论未办理抵押登记时不动产抵押合同的效力——兼评《〈民法典〉担保司法解释》第46条

当事人订立抵押合同的目的在于设立抵押权,未办理抵押登记的抵押合同无法在当事人之间产生设立保证或者其他非典型担保的效力。抵押人未按照约定办理抵押登记时的违约损害赔偿责任采用严格责任原则,其违约损害赔偿的范围限于债权人未从债务人处获得清偿的债权数额,同时,该责任受到当事人约定的担保范围、抵押权能够设立时抵押人应当承担的责任范围以及违约责任减轻规则的限制。抵押人未办理抵押登记的,债权人有权选择请求抵押人承担继续履行的责任与违约损害赔偿责任,并有权选择请求债务人或者抵押人承担责任。

On the Effectiveness of Real Estate Mortgage Contract without Mortgage Registration

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.