A Study On The Priority Right Of Home Buyer

Article 28 and Article 29 of the Judicial Interpretation No.21 stipulate the priority of home buyer,then the Judicial Document No.254 makes a clearer explanation.However,the legal basis,application conditions and priority of the two articles are still not clear,and the judicial interpretation does not clearly provide for the distinction between general home buyer and consumer home buyer,which has led to a great controversy in theory and application.This paper analyzes the relevant regulations on the priority right of home buyer in China by sorting out the current problems in the protection of the priority right of homebuyer and analyzing them from the perspective of legal theory and application conditions,so as to improve its application from the perspective of legal interpretation within the current legal framework.Firstly,the priority right of homebuyer arises from the purchase and sale contract,and its nature still belongs to creditor’s rights,which do not have priority compensation power compared to other property rights such as mortgage rights.Therefore,it should be interpreted in conjunction with the value concept that the right to housing is greater than the right to production and operation,and the lag of the current real estate mortgage registration procedures,so that its priority compensation power can be legitimate.Secondly,regarding the issue of its application conditions,this paper summarizes the case judgment norms by sorting out the relevant judgments on the priority right of homebuyer in current objection and review proceedings to clarify the application of the priority right of homebuyer and minimize the issue of different judgments for the same case in judicial practice.Finally,the key to the choice of application of Article 28 and Article 29 lies in the judgment of the subject of application.Therefore,this paper will distinguish between general buyers and consumer homebuyer by whether home purchase is used for living purposes as a clear standard.However,this is only a temporary measure.The subsequent substantive laws have not made regulations on the priority right of homebuyer,it only appears in the judicial interpretation of the enforcement procedure and is not directly created by law,which in the long run is not conducive to maintaining the stability of the legal system.Although China has not established a separate priority system,there are different types of priorities such as priority for construction project payments which are scattered throughout various legal documents,making it relatively chaotic and unclear in value.Therefore,it is a more appropriate approach to integrate various priority legal norms in China and establish a priority system based on humanitarian considerations in substantive law.Additionally,provisions regarding the priority right of homebuyer should be added to the priority system,clarifying its priority level and scope of application,to ensure that this important property right has a legal basis,effectively safeguarding the legitimate rights and interests of home buyer.