| In No.28 of the Rules on the Handling of Enforcement Opposition and Reconsideration Cases by the Supreme People’s Court(hereinafter referred to as the Rules on the Handling),"the buyer occupies the real estate" and "pays the house price" are regarded as important bases for excluding the money creditor of the transferor for compulsory execution,which establishes the priority legal status for the general real estate buyer.In our country,it has deep source of substantive law,broad economic and social background,and rich experience in judicial practice.The buyer constitutes the "secret priority" in the substantive sense,which has a great impact on the registration and validity of the real right change and the principle of the public trust of the real right,and its legitimacy has been questioned.In fact,the establishment of a priority protection system for ordinary real estate buyers shoulders an important dual mission.Its "historical mission" lies in the fact that before and during the transition period after the formal establishment of the real estate registration system,the recognition process of the separation of property and debt repeatedly twists and turns,leading to confusion in the regulation of changes in real estate ownership,and many houses such as small property houses and rural homesteads have not yet completed the initial registration,After the expansion of urban real estate,the boundaries of the ownership status of real estate are also relatively vague.The fundamental reason for the emergence of the above phenomenon lies in the fact that China has not formed systematic regulations and established a unified real estate registration system for a long time.In essence,the behavior of real estate registration has not been endowed with the significance of changes in property rights by law,and the state of rights in people’s minds is inconsistent with the state of rights under the legal system.For this reason,Article 28 of the "Implementation Regulations" grants priority legal status to ordinary real estate buyers as a transitional means for the registration and effectiveness of changes in real estate property rights and the principle of publicity and credibility of property rights during the period from gradual establishment to a solid foundation.Its "mission of the times" is to adopt the effective registration rules for changes in real estate property rights,which means that unregistered buyers cannot obtain the ownership of real estate.Therefore,in addition to the effective registration system for changes in real estate,the gap in identifying the nature of the debt to property conversion process in real estate trading is filled by the "Theory of Expecting Right in Real Right","Theory of Factual Real Right","Theory of Intermediate Right",and "theory of intermediate rights",Strengthen the legal status of the innocent buyer who has fulfilled the main obligations of the contract and obtained possession during the unregistered period.The litigation of execution objection shows the characteristics of "practice first",which is accompanied by the generation of "extensive disputes".The four requirements listed in No.28 of the Rules on the Handling are not yet detailed,and new derivative problems are gradually arising.It is of great significance to refine the rules by grasping the judgment opinions of the Supreme Court concerning the specific determination of various elements,which is an important consideration factor for refining and broadening the establishment elements of No.28 of the Rules on the Handling.At the "contract conclusion level" : factual contracts and online signed contracts should be recognized as meeting the requirements of written sales contracts.At the "legal possession level" : As a degraded means of publicity for registration,possession only has a portion of the characteristics required by the means of publicity.The legal possession of real estate should be based on the actual control of the buyer rather than actual occupancy.It is also necessary to form a chain of evidence to strengthen the publicity power of the buyer’s actual control through five types of related factors such as paying water and electricity fees and obtaining a house key."At the level of payment price" : A buyer of immovable property in the form of repayment of debt in rem cannot achieve identity transformation only through the path of "change of debt" through "new debt repayment",and becomes a buyer with a true expression of intention to purchase immovable property.Therefore,a buyer of "change of debt" who pays debt in rem should be allowed to be excluded from execution under certain conditions."At the level of the buyer’s own fault" : the transferee who buys a house in a borrowed name,represented by avoiding the purchase restriction order,cannot exclude execution.In the mortgage system of the Civil Code,when a buyer of real estate enters into a contract,even if a mortgage is set on the underlying real estate,as long as the "special agreement prohibiting transfer" is not publicized in the form of a real estate register,the real estate can be transferred,and the buyer can register the transfer of real estate.In this case,compared to the mortgage system of the Property Law,New standards have emerged for determining whether buyers ignore barriers to the rights of others.The protection of mortgage rights is based on the principle of right appearance,with the widespread trust of transaction subjects as the value pursuit.The protection of ordinary real estate buyers is considered based on the practical situation of separating the appearance of rights from the real rights.The lack of rules for determining the priority of confrontation between these two types of civil rights reflects the inadequacy of judicial interpretation of laws and regulations.In the absence of predetermined rules for determining the priority of rights,the conditions for the buyer to exclude enforcement should be carefully and carefully grasped,and the buyer’s rights should not be generalized or abused to harm the rights and interests of the mortgagee,nor should the priority of rights be directly obtained in a one-size-fits-all manner,Rather,it is necessary to consider the balance of interests and risk allocation between both parties,and analyze the transaction obligations that should be performed by the general real estate buyer and the mortgagee in specific scenarios.For example,the mortgagee should specify the payment method of the real estate price,the obligation of the joint account to inform the buyer,the obligation to effectively supervise the joint account,and the obligation of the buyer to pay the price to the mortgagee according to the mortgagee’s instructions "Carefully review the obligation of publicity under the" Prohibited Transfer "special agreement,and then judge whether or not the faults of both parties are significant or not.Refine the specific situations considered by the Supreme Court when dealing with rights confrontation,distinguish between the two situations of" buy before pledge "and" postpone before buy ",and organize reasonable rules for determining the priority of rights under the two mortgage transfer systems of the Civil Code and the Property Law,respectively.",In order to seek a "golden dividing point" between the interests of the buyer and the mortgagee. |
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