Can the land requisitioned for public facilities be mortgaged?

Case comment: A municipal engineering construction limited liability company went to the city real estate trading center to register the mortgage loan of state-owned land use right. After approval, the mortgaged land area is 65,438+06,884 square meters, and the land use type is transfer. The original transfer price is 654.38+065.438+036 million yuan, and the current mortgage loan amount is 7.6 million yuan, and the land use procedures are complete. According to the site survey, this plot is a place for stacking large-scale construction equipment and facilities. Opinions vary on this special-purpose plot, and the staff of the city real estate trading center are extremely cautious. After consulting a large number of relevant laws and regulations, they have different opinions when handling mortgage registration. One view is that according to the third paragraph of Article 184 of the Property Law and the third paragraph of Article 37 of the Guarantee Law, public welfare facilities such as educational facilities and medical and health facilities of public welfare institutions and social organizations such as schools, kindergartens and hospitals cannot be mortgaged, so it is impossible to handle mortgage registration procedures for the company. Another point of view is that the parcel is a land for transfer, and the transfer fee has been paid in full and the legal state-owned land use right certificate has been obtained. According to the second paragraph of Article 48 of the Urban Real Estate Management Law, the land use right obtained by transfer can be mortgaged; Article 49 stipulates that real estate mortgage shall be handled with land use right certificate and house ownership certificate. According to Article 36 of Chapter 5 of Regulations on the Administration of Assignment and Transfer of Urban State-owned Land Use Rights in Henan Province, users who acquire land by assignment or transfer may mortgage the land use rights to financial institutions or other creditors. At the time of mortgage, the state-owned land use certificate, land use right transfer or transfer contract and other relevant documents should be handed over. So this land can be registered as a mortgage. Author's point of view The author believes that land mortgage is a kind of security interest and also a kind of other rights of land. After the land is mortgaged, the land as the subject matter will not be transferred, but it will still be occupied and used by the original user, and only certain rights (such as ownership and use right) representing its economic value will be used as a guarantee. Although the parcel is for public facilities, traditionally, public facilities are mostly obtained by allocation, which is naturally not suitable for mortgage. However, the parcel was acquired by means of transfer, and the land use right holder paid the corresponding consideration and had the right to finance with his own assets. Moreover, the land use right holder is a limited liability company, which implements the tax system and financial accounting system of the enterprise, is a profit-making enterprise legal person, not a public institution or social organization for the purpose of public welfare, and is not the adjustment object of Article 37 of the Guarantee Law. You can make better use of the economic benefits of the land after handling the mortgage loan. And because the parcel is now used for stacking equipment, even if it is mortgaged, it will not affect the national economy and people's livelihood. Therefore, the author agrees with the second opinion and goes through the land mortgage formalities for it. (Author: Jiaozuo Municipal Bureau of Land and Resources, Henan Province)