On Protection Of House Buyers’ Creditor’s Rights In The Bankruptcy Of Real Estate Development Enterprises

Bankruptcy cases of real estate enterprises involve the interests of a kind of important oblige e,the buyer.For the reason of protecting the interests of the special interest groups,the Supreme People’s court has carried out policy protection on the buyer’s creditor’s rights in the relevant judicial interpretation and reply.However,due to the large number of oblige es involved in the buyer’s claims,the situation is complex,and there is no relatively perfect legal system in the legal system to provide clear provisions for the protection of the buyer’s claims.Only relying on judicial interpretation and judicial provisions to protect the buyer’s claims,the lack of relevant theoretical support,appears too thin and one-sided,and easily leads to confusion in judicial practice.First of all,there are conflicts between the creditor’s rights of the buyer and other creditor’s rights in bankruptcy cases,such as construction project price,mortgage,etc.the current law does not provide a good way to solve the conflicts.Although according to the provisions of judicial documents,it can ensure that part of the buyer’s creditor’s rights will not be lost,and it has a certain practical significance,but its provisions and the current law,such as the guarantee law 《 The enterprise bankruptcy law is contrary to each other,which leads to theoretical and legislative disputes.To a certain extent,the notice registration system provides a system guarantee for the protection of the creditor’s rights of the buyer,but neither the quasi real right nor the creditor’s right theory of the notice registration can play a role in the bankruptcy proceedings,so the notice registration system is insufficient to protect the creditor’s rights of the buyer.The view that the relevant commercial housing is excluded from the scope of bankruptcy property does not need to go through the formalities of property right transfer,but it needs to have actually delivered this condition.The nature of the right is of great significance to the exercise of the right.Therefore,the accurate definition of the legal nature of the buyer’s creditor’s right is related to whether it can be correctly exercised,and also has an important impact on its repayment order in bankruptcy creditor’s right.Although the essence of the buyer’s creditor’s rights is creditor’s rights,there are different views on the legal nature of the buyer’s creditor’s rights,such as the right of recall,quasi real right,legal mortgage,priority and so on.Among them,the view of legal mortgage is more reasonable,in line with the current legal theory.In practical cases,there are also problems in the treatment of the buyer’s claims.Because there is no formal law(the law approved by the National People’s Congress)to clearly protect the creditor’s rights of buyers,the legal support for special protection of the creditor’s rightsof buyers in such bankruptcy cases is insufficient.In judicial practice,there are different understandings about the protection of the buyer’s debt in the bankruptcy cases of real estate development enterprises which usually involve the buyer’s debt.The main reason is that the legal theoretical basis of priority compensation for the buyer is not clear,and the relevant provisions are relatively vague,which leads to differences in understanding.Therefore,in order to improve the protection of the buyer’s creditor’s rights,we should improve the system.The first is the legislative level.The priority of the buyer should be included in the law.Secondly,in the judicial aspect,we should regulate the applicable legal standards of the buyer’s priority of compensation in the form of judicial interpretation.First,we should make clear the main body of the buyer’s debt.At present,the disputes on the protection of the creditor’s rights of the house purchasers mainly involve the effectiveness of paying off the debts with houses,the settlement of the conflicts with the mortgage and the contents of the reply of the Supreme People’s Court on the priority of the payment of the construction project price(hereinafter referred to as the reply).Most of these disputes have one thing in common,that is,which of the house purchasers’ creditor’s rights should be protected in the end.The provisions of the reply are not enough to clearly define the main body of the purchase consumers in its application.In theory,any relative person who conducts real estate transactions with real estate developers can be called "buyers".Among these buyers,there are natural persons and legal persons.Some of them buy houses for living,some for investment,and some for business purposes.Therefore,the eligible buyers whose claims are protected should be determined in combination with the nature of the relevant real estate,the nature of the natural person of the buyer,the purpose of the purchase,whether to sign the purchase contract and register.Second,it is necessary to clarify the scope of the rights of the creditor’s rights of the protected buyers.According to the provisions of the reply and other judicial interpretations,at present,the rights of the purchasers with different payment proportions are not different.The buyer who pays the full amount can request to continue to perform the purchase contract or return the purchase price,but if the buyer who fails to pay the full amount can also request to continue to perform the purchase contract,this kind of right may be abused.Therefore,in different situations,the protected rights of the buyer should be different.The buyer who pays the full amount can choose to request the delivery of the house or the return of the purchase price,both of which have priority rights,while the buyer who pays part of the purchase price can only request the return of the purchase price.Finally,it is necessary to stipulate that the creditor’s rights of the house purchasers should be paid prior to the construction project price,so as to solve the puzzle of whether the creditor’s rights of the construction project price should be used as a medium to deduce that the creditor’s rights of the house purchasers should be paid prior to the secured creditor’s rights,such as mortgage.