Study On The Expectation Right Of Real Right Of The Transferee To Redeem Debt By Housing

The subject of civil rights created an efficient transaction mode of "housing for debt",but because the famous contract enumerated in the Civil Code did not include this kind of contract,it was named "housing for debt agreement" according to judicial practice and academic knowledge.Because the change of real property rights in our country adopts the registration and validity doctrine,when the creditor and the debtor enter into an agreement to pay for the house,but have not yet registered for the house to pay for the house,even if the full price has been paid,the creditor still has not obtained the ownership of the house to pay for the house.At this time,if the debtor or a third party in the ownership of the house is restricted,so that the disposition of the house becomes invalid,it can only be the creditor from the risk.At this time,the creditor will usually file a lawsuit of execution objection to the court to claim that there is a situation between the creditor and the person subjected to execution(i.e.the debtor)to pay the debt with the house,and raise an objection to the house owned by the person subjected to execution.What the creditor is based on is the expectation right of real right stipulated in Article 28 of the Provisions on Execution of Reconsideration promulgated in 2015.However,from the judicial perspective,local courts have different views on whether Article 28 can be applied under such circumstances,and the Supreme People’s Court has even made completely contrary rulings.For example,the Supreme People’s Court held in the Case of Chen Qi that the original intention of the special provision of Article 28 of the Provisions on Handling Reconsideration is to protect the legitimate rights and interests of the innocent buyers of real estate,so the provisions of this article should be strictly applied.Before the parties concerned prove that they meet the requirements stipulated in Article 28,It can not be judged that the buyer has the right to take precedence over the general creditor’s rights,and its claim to exclude compulsory execution is grouneless.However,in the "Pengjie case",the Supreme People’s Court affirmed that the assignee enjoyed sufficient legitimate rights and interests to exclude the compulsory execution of the house involved in the case.In view of this,on the basis of previous studies,this paper will further explore whether Article 28 can be applied to the assignee who has not transferred the ownership but has occupied the house in debt repayment by housing.In addition to the introduction and conclusion,this paper is divided into four parts.The first part mainly analyzes and summarizes the concept,the form of expression and the rights of the assignee in the agreement to pay for the debt by housing,and leads to the status quo and problems of the second part based on it.The second part,on the premise of combining the practice of our country,pointed out whether the housing debt transferee can apply the rule 28,and briefly enumerates two different viewpoints in practice.The third part is to solve the problem of whether the transferee can apply the provisions of Article28,mainly from the following points: First,it is necessary to accurately analyze and identify the nature of the agreement to pay for debt with housing.On this basis,by comparing the differences between the transferee and the no-fault buyer,it further discusses whether the transferee who has not transferred the ownership but has occupied the house in the debt-for-housing can be regarded as the no-fault buyer,and Article 28 is applicable.The last part,on the basis of the previous analysis,puts forward some suggestions,hoping that through the study of this paper,can put forward solutions to some problems in practice,so as to reduce the dispute of judgment,and effectively maintain the justice of the law.