we can see that other interests can become the object of mortgage can not be generalized.This case, the underground business of a company enjoys the long-term management and leasing,will be able to bring benefits to the rights of property rights, the exercise of rights guaranteed debt entirely fulfill the objective can be achieved.Usufruct for such mortgages, the ban does not violate the law, nor will it harm the country.social and public interests and the legitimate rights and interests of other persons, in accordance with the spirit of private law, the mortgage contract as a legal contract.But other interests, after all, he is a right, which is used for the interests of unsecured property, the consent of the owner's consent.Parties took note of this case.Underground business because of the city's ownership of the collateral Usufruct transfer.Mortgage Contract signed by the parties in this case had no collateral property registration, it is easier to trigger risk.Because of the "Guarantee Law" stipulates that the parties have not registered, not against a third person,Usufruct if a third person for a mortgage on property registration, then B's mortgage banks could come to nothing.
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