Article 184 The following properties may not be mortgaged:
(1) land ownership;
(2) collectively owned land use rights such as arable land, homesteads, self-reserved land and self-reserved mountains, except those that may be mortgaged as stipulated by the law;
(3) education facilities, medical and health facilities and other social public welfare facilities of institutions, social organizations and other organizations that serve public welfare purposes;
(4) properties whose ownership and use rights are unknown or disputed; and educational facilities, medical and health facilities and other social welfare facilities of institutions and social organizations for the purpose of public welfare;
(4) property whose ownership or right of use is unknown or disputed;
(5) property that has been seized, detained or supervised in accordance with the law;
(6) other property that may not be mortgaged as stipulated by laws and administrative regulations.
Explain that this article is about the prohibition of mortgage.
According to this article, the following properties may not be mortgaged:
(I) Land ownership
Land ownership includes the ownership of state-owned land as well as collectively owned land. At present, there is no provision in our law that ownership of state-owned land can be mortgaged. Collectively owned land is divided into agricultural land and construction land, agricultural land, in addition to the "four wasteland" contractual management rights, generally not allowed to mortgage, construction land in large quantities to be converted to state ownership by law. If the land ownership is allowed to mortgage, the realization of the mortgage, will inevitably bring about a change in the ownership of land, thereby violating the Constitution and the law on the land can only belong to the state or collective ownership, therefore, the land ownership shall not be mortgaged.
(B) arable land, residential land, self-reserved land, self-reserved mountains and other collectively owned land use rights
China is a large agricultural country, agriculture is the foundation of the national economy, and the arable land used to grow grain, cotton, oil, vegetables and other crops is the foundation of the foundation. At present, due to the national development and construction of the requisition of arable land and some units of illegal occupation of arable land, so that the number of arable land in our country decreases year by year. In order to implement the scientific concept of development and ensure sustainable economic and social development, stricter management measures must be taken to protect arable land and guarantee the sustained, stable and coordinated development of agriculture. Therefore, this law prohibits the mortgage of arable land.
Homesteads are essential to the lives of farmers and where they live. During the legislative process, there have been different opinions on whether the right to use the homestead can be mortgaged. Considering the current rural social security system has not yet been fully established, the right to use the residential base is the farmers' livelihood, from a national perspective, the transfer of the right to use the residential base and mortgage conditions are not yet mature. In particular, farmers have only one residence base per household, and rural residents who sell or rent their homes and then apply for a residence base are not approved, which is different from urban residents. Once a farmer loses his home and his homestead, he will be deprived of the basic conditions for survival, affecting social stability. In order to maintain the current law and the current stage of the country's rural land policy, this article prohibits the mortgage of land use rights within the occupied area of the residence base.
Homestead land, homestead mountain is the basic means of production of farmers as a means of livelihood security, with the nature of social security, from the protection of the fundamental interests of the majority of peasants, it is prohibited to homestead land, homestead mountain right to use mortgage.
(3) schools, kindergartens, hospitals and other public welfare institutions, social organizations, educational facilities, medical and health facilities and other public welfare facilities
Article 37 of the Guarantee Law stipulates that schools, kindergartens, hospitals, educational facilities, medical and health facilities shall not be mortgaged. During the legislative process of the Property Law, there were different opinions on this provision. Some believed that with the reform of the education system and the medical system, more and more private schools and hospitals have emerged. Private schools, kindergartens and hospitals, with little national investment and a large demand for financing, and with no property other than educational and medical facilities to serve as a guarantee for financing, can hardly meet the requirements by relying only on donations or the continued investment of the investors and other means of financing. Therefore, schools, kindergartens and hospitals should be categorized as public or private, and private schools and hospitals should be allowed to mortgage their educational facilities and medical and health facilities. Some proposals stipulate that the educational facilities and medical and health facilities of schools, kindergartens and hospitals may be mortgaged, but the nature and use of the schools and hospitals shall not be changed after the mortgage is realized.
After repeated study of the above opinions, the Property Law did not change the provisions of the Security Law for the following reasons: schools and kindergartens, whether public or private, are established for the purpose of social welfare. Article 3 of the Law on the Promotion of Private Education stipulates that the private education undertaking is a public welfare undertaking and is an integral part of the socialist education undertaking. The educational facilities of schools and kindergartens are used for teaching and educating people. If the mortgage of the educational facilities of schools is allowed, once the mortgage is realized, not only is it difficult to achieve the purpose of running the schools, but in serious cases, it may result in the students not being able to go to school, which will affect social stability. From the consideration of the future of the country and the nation, from the maintenance of social stability, and from the purpose of education, it should be prohibited to mortgage educational facilities. Hospitals are established for the purpose of ensuring public health and are also a public service. If mortgages on medical facilities are permitted, once the mortgages are realized, the public's access to and treatment of diseases will be affected, which will not be conducive to the protection of people's health. It should be noted that this article prohibits the mortgage of only educational facilities and medical and health facilities, such as teaching buildings, laboratories, teaching computers, laboratory equipment, hospital outpatient buildings, inpatient departments, X-ray machines, CT machines, laboratory equipment.
Besides schools, kindergartens and hospitals, other social welfare facilities are also not allowed to be mortgaged, such as public *** libraries, science and technology libraries, museums, national art museums, children's palaces, workers' palaces, homes for the elderly, and welfare foundations for the disabled, which are used for social welfare purposes.
(D) Property whose ownership or right of use is unknown or disputed
Property ownership is the right of the subject of the right to possess, use, gain and dispose of his own property in accordance with the law. The right of use of property is the right to use and benefit from the property in accordance with the law. If the ownership or use of a property is not clear, or even controversial, the mortgage may not only violate the legal rights of the owner or the right to use, but also may cause conflicts and disputes, making the social relations more disturbed. Therefore, the property whose ownership or right of use is unclear or disputed shall not be mortgaged.
(E) Seized, detained and supervised property
Seized and detained property means that the people's court or the administrative organ takes compulsory measures to seal the property on the spot or transport it to another place, and no one is allowed to possess, use or dispose of it. Property supervised in accordance with the law refers to property supervised and managed by administrative organs in accordance with the law. For example, the Customs Department, in accordance with the relevant laws and regulations, supervises the means of transportation, goods, baggage, postal articles and other articles entering and leaving the country. The inbound and outbound goods and articles that violate the provisions of the Customs Law and other relevant laws and regulations shall be detained. The legality of property that has been seized, detained or supervised in accordance with the law is in a state of uncertainty and cannot be recognized or protected by national laws. Therefore, it is prohibited to mortgage property that has been seized, detained or supervised in accordance with the law.
(F) Other properties which may not be mortgaged under the provisions of laws and administrative regulations
This is an underpinning provision. In addition to the property listed in the first five items of this article shall not be mortgaged, in the creation of the mortgage, but also to see whether other laws and administrative regulations prohibit the mortgage provisions.