| Influenced by the trade war between China and the United States and the COVID-19 epidemic,the domestic market economy is depressed,and many industries have reached saturation and appeared "bubble" phenomenon,especially in the real estate market.In recent years,the state has strengthened the regulation and control of the real estate market,and the limited financing channels of the real estate have led to an increasing number of cases of real estate development enterprises applying for bankruptcy accepted by the court.Bankruptcy cases of real estate development enterprises involve complicated legal relations,and the subjects of creditor’s rights include the demolished-removed person,the person who bought the house,the contractor of the construction project,the financial institutions such as banks and the shareholders of the company.After the bankruptcy of real estate development enterprises,all creditor subjects have claimed that the houses have the priority to be compensated according to the same subject matter.The bankruptcy property is limited,so how to make the fair repayment of the limited bankruptcy property should not only be based on the laws and regulations,but also refer to the legislative spirit of protecting the weak to distribute the property.The enterprise bankruptcy law in our country to tax in real estate development enterprise bankruptcy claims,workers’ claims to make detailed regulations,in the aspect of judicial interpretation rules only price to seek preferred payments for banks and financial institutions,such as mortgage right to seek preferred payments,and is to be demolished,the creditor’s rights of the person that buy a house in justice priority for protection there is no legal basis,And how to protect the creditor’s rights of the people who are removed and the people who buy houses is also a difficult problem in the trial practice.The types of house buyers are diversified,and different types of house buyers have different credit rank.In social life,there are three kinds of house buyers,which are consumption type house buyers,"house for debt" type house buyers,and investment type house buyers.Their credit rank is different.Both the judicial practice and the theoretical circles think that the creditor’s rights of the consumer type house buyers that meet certain conditions are in priority,and the creditor’s rights of the "house for debt" type house buyers and investment type house buyers are included in the ordinary creditor’s rights.In the real estate development enterprise bankruptcy case priority sequence of the creditor’s rights is not only a consumer of creditor’s rights of the person that buy a house,judicial interpretation and law and dismantles creditor’s rights,the construction contractor for debt,the mortgagee shall guarantee real right shall have a priority,but what right priority is not specified,and the conflict between judicial interpretation and the laws and regulations and legislative loopholes,The academic circles and judicial practice circles have made intense discussions on this issue.There is a conflict between the creditor’s rights of the consumer house buyer and the creditor’s rights of the demolished-removed person.Both of them are based on the protection of survival rights and interests.When the bankruptcy property is not enough to pay off,which creditor’s rights of the two is more priority? Consumer buyers claim the sequence and construction engineering contractor claim the sequence of the conflict lies in the construction project including migrant wages,rural migrant workers are vulnerable groups,if consumer buyers claim based on survival rights and interests of the protection of creditor’s rights prior to the construction project payment,that will damage the interests of the migrant workers hard a year or several years.The conflict between the creditor’s right of consumer buyers and the mortgagee’s real right is based on the non-equivalence between the creditor’s right and the real right.The Civil Code stipulates that the real right has priority over the repayment of the creditor’s right.However,compared with banks and other financial institutions,consumer buyers are vulnerable groups and should have priority,which is an exception of the principle of the priority of real right over creditor’s right.The cause of these conflicts lies in the present situation of the system of credit ranking of the consumer who buys the house: first of all,there is no effective cohesion between judicial interpretation and laws and regulations,which causes the dispute of credit discharge ranking.The "Approval" has been abolished,and only other judicial interpretations and guidance opinions stipulate the scope and time limit of priority compensation for construction project prices,and no provision is made on the protection of the rights of consumer buyers.Second,although have consensus on consumer protection in the judicial practice of creditor’s rights of the person that buy a house a priority,but the consumer around the court the different proportion of payment dispute of the person that buy a house,the most extreme example of this is to pay 51% deposit and pay 49% of consumption and the person that buy a house,the former can be listed as priority claims priority repay,the latter only as an ordinary creditor’s rights to repay.Finally,the lack of publicity system for the credit ranking of consumer house buyers is not conducive to the predictability and stability of transactions.The insolvency administrators of real estate development enterprises are slow in exercising their rights,which has a great impact on the credit rank of consumer house buyers.Continuing to perform the commercial house sales contract will make the credit rank of consumer house buyers in priority.The rescission of the commercial housing sales contract will make the creditor’s right of the consumer buyer classified as ordinary creditor’s right.Want to balance the interest conflict between the creditor’s right priority of the person that buy a house of consumption type and other priority order needs to follow certain principle,such as principle of priority of right of survival,principle of fairness,principle of honesty and credit,principle of maintaining market trade order.Improve consumer debt priorities of the person that buy a house has the following three suggestions: a clear consumer buyers claim line scope limited to the real right claim,usually due to recall belong to rights real right,this exercise can make consumer is the person that buy a house to the trustee in bankruptcy recall right,consumption and the creditor’s rights of the person that buy a house left out of the bankruptcy property;make clear when the bankruptcy application is accepted,the payment proportion of the consumer who buys a house is more than 50%.The second is to introduce the advance notice registration system in which the creditor’s right of the consumer buying house in the bankruptcy of the real estate development enterprise is paid first.The advance notice registration system can counter the real estate developers who sell the commercial houses to the third party based on the purpose of profit,which is the behavior of selling one thing and two things.Third,the notice registration system has the effect of fighting against the third party.If the commercial housing sales contract registered through the notice cannot exclude the manager to exercise the right to terminate the contract,there will be the failure of the realization of the real right of the house of the consumer.After registration through forecast,the person that consume model buy a house did not obtain building itself actual right,obtain the real right that asks to realize right in the future however right of request.In order to ensure that the people who buy houses of consumer type enjoy the property right to the house will not fall to the ground,it is necessary to limit the rescission right of the bankruptcy administrator of the real estate development enterprises. |
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