A Study On The Protection Of The Rights Of Buyers In The Bankruptcy Of Housing Enterprises

In recent years,with the tightening of financing policy in the real estate industry,many housing enterprises have had to go on the road of bankruptcy because of the financing difficulties and lead to the breakage of the capital chain.The bankruptcy of housing enterprises often involves mortgagee,construction contractor and other creditors.But the buyer’s creditor’s rights are often related to the buyer’s right of residence and its scale is huge,and it is in a weak position in the market transaction.If it cannot protect its creditor’s rights specially,it may face the risk of no houses and no m,and then affect the social stability.In the light of this,the Supreme Court,in article 2 of its 2002 reply,stipulated that the contractor’s pre-emptive right of payment of the project price for the commercial housing shall not be contested against the buyer after the consumer has paid all or most of the money for the purchase of the commercial housing.In practice,courts tend to apply this regulation to give special protection to buyers,but the specific understanding of the rule is different.Theories question the rationality of this special protection,whether the approval gives priority to buyers is worth reflecting on,how to balance the relationship between buyers and transaction predictability,transaction security has become an unavoidable problem.Based on this,this paper will discuss these problems in depth.the first chapter of this article is the conflict between the legislation and practice of the creditor’s rights in the bankruptcy of housing enterprises.It mainly examines the different treatment of the buyer’s creditor’s rights in the legal norms and bankruptcy practice.In the case that the law does not give priority to the buyer’s creditor’s rights,the administrator or the court directly or indirectly protect the buyer by binding the construction work in progress with the purchase contract to be fulfilled,by neglecting to exercise the right of rescission of bankruptcy and by judicial judgment.This priority is both a misinterpretation of the original intent of the Approval and a lack of publicity that jeopardizes the safety of the transaction.The second chapter of this paper is the question and reflection on the Approval of Priority Compensation.Mainly for the practice of the use of "approval" to give buyers special protection practices.First of all,the theory of the right to survival and the right to look forward to the theory of questions.The state,as the subject of the obligation to guarantee the citizen’s right of existence,should pass on the responsibility to the other creditors,and the application of the right of expectation of real right has been expanded by treating the buyers differently.Secondly,the practical effect of the priority arrangement is questioned.The judicial interpretation such as "reply" is too vague,resulting in its rules are not operable.And this special protection also opens the channel for the developer maliciously to escape the debt,more to the financial security and the real estate industry development harm.Finally,the author probes into the true meaning of the approval in the way of interpretation,and thinks that "no confrontation" does not give priority to the buyer,and the order of mortgage should not be affected by the second article of the approval.The third chapter of this article is "the proper path and concrete measures to protect the rights of buyers in the bankruptcy of housing enterprises ".Since the approval does not give priority to buyers,the protection of the rights of buyers should return to the legal framework.First of all,put forward the appropriate legal path of the protection of the buyer’s creditor’s rights: it is clear that the property right of the house that has been delivered has been attributed to the buyer,and the buyer who has delivered all the purchase money has the right to exercise the right of retrieval and restrict the administrator to exercise the right of rescission through the notice registration.Secondly,the pre-registration of the purchase rights and construction project price priority,mortgage,enterprise workers’ rights between the order of re-combing.Finally,it is considered that the protection of the rights of buyers should also pay attention to the prevention in advance,and put forward specific suggestions such as perfecting the advance payment supervision system,perfecting the developer information disclosure system,and drawing lessons from the Japanese advance payment margin system.