抵押合同作為負擔行為的雙重效果

未經抵押登記的不動產抵押合同不能依法律行為轉換理論轉換為連帶責任保證合同。雖未辦理抵押登記，但抵押合同作為負擔行為已經發生效力。該合同具備雙重效果。一方面，債權人有權請求抵押人辦理抵押登記，借此設立抵押權。另一方面，主債務屆期未受清償時，債權人有權請求抵押人以抵押物變價所得價款清償主債務。此項請求權並非擔保物權，僅為相對性擔保權，不得對抗第三人。包含此項請求權的抵押合同可被作成賦予強制執行效力的公證債權文書。

The real estate mortgage contract without mortgage registration should not be converted into joint liability guaranty contract according to the theory of legal act conversion. Although the mortgage registration has not been done, mortgage contract has already come into force as an Obligation-Act with dual legal effects. Firstly, the creditor is entitled to request the mortgager to establish mortgage right through registration. Secondly, when the principal debt is not paid off by the debtor on the appointed date, the creditor is entitled to request the mortgager to pay off the principal debt with the money obtained from the sale of the guarantee. Such right of the creditor is not a real right, but a relative right of security without effect against the third party. A mortgage contract containing such right can be made into notarial obligatory right document with compulsory execution effect.