| The report of the 19 th National Congress of the Communist Party of Chinaproposed to speed up the establishment of a multi-subject supply,multi-channel guarantee,and rent-and-purchase housing system so that allresidents can have acess to housing.The development of the housing rentalsystem is inseparable from the improvement of the rental legal system.Inpractice,the conflicts between mortgage rights and leasehold rights arecommon,and New development trends have emerged in both doctrine andjudicial practice.The traditional practice absolutely denies the effectiveness ofpost-lease,but there are theoretical and practical weaknesses.Viewing fromthe judgment of the establishment of the lease,the determination of theeffectiveness of the lease to the treatment of the lease at the time of therealization of the mortgage,the standards of judicial practice are quite chaotic,and the struggle between the new theory and the traditional theory is inevitable.The writing of this article selects real estate such as houses anddiscusses the effectiveness of the lease after mortgage,and strives to beimpartial and justified.The first part begins with three typical cases in which judgment calibersand results conflict with each other.It analyzes the disputes over the validity ofthe lease right when the mortgage is prioritized in the judicial practice,andsecondly compares the provisions of the judicial interpretation and propertylaw on this issue,pointing out the contradictions in the legal provisions,and itput forward the research path of the problem.The second part is to solve the pre-requisite question of determining theeffectiveness of the post-lease right,that is,the establishment criteria of thelease relationship when the mortgage is prioritized.Starting from the conceptof leasehold rights,the lease legal relationship is divided into two stages:before the transfer of possession and after the transfer of possession,and it isclear that the lessee enjoys the “right of debt-based control” in the latter stage.On this basis,this paper analyzes the theoretical controversy about thecharacterization standard(occupation or lease registration)of thecounteracting effectiveness of the lease right,compares the publicityeffectiveness and development status of the two,and finally puts forward thejudgment standard with the possession as the main and the registration as thesupplement.The third part analyzes the doctrine of the validity of the post-lease right,including the absolute invalidation theory,the absolute validity theory,andthe influence decision theory.The author agrees with the last doctrine,that is,when the mortgage is realized,the lease relationship is not absolute invalid.Itshould be examined whether the existence of the lease relationship damagesthe mortgagee’s priority compensation interest,and the validity of the lease isonly negated when it does harm to the mortgagee’s priority compensation.And only negates the validity of the lease when it affects the mortgagee’spriority.Then from the five aspects of system interpretation,interpretation oflegislative purpose,theory of "coherence of rights",interest balance theoryand comparative law research,the theoretical basis of the impact decisiontheory is demonstrated,and the absolute invalidation theory is criticized andquestioned in order to call for theoretical change.The fourth part mainly analyzes the general standards and operationmethods of judging whether the lease right has any influence on the realizationof the mortgage right in the judicial execution stage.Scholars generally agreethat when the auction price of the mortgaged mortgage is insufficient to payoff the secured creditor’s right,the lease right will be removed.But there isstill controversy about the specific enforcement procedures used in judicialenforcement.Therefore,the fourth part compares and analyzes the doublevaluation method and the evaluation price estimation method,and proposesthe determination method of the impact of the lease right in accordance with China’s judicial enforcement practice.In addition,the fourth part discusses thelegal basis for the buyer to bear the lease contract under the lease retentionsituation,and the construction of the lessee to suspend the retirement systemin the case of lease removal. |
