Viewpoint. One of the priority claims in bankruptcy proceedings in the context of the Civil Code: priority of demolition and resettlement households.
Published:
2024-07-01
On January 1, 2021, the Civil Code and related judicial interpretations came into effect and came into effect, and the various priority determination rules in bankruptcy proceedings have undergone tremendous changes, and this paper analyzes and combs the changes in the determination and revision of the priority of demolition and resettlement households in the Civil Code and related judicial interpretations.
"Fair liquidation of claims and debts" is one of the core purposes of the bankruptcy system, but absolute equality of claims does not exist, and the order of settlement of various types of claims is clearly stipulated in the bankruptcy proceedings. The relationship between the various types of claims, resulting in each priority creditor's claim will directly affect the rights and interests of the latter creditor. According to Articles 43, 109 and 113 of the Enterprise Bankruptcy Law, the right holder who enjoys a security interest in a particular property shall have the right of priority to be paid; bankruptcy expenses and common debts shall be paid off by the debtor's property at any time; other claims shall be paid off in turn according to employee claims, tax claims and ordinary claims. In general, the settlement of various types of claims in insolvency proceedings is:
On the basis of the general creditor's rights settlement, the Maritime Law and the Civil Aviation Law provide for the order of payment of ship priority and civil aircraft priority over the security right. At the same time, before the introduction and revision of the Civil Code and related judicial interpretations, in order to protect the survival rights and interests of the three special groups of demolition and resettlement households, consumer buyers, and construction project contractors, the law stipulates that their rights take precedence over security rights, and The rights of demolition and resettlement households and consumer buyers take precedence over the contractor's right to receive priority compensation for the construction project price.
On January 1, 2021, the Civil Code and related judicial interpretations came into effect and came into effect, and the various priority determination rules in bankruptcy proceedings have undergone tremendous changes, and this article is now analyzing and combing the changes in the determination and revision of the priority of demolition and resettlement households in the Civil Code and related judicial interpretations.
The first paragraph of Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts (2003) (hereinafter referred to as the 2003 Judicial Interpretation) stipulates that the demolisher and the demolisher shall enter into a demolition compensation and resettlement agreement in the form of ownership exchange, which clearly stipulates that the demolisher shall compensate and resettle the demolished with houses with specific locations and uses, if the demolished person requests priority to obtain compensation for resettlement housing, it shall be supported. This provision makes it clear that the rights of the demolition households who have obtained resettlement houses through the exchange of property rights take precedence over the buyers in other housing sales contracts. Several cases of the Supreme People's Court have also determined that the priority of demolition and resettlement households is superior to the priority of commercial housing consumers and mortgagees according to this clause. (Relevant Judgment Documents:(2020) Supreme Law Minshen No. 747 Civil Ruling, (2019) Supreme Law Minshen No. 6875 Civil Ruling, (2017) Supreme Law Minshen No. 2304 Civil Ruling)
The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes (2020 Amendment) (hereinafter referred to as the 2020 Judicial Interpretation), which came into effect on January 1, 2021, deleted the provisions of Articles 7 and 8. 9 of the 2003 Judicial Interpretation. There is a view that the deletion of the seventh and 8. ninth articles of the 2003 judicial interpretation is mainly to cancel the compensation and resettlement houses, to sell the signed commercial housing sales contract separately, and to pay the house price when the payment is paid. The key point is not to deny the priority determination between the demolition and resettlement households and the buyers of other housing sales contracts. There is also a view that Article 7 of the 2003 judicial interpretation defines the priority of demolition and resettlement households, and the abolition of this clause can be determined that the priority of demolition and resettlement households cannot be opposed to other house buyers. So in the case of 2020 judicial interpretation to modify and delete the priority clause of the demolition households, how to identify and protect the rights of the demolition households in the case of the bankruptcy of the real estate developer?
According to the "Regulations on the Expropriation and Compensation of Houses on State-owned Land" and the "Emergency Notice of the General Office of the State Council on Further Strict Management of Land Acquisition and Demolition and Effectively Safeguarding the Legal Rights and Interests of the People" and other laws and regulations, the demolished can choose the compensation method of monetary compensation and house property rights exchange. If the demolition households, demolition and resettlement households claim to deliver property rights to exchange houses, the people's government at the city or county level that made the house expropriation decision shall provide houses in the rebuilt lot or nearby lot. If the property right exchange of the house is selected, before the property right exchange house is delivered, the house collection department shall pay the expropriated person a temporary resettlement fee or provide a revolving house. Accordingly, it is the housing expropriation department that fulfills the obligation of compensation and delivery of property rights exchange after housing expropriation and demolition. However, in practice, the actual person who delivers the house to the demolition households is the real estate developer, and when the subject of expropriation and demolition and the subject of contract performance are misplaced, their rights and interests are easily infringed by the act of selling more than one house and more credit.
To sum up, the author believes that although the 2020 judicial interpretation deletes the provisions of Article 7 of the 2003 judicial interpretation, the demolition and resettlement households have transferred their own survival rights and interests for the social public interest. Under the clear and specific circumstances of choosing the housing information for property rights exchange, the rights and interests of the demolition and resettlement households to obtain compensation houses should be protected, After the judicial interpretation is revised, the protection of the rights and interests of the demolition households should be explained. At the same time, the housing expropriation department should strengthen and standardize the supervision of real estate developers, promptly urge real estate developers to handle the advance registration of property rights exchange houses to the demolition and resettlement households and fulfill the delivery obligations, and clarify the punishment measures for selling more than one house and more credit. Demolition and resettlement households shall clarify the information of property rights exchange houses when signing the demolition and resettlement compensation agreement, and timely handle online signing for the record and advance registration to protect their rights and interests.
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