On The Problem Of The Burden Of Right In The Compulsory Auction Of Real Estate In China

This paper is aimed at solving the problem of real estate encumbrancer of mandatory auction, balancing the conflict of interest between the parties concerned which is caused by the encumbrancer on real estate mandatory auction and realizing the basic conception of efficiency first in mandatory auction.Through interpreting and analysising the related legislative cases at home and abroad, combining with the existing theoretical research, to improve the judicial process of different kinds of encumbrancer norms, make the mandatory auction process successfully completed.The first chapter is about the overview of the real estate encumbrancer in mandatory auction. First of all, identify the nature of mandatory auction. The nature of mandatory auction decided to the encumbrancer processing pattern in real estate mandatory auction, especially when the encumbrancer did not expressed by the auction notice, how to process the encumbrancer which bidders can’t be learned through the auction notice is also directly decided by the nature of mandatory auction. Second,to interpret the concept of the encumbrancer processing in real estate mandatory auction.The main encumbrancers in mandatory auction are various,they are the priority of compensation,usufructuary right and the pre-emption rights.Different rights have different kinds of processing norms, which has to be typed analysis.The second chapter is about the encumbrancer processing mode of real estate mandatory auction.There are two legislative policy about the encumbrancer processing mode in a real estate mandatory auction in various states: principle of eliminating and principle of bearing. In order to make up for the inadequacy of the two, some countries also use residue principle. Each of the three kinds of processing mode has advantages and disadvantages, when settle the encumbrancer in real estate mandatory auction, most countries combine two or three kinds of mode.The third chapter is about foreign and other areas of our country’s legislation on the encumbrancer processing in real estate mandatory auction. Represented by Germany, Japan, Taiwan area in our country, by analyzing the three countries and area’s encumbrancer processing norms in real estate mandatory auction,we realize they all established the system of encumbrancer processing norms in real estate mandatory auction on the basis of public law theory, and there are some other enlightenments: first, collect status survey system to identify real estate ownership and encumbrancer; second,principle of residue can prevent useless auction;third, unpublic encumbrancer is cancelled; fourth, different kinds of encumbrancer adopt different processing modes; fifth, respect the disciplinary right of the parties.The fourth chapter is about specific norms on the encumbrancer processing in real estate mandatory auction. First, combining the current law and judicial interpretation, according to the different characteristics of the different encumbrancer, make a typologically analysis on the priority of compensation, usufructuary right and the protection and achieve the of the pre-emption rights, put forward detailed suggestions on their existing problems to perfect our country current relevant regulation, eliminate the judicial practice of chaos caused by the ambiguous legal norms. Finally, because of the encumbrancer in real estate mandatory auction failing to notice to the public, the loss of relevant owners need to distinguish between the fault of the executed and the court to determine compensation.