A: No, private schools, hospitals and other units want to mortgage financing and apply for mortgage registration with the right to use state-owned construction land. Whether these lands can be mortgaged or not, and whether they can be registered as mortgages, the land registration agencies have doubts.
Item 3 of Article 37 of China's Guarantee Law and Item 3 of Article 184 of China's Property Law explicitly prohibit the mortgage of "educational facilities, medical and health facilities and other public welfare facilities of schools, kindergartens, hospitals and other institutions and social organizations". In practice, there is no objection to the stipulation that public schools and hospitals are not allowed to mortgage, but some people hold different views on the stipulation that private schools and hospitals are not allowed to mortgage. They believe that the land of private schools, hospitals and other units is generally acquired through allocation, not allocation, so mortgage should not be restricted; In addition, they believe that private schools and hospitals are generally enterprise legal persons established in accordance with the law and registered in the industrial and commercial registration department, implementing corporate tax policies and financial accounting systems, and are profit-making enterprise legal persons, not public welfare institutions or social organizations, so they do not belong to the provisions of Article 37, paragraph 3, of the Guarantee Law and Article 184, paragraph 3, of the Property Law.
The author believes that the land for educational facilities, medical and health facilities and other public facilities in private schools, hospitals and other units, whether acquired by allocation or allocation, and whether these units are registered as institutions, social organizations or companies, shall not be mortgaged. According to the first paragraph of Article 3 of the Law on the Promotion of Private Education in China, "Private education belongs to public welfare undertakings", private schools also belong to public welfare institutions. According to Article 3 of the Regulations on the Administration of Medical Institutions, medical institutions should aim at saving lives, preventing diseases and serving citizens' health. Therefore, hospitals, whether public or private, should also aim at social welfare. According to the interpretation of People's Republic of China (PRC) Property Law compiled by the NPC Law Committee, the main purpose of the prohibition of mortgage of these lands in Item 3 of Article 184 of the Property Law is to ensure the safety and stability of the property of public welfare institutions such as schools and hospitals, so as to protect public interests and maintain social stability and harmony.
However, if private schools and hospitals mortgage the land other than the land used for social welfare facilities such as educational facilities and medical and health facilities, the land registration agency may handle the mortgage registration. Because Article 53 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) stipulates: "If schools, kindergartens, hospitals and other institutions and social organizations use property other than their educational facilities, medical and health facilities and other public welfare facilities as collateral for debts, the people's court may determine that the mortgage is valid." According to this judicial interpretation, when handling mortgage registration, the land registration agency should pay attention to the fact that the scope of mortgaged land can only be limited to the land occupied by social welfare facilities such as educational facilities, medical and health facilities, and schools and hospitals can only use these land to set mortgages for their own debts and cannot provide guarantees for others.