Point of view. From a case, the buyer who sells first and then arrives executes the rules of the judgment of the objection.

Content Summary

In recent years, the number of cases of execution objection caused by the enforcement of real estate is huge, and the legal issues and life facts involved are relatively complex, often involving large personal property rights and interests, which is worthy of legal practice research. By searching for cases related to the "buyer's right to expect real rights", there are many differences in trial practice, especially when it comes to the right to expect real rights of no-fault buyers. Based on an agency case, this paper discusses the conflict between the buyer's right of expectation and mortgage.

Key words:

The right of expectation of the right to enforce the objection.

1. the introduction of a case

On July 6, 2015, an intermediate people's court made a civil judgment No. 408, in which the fourth judgment was that a rural commercial bank had the priority to be paid the debts determined in the third item of this judgment within the scope of 2.5 million yuan and 7623 yuan of lawyer's agency fee for the property in Room 102 of Tianjian Real Estate Company. According to the content of the judgment, the time for mortgage registration between a rural commercial bank and Tianjian Real Estate Company is December 18, 2013, and the initial seizure of the property is December 19, 2014. After the case entered the execution procedure, a rural commercial bank transferred the above-mentioned creditor's rights to Zhang. On June 19, 2018, the intermediate people's court ruled that the executor of the application was changed from a rural commercial bank to Zhang. On September 26, 2019, the Intermediate People's Court made a ruling to auction the real estate in Room 102, District 1, Tianheyuan Community. Zhu Moumou was dissatisfied with this and filed an enforcement objection claiming that the real estate involved in the case had been purchased. The court ruled to suspend the execution. Zhang Moumou refused to accept this and filed a lawsuit against the applicant for execution objection.

Zhang a certain in the execution of the objection to claim that he enjoys a legal mortgage, Zhu a certain can not be used to buy and sell the contract claims against the property rights that have been registered for mortgage, the property involved in the case can not exclude enforcement. Zhu Moumou claimed that he signed the "Commercial Housing Sales Contract" with Tianjian Real Estate Company on November 26, 2003 to purchase the real estate involved in the case. The real estate was commercial in nature, and he paid the entire purchase price of 695725 yuan on December 22 of the same year, although he did not apply for the real estate. The title certificate, but has the right to expect the real right to the real estate involved. The first instance also found out that from 2006 to 2012, Zhu Moumou and Tianjian Real Estate Company had been litigating disputes such as overdue delivery. On July 6, 2010, Zhu received the real estate involved from Tianjian Real Estate Company. On May 8, 2017, Zhu Moumou leased the property involved to Shuyu Civilian Company for a period of five years. The property involved has not been registered.

An intermediate people's court held that according to Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts (hereinafter referred to as the Provisions on Enforcement Objection Reconsideration), Zhu Moumou met the first and 2. items of the article, but did not meet the fourth item, that is, Zhu Moumou had long been lazy in exercising the right to handle real estate transfer when the real estate, its rights cannot therefore exclude enforcement.

Zhu Moumou appealed to a higher people's court, claiming that he had been actively exercising his right to apply for a certificate, so he fully met the four conditions stipulated in Article 28 of the enforcement objection reconsideration regulations. The case is currently under second-instance proceedings.

In the above cases, the focus of the dispute can be summarized as Zhu's purchase of the property involved in the case earlier than the time of mortgage registration and seizure, and the payment of all the purchase money, its claim as the buyer to obtain ownership of the property is sufficient to counter the mortgagee's priority compensation right. It is generally considered that, under article 28 of the enforcement objection review provision, the answer to this question is clear, that is, the buyer's right can exclude the mortgagee's enforcement. In my opinion, article 28 of the enforcement objection reconsideration provisions should not be applied in this case, which involves issues such as the principle of handling cases of first sale and then offset and the conditions for the protection of the right to expect property rights.

The issue of distinguishing between general buyers 2. the consumer of commercial housing and the consumer of commercial housing

Limitation of (I) Right of Expectation of Real Right

When the author searches for the relevant judgment documents of this kind of execution objection case in this case, the concept of "real right expectation right" appears most frequently.

The buyer's right of property expectation is not directly stipulated in the current legislation of our country, and the source is only visible in a small number of judicial interpretations, but the nature of its right is objective. It has been argued that it is an expectation that the buyer acquires ownership and is a kind of property right. Some scholars do not recognize this right, arguing that before the registration of property rights, the right is essentially a contractual claim. In trial practice, because the right holder of the right of property expectation is often an individual, the interests involved in real estate are huge for every family, which leads to the judicial tendency to be more preferential treatment and protection.

The author believes that we should hold a vigilant attitude towards the expectation right of real right, because its attribute does not conform to the principle of real right change of "registration doctrine" in our country, and it cannot have the effect of real right change and does not have the effect of publicity. If the expectation right is expanded or abused to give special preferential treatment to the buyer, it will damage the security of other transactions and the trust interests of the enforcement applicant, and even induce the lawsuit of false enforcement objection. Whether it is the mortgagee or the enforcement applicant, the mortgage or seizure act based on the trust of the real estate registration content, if it is easy to fall through because of the buyer's property right expectation right, will undoubtedly lead to the whole property right legal system shake, destroy the basic framework of property rights change. The author always believes that the protection of the right to expect the right to buy the character should be restrained and strict.

(II) distinction between the identities of the two buyers

Mortgage, as a security right set on the property of others, has the effect of restricting the ownership of property, and also has a strong priority. However, a mortgage can only take precedence over a subsequently established right in rem expectation, not over a previously established right in rem expectation that meets the prescribed conditions. So what conditions do the previously established right of expectation need to be met in order to prevent it from being implemented?

According to the provisions of Articles 28 and 29 of the Implementation Objection Reconsideration Provisions, two distinctions are made between the identity of the buyer, that is, the buyer is divided into commercial housing consumers and general buyers other than commercial housing consumers, each of which needs to meet different conditions. Article 28 stipulates the conditions for general buyers other than commercial housing consumers, while Article 29 stipulates the conditions for commercial housing consumers, that is, "in the execution of monetary creditor's rights, the buyer raises objections to the commercial housing registered in the name of the real estate development enterprise being executed, and meets the following circumstances and its rights can be excluded from execution, the people's court shall support: (1) a legal and valid written sales contract has been signed before the people's court seals up; the commercial house purchased by the (II) is used for residence and there is no other house for residence under the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract."

It can be seen from this that the judicial interpretation has different conditions for the protection of the right to expect property rights stipulated by the two types of buyers, and there are different considerations for the legal interests protected behind them, that is, Article 28 is intended to protect the general buyers of no-fault real estate. The rights and interests of commercial housing consumers are specially protected from the right of survival.

Re-discussion of the Application of Law after the Minutes of the 3. Nine People's Meeting

In judicial practice, the author found similar cases through search, such as Tianjin High Court (2017) Jin Min Zhong No. 78 Judgment, which holds on the application of law: "Article 28 is the protection condition for the expectation right of the right of the person to buy real estate without fault, which belongs to the general clause and is applicable to all types of executed persons. Article 29 is the protection condition for the expectation right of real right of housing consumers, it is a special provision specifically for the executor of a real estate development enterprise. If the person subject to execution is a real estate development enterprise, and the real estate being executed is a commercial house registered in its name, and at the same time, it meets the two situations of the real estate registered in the name of the person subject to execution and the commercial house registered in the name of the real estate development enterprise being executed, then there is a competition in the application of the law, which can apply either special terms or ordinary terms."

The author thinks that the application of the above law refers to the discussion. First, in jurisprudence, special provisions should be superior to general provisions. Article 92 of the Legislative Law stipulates that "if the special provisions of laws, administrative regulations, local regulations, autonomous regulations and special regulations and rules formulated by the same organ are inconsistent with the general provisions, the special provisions shall apply". Therefore, when the general provisions of all the executed persons and the special provisions for real estate development enterprises compete, the special provisions shall be applied first, otherwise the significance and function of establishing special provisions will not exist. Secondly, after the release of the minutes of the nine-people meeting, there are more clear opinions on the issue of the buyer's protection, that is, articles 125, 126 and 127 of the minutes of the nine-people meeting have more detailed provisions on the legal application of articles 28 and 29 of the implementation objection reconsideration regulations, and it is clear that the two different situations of commercial housing consumers and general buyers other than commercial housing consumers should be distinguished, different constituent conditions are applied to determine whether enforcement can be excluded, and to guide the difficulties of determining conditions in trial practice, where the author no longer interprets each clause.

The author believes that in the case of this article, whether Zhu Moumou actively exercised the right to register property rights and put it on hold, jumped out of the first instance of the law applicable ideas, should choose to apply the implementation of objection reconsideration provisions of Article 29, because Zhu Moumou is a real estate development enterprise to buy commercial door, obviously belongs to the commercial housing consumers, rather than the general buyer. As a consumer of commercial housing, the real estate involved in Zhu's case is not used for residence and does not meet the second condition stipulated in Article 29. The loss of his rights does not affect the basic right of survival, so the execution of the mortgagee Zhang cannot be ruled out.

4. epilogue

At present, there are still many controversial points in the court's trial of cases of execution objection, the scale of judgment is broader than the scope of legislative protection, and the phenomenon of non-uniform judgment of class cases is very common. Under the background that the national courts are vigorously strengthening the enforcement work, the lawsuit of execution objection is an important path of execution relief, which is of great significance to protect the rights of buyers and applicants, balance the interests of all parties, and ensure the correctness of the implementation work.

The general view is that the rights of home buyers take precedence over mortgages, but the conditions for the rights of home buyers here should be strictly required and cannot be expanded or loosely treated. The author insists that which right is the priority is actually a question of judicial value measurement. For this kind of execution objection cases discussed in this paper, the trial work should take the identity of the buyer as the starting point, strictly apply the law to the conflict between the buyer's property right expectation right and the mortgage right, and the necessary right composition conditions are indispensable, fully guarantee the priority of the mortgage right, and then safeguard the basic principles of the property law, and strive to make similar cases follow the same judicial scale.

References

[1] Jiang Bixin and Liu Guixiang, edited: "Understanding and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts", People's Court Press, 2015.

[2] Liu Guixiang and Fan Xiangyang: "Understanding and Application of the Provisions on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts", in People's Justice, No. 11, 2015.