On Conflict Of Right On Real Estate And Its Judicial Process

There are many article about the Property Law and the papers on the conflict ofrights in real estate are too numerous to mention individually. But in this paper westart from the typical types of conflicts of rights in real estate in the judicial practice toestablish the the referee principles of the real property rights conflict by building thevalue system of the conflict of rights in real estate. This paper is not from thelegislative theory, but from the angle of method explained,that means is under thepremise of the analysis of existing laws, not another way, but by the method ofinterpretation of the existing ordinance to improve the rules of conflict of rights in realestate. The author has long been engaged in the justice work, so I pay more attentionto specific cases announced by the Supreme Court and other local courts in thepractice of real property rights conflict. In this article, the author take the types ofanalysis research methods to analysis the typical real property rights conflict, specificthe types of the judicial rules clearly disputes and the real property rights conflictresolution in order to summary the practice in the judicial work. This paper takes thestructure of general conclusion and distinction conclusion, the content is divided intofive chapters.The first chapter is the general conclusion, divided into three parts. The first partsummarizes the meaning, the property, the reason of the occurrence and the way tosolve of the conflict of rights in real estate. The second part is based on the essenceof the conflict of rights in real estate is for the interest, then get the fundamentalapproach for solving the conflict of rights in real estate is to built the value system.With the national situation, the author proposes the interests of the different legalvalue should be ordered to 'giving priority to efficiency, taking into account thehighest degree of fairness; order of priority, to protect a minimum of freedom'. Thethird part on the basis of the value selected, the author discusses the four cardinalprinciples of property law to dispose of real rights conflicts in the administration ofjustice to be followed, the principle of one property one right, The legal principle ofproperty right, the principle of public trust, the principle of the property changes bydistinguished. This article theory is based on the basic principles of the valuesequence and referees to build judicial rules to resolve conflicts of rights in real estate. The second chapter to the fifth chapter of this paper is the part of the distinctionconclusion, I select four typical judicial practices situations of conflict of rights in realestate to analyze. The second chapter discusses the rights conflict of the multiplehouse trading. To Identified the validity of the contract of the multiple house trading,the author proposes, in accordance with the principle of the property changes bydistinguished, the validity of the multi-housing contract for the sale recognized theindependence should be applied by the rules of the Contract Law. On the recognitionof the affection of the property rights changes, I think that on the base of the claimsunder the Property Law the registration is the only factor to determine the propertyrights changes. The effectiveness of the preservation of the right to pick the issue ofhouse multiple trade contracts to continue to fulfill, the author proposes, in the case ofno changes in property rights registration, the notice of registration (advanceregistration) should be recognized, but except the person who knowingly buyeroccupy the housing. Although the buyer occupy the housing first, and generallyshould also support to handle the announcement registration of the buyer to continueto perform the contract petitioned. Also believes that when unable to obtain homeownership, the buyer has the right to request for the compensation for the damage orthe punishment.The third chapter is devoted to discuss the conflict of the rights in the case ofhouse rental. First, the lessee's purchase preference should be applied when the househas been saled without notification. At the same time, the business contract betweenthe sales and the lessee and the contract between the sales and the buyers should beequity applied, which one can be effect upon the lease registration. The lessee shouldbe sustained if the lease has been registered, because the lease right has changed intoreal right, in opposite, the lessee should only make compensation for break a contractsubstitute for proposal the contract which between the sales and the buyers is invalid.Second, the purchase preference for the parties whom has part of the ownership forthe house but disagreed the sales should be prior the lessee's purchase preference, inaddition the next lesseeloses the purchase preference. finally, where a leaserelationship and a mortgage relationship both arised in the process of a house sales,the preference should be upon the deliver time of the contracts, the lessee cancontinue the lease contract if it delivered earlier, in opposite the mortgagee should besustained where the mortgage contract delivered earlier, furthermore, the lessee'spurchase preference can be applied.The fourth chapter researches the conflict of rights in the transfer of real estatecharge. The right of chargee should be prior protect where the rules designed, based on the transfer models of the real estates(immovable property) and its legislationevolution. Where the profits between the chargor and the buyers should be mutuallybeneficial, the chargor should handle it freely, and then the right of the chargeeshould also be admit.The fifth chapter discusses the conflict of rights in the case of home mortgage.A Summary of the basic theory of China's housing mortgage system, the authorproposed to solve the conflict of rights in the home mortgage case of judicial rules.First, the people who buy a house from the developers want to sue the developers, itshall notify the mortgage bank as independent claims in the third person from theproceedings, if the mortgage bank's sue is reasonable the sue should be combined. Ifthe mortgage banks have another proseuction, though not in the same court, the courtshould combine the two sue. Second, handle in the entity, the two cases should bepurchased together take into consideration to avoid contradictions. If the contract ofthe purchase is considered invalid in the judgment, the court relieve the legalrelationships between developers, buyers, and mortgage banking. If the loan contractis relieved, buyers return the house to developers, the developers should be asked toreturn the money buy the house to the buyers, return the loan to the mortgage bank,and the mortgage bank return the loan the buyers have repayed to the buyers. If bothparties continue to fulfill the loan contract, the bank can require buyers to separate theprovision of matching guarantee. Thirdly, overall the different rights conflict, Ibelieve that the realization of the right order is: enjoy the works of constructioncompanies priority claim is the highest priority, followed by the registration in thefirst bank mortgage, re-mortgage bank mortgage right, the last is a real property rightenjoyed by the buyers under the notice of registration when the priority claim in thebank's mortgage, the works of construction companies, home buyers according to thenotice of registration of real property claims, buyers conflict in accordance with therelevant judicial interpretations advocated by the consumer priority and mortgagebanking mortgage rights enjoyed under the mortgage loan contract. As for theconsumer priority the buyers advocated has ben absorbed with the notice provisions inthe relevant judicial interpretations and the conflict of the provisions of the PropertyLaw and Property Law registration system.