Research On The Conflict And Coordination Between Leasehold And Mortgage Right In Real Estate In Execution Procedure

The nature and characteristics of lease right and mortgage right determine that they can coexist on the same real estate.In recent years,the conflicts between mortgage and leasehold on real estate emerge one after another in the execution procedure.More and more parties to the case take advantage of the conflict between real estate lease and mortgage and the non-standard coordination mechanism to avoid or hinder the enforcement of the collateral and damage the judicial fairness and authority.It is of great significance for theory and practice to explore the conflict and coordination between lease right and mortgage right on real estate in the execution procedure.By collecting and sorting out the case information of the conflict between the lease right and the mortgage right of real estate in the execution procedure in recent years,this paper expounds the research background of the full text,combs the problems,summarizes the current situation of the conflict between the lease right and the mortgage right in real estate in each period,and analyzes the problems and deficiencies of the existing disposal methods such as the "current situation auction"mode,the review of the form of lease contract and the direct rejection of the objection of outsiders.It points out the main reasons why the conflict between Leasehold and mortgage on real estate cannot be properly handled in the implementation procedure,including that the judicial interpretation of existing laws and regulations rarely involves this aspect;In judicial practice,judges have different standards in judging the time when the lease right is established because they can not fully grasp the standards;It is not clear how to remove the leasehold and its standard when the mortgage is realized;After removing the leasehold,the lessee’s interest protection mechanism is not perfect,and the lessee’s interest is damaged.The author puts forward some suggestions on the conflict between Leasehold and mortgage and the optimization of coordination mechanism in the implementation procedure.Establish the principle of conflict resolution,respect the parties’ right of disposition,balance of interests,and give consideration to execution efficiency and appropriate execution;Clarify the judgment criteria for the establishment time of the lease right,and establish a conditional registration and filing system for the lease right of real estate;Improve the standards and procedures for removing the leasehold when the mortgage is realized;Optimize the design of supporting systems,balance the interests of all parties,effectively regulate false lease contracts,strengthen the avoidance of legal liability for execution through false leases,improve the procedures for examining false leases,and establish a priority protection mechanism for vulnerable groups.