Study On The Priority Of Buyers In The Real Estate Enterprise Bankruptcy

2002 Supreme People's Court promulgated the "Construction Priority of Compensation approved" (hereinafter referred to as "approved") is based on the "Contract Law" Article 286 Additional provisions applicable to "approved" the establishment of a second the purchase money to pay all or most of the buyers preference to the right of repayment of the construction cost. Real estate bankruptcy, involving stakeholders complex, priority for repayment of the construction contractor, mortgagee's security interests, buyers who purchase debt and general debt and other, both have property rights claims, then the face of bankruptcy liquidation, liquidation how to arrange pick these stakeholders is the critical issue, especially for buyers who take it according to "approval" have priority claim has been a lot of controversy. The tenor of the principle of security interests and claims of equality in theory, unless the law provides for such priority right to be repaid, otherwise it should not have property rights and the general effect is better than the mortgage debt guarantees, because this would be contrary to. However, from the perspective of social practice, buyers relative to the developers, the mortgagee is in weak position, seems to have the right to establish such a priority claim is necessary."The original intention of legislation approved" article second of the purchase is to protect the people's right to life, hope that the home ownership, in accordance with the relevant laws and policies, has certain rationality, but the priority setting must be directly provided by law, judicial interpretation is not a separate creation, in addition to the rules in the application of the abstract fuzzy, lack of publicity system, resulting in bankruptcy practice to enjoy the priority of the purchase scope unceasing expansion, and even find ways to purchase rights in other creditors before repayment, positioning this "super priority", caused great controversy with other creditors, especially in the case of financial institutions. Therefore, must through the law clearly the priority, be characterized as a legal real right for security, "replied" at the same time to establish specific rules (i.e. buy for living, its name no longer available for housing and paid more than 50% of the purchase of personal consumption is to enjoy the priority claim the purchase), which was used to link up effectively; also need to improve the registration system, by giving the purchase registration request right, and establish the system with guarantee rights, the preservation of overall, three bankruptcy protection effect, and give full play to the system in the purchase priority claim to the role of publicity to protect the safety of transactions.