The Competition Of Real Estate Mortgage And Lease

In fact, disputes between the mortgagee and the lessee often happen when the mortgagee or the creditor auctions the pledge of immovable for lien realization. Though the regulations of "the principle of purchase is subject to existing leases, leasing right is prior" are confirmed in relevant laws in our country, there are still some problems in the process of application. Therefore, the research on the limit of application of "the principle of purchase is subject to existing leases, leasing right is prior" is of great significance to both the legal theory research and the practical judicial work.The first part of the thesis is a summary of the competition between and cooperation of hypothec of immovable property and leasehold. With the analysis of various situations like mortgage prior to lease or lease prior to mortgage, the theory basis of "the principle of purchase is subject to existing leases, leasing right is prior" is completely elaborated.The second part of the thesis focuses on the analysis of rules of "the principle of purchase is subject to existing leases, leasing right is prior" with a comparative method. By comparing the legislation principles of the rule of "the principle of purchase is subject to existing leases, leasing right is prior" in Japan, South Korea and the Taiwan district, the author makes a summary of their legislation practices’ enlightenment on the practices of Chinese mainland. We should complete the system of "the principle of purchase is subject to existing leases, leasing right is prior", adding the rules of "the principle of purchase is subject to existing leases, leasing right is prior" in the sphere of the "property law"and establish an effective registration system of immovable property.In the third part of the thesis, the problem of the limit application of the rules of "the principle of purchase is subject to existing leases, leasing right is prior" is offered on the basis of analyzing the application of the rules of "the principle of purchase is subject to existing leases, leasing right is prior" in the judicial practice of some relevant laws like "Property Law","Assurance Law"and "Contract Law". We should put emphasis on the authenticity and the good faith of the lease contract, balance the interests in all directions and implement the display system of leasehold so as to improve gradually the system of the leasing right has the nature of property.