論未辦理抵押登記時不動產抵押合同的效力——兼評《〈民法典〉擔保司法解釋》第46條

On the Effectiveness of Real Estate Mortgage Contract without Mortgage Registration

"當事人訂立抵押合同的目的在於設立抵押權,未辦理抵押登記的抵押合同無法在當事人之間產生設立保證或者其他非典型擔保的效力。抵押人未按照約定辦理抵押登記時的違約損害賠償責任採用嚴格責任原則,其違約損害賠償的範圍限於債權人未從債務人處獲得清償的債權數額,同時,該責任受到當事人約定的擔保範圍、抵押權能夠設立時抵押人應當承擔的責任範圍以及違約責任減輕規則的限制。抵押人未辦理抵押登記的,債權人有權選擇請求抵押人承擔繼續履行的責任與違約損害賠償責任,並有權選擇請求債務人或者抵押人承擔責任。"

"The purpose of the parties to conclude a mortgage contract is to establish a mortgage. A mortgage contract without mortgage registration cannot produce the effect of setting suretyship or other atypical guarantee between the parties. The principle of strict liability should be adopted when the mortgagor fails to register the mortgage according to the agreement. The scope of the mortgagor’s liability for damage of breaching contract is limited to the amount of creditor’s rights that has not gotten paid off from the debtor. At the same time, this liability is limited by the scope of guarantee agreed among the parties, the required liability of mortgagor based on the assumption that the mortgage was validly established, and the general rule of liability for breach of contract. If the mortgagor fails to register the mortgage, the creditor has the right to choose to request the mortgagor to bear the liability of continuing to perform the contract and the liability for damages for breach of contract, and has the right to choose to request the debtor or the mortgagor to bear the liability."