Elimination Of Leasehold In Civil Execution

With continuous development of China's market economy in recent years,rent after mortgage has become a very popular way to meet the dual needs of financing and gaining profit in economic life,especially for real estate such as houses.In general,due to the pursuit of the exchange value of the guaranty,while the leasehold focus on the use value of the lease,so they can coexist without compromise.However,if the mortgagee intends to realize the mortgage to ensure the priority of the claim,the conflict between the leasehold and the mortgage is inevitable.Most of current theoretical researches explore the relationship between mortgage and leasehold through substantive law,but seldom pays attention to this issue from the perspective of procedural law.Civil implementation seems to be incapable to solve the frequent occurrence of mortgage and leasehold conflicts.Therefore,it is very critical and valuable for both theoretical research and judicial practice that combing with the relevant legal provisions and theoretical research results of the substantive law and the procedural law to solve the problems that may be encountered in the process of eliminating the leasehold in civil execution.The author's work is divided into four sections,general contents are as follows:In the first section,the author puts forward the problems to be discussed.By introducing four typical cases,it finds that under the circumstance of rent after mortgage,the executive judge's different understanding of value orientation conveyed by the current law leads to different opinions on the necessity of eliminating the leasehold.The judicial practice is also doubtful in those topics: how to judge the leasehold after the establishment of the mortgage,how to judge the leasehold affects the realization of the mortgage,who is the appropriate subject of starting procedure of eliminating the leasehold and so on.And it is also ambiguous on how to protect the interests of the lessee after eliminating the leasehold.In the second section,the author focuses on the normative interpretation and theoretical controversy of eliminating the leasehold when the mortgage is realized.By combing the existing relevant judicial interpretations in our country,it presents two different opinions.In the meantime,there are two theoretical differences in the second sentence of Article 190 of the Property Law.Therefore,in this section,the author attempts to explain the existing relevant laws and regulations to clarify the specific intent of "no confrontation" in the secondsentence of Article 190 of the Property Law.Which should be interpreted as "the leasehold can not has a negative impact on the registered mortgage" to seek the consensus of value within the reasonable extent.And by establishing the conflict-solving rules for the party's autonomy and interest measurement,in order to solve the problem that whether leasehold must be eliminated when the mortgage is realized.In the third section,the author produces judgment criterion and procedural issues of eliminating the leasehold in civil execution.The core of this section is from the perspective of the civil procedure to discuss how the court eliminate the leasehold by the reasonable judgment and normative operation.Firstly,comparing with "the theory of contract establishment" and "the theory of contract registration","the theory of tenant possession" is more suitable as the criterion to judge the priority of the leasehold and mortgage.Meanwhile,the author suggests China should improve the publicity method of real estate leasehold stipulated by law.Secondly,comparing with "the method of the first fixing" and "the method of the double quotation",the author suggests that enforcement practice should continue using the "the method of evaluating the price" to judge whether the leasehold has a negative impact on the realization of the mortgage.Thirdly,based on the spirit of the principle of party's autonomy and the principle of party's disposition,the author suggests that the launching body of the elimination procedure is the mortgagee and the court can not initiate it according to its own authority.Fourth,based on the basic situation that the executive procedural of our country has not strictly implemented the principle of separation of trial and execution,it is necessary to explicate that the execution agency of court can tail the substantive issues from the formal.In the last section,the author introduces the interests protection of the lessee after eliminating the leasehold in civil execution.This section distinguishes the two different situations that the lessee approves and refuses to accept the decision of eliminating the leasehold to discuss the lessee's interests protection.Firstly,the decision of eliminating the leasehold only leads to the exclusion of confrontation,so leasing contract continues to be valid between the mortgagor and the lessee after eliminating the leasehold.Based on the system and realistic predicament of querying the registration information of real estate in our country,and the principle of good faith,the author thinks that the Article 66(2)of the Interpretation of Security Law still has applicable value.Because elimination of leasehold leads contract can not be fulfilled,the lessee may request the mortgagor who fails to fulfillwritten notice of obligation to assume the liability for damages after the lease contract is lifted.In addition,due to various factors such as comprehensive interest measurement and appropriate implementation,the author suggests that the court should allow the lessee to vacate the leased property in order to realize the reasonable protection of the lessee's interests.Secondly,the remedy procedure for the right of the lessee to refuse to accept the decision of eliminating the leasehold can be a lawsuit or a review procedure.