The Theory Of Real Estate Enterprise Bankruptcy Buyers Rights Protection

Once real estate enterprises are in the bankruptcy , the property rights protection of houses buyers will influence not only the people's livelihood, but also social harmony and stability. However,the current property right provisions of houses buyers are conflict and dispersed,the rights that buyers can exercise in the bankruptcy proceedings in theory are different from reality. Therefore,from the view of protecting property rights of buyers in the real estate business,this paper analyzes the existing laws and regulations,judicial interpretations and the relevant approval of the order to determine various types' buyers can excise their rights in each stage of real estate enterprises bankruptcy. Firstly,if the buyers who paid off the houses purchase had made housing property registration, they have the right to retrieve the houses when the real estate enterprises are in the bankruptcy according to the recall right.If they not, but had signed a housing sales contracts,there are two theories,object claim right and obligatory claim right .This paper agrees with obligatory claim right, Which buyers can enjoy the right to retake based on claims and ask bankruptcy administrator to make housing property registration. Secondly,it is the right of buyers who did not pay off housing purchase. In the first case ,buyers who paid most of the housing purchase can enjoy the compensation priority that priors to construction project price priority,according to approved provisions .Another case is,when buyers paid only a small part of the housing purchase , if the administrator decides to continue to perform the contract, it shall be paid off at any time as a common interest debt by the bankrupt property. If the administrator decides to terminate the contract, there are two cases ,common interest claim and ordinary creditor's right theory. At present, theoretical realm mostly supports the theory of common interest claims.It is recommended make property rights of housing buyers clearly in the enterprise bankruptcy law .Clearly define that the buyers who paid off the houses have the right to exercise recall right, buyers who paid most of the housing purchase can enjoy the compensation priority right,while claim for restitution of the buyers paid only a small part can be identified as common interest debt. And strictly limit the scope of housing purchase consumers .Houses must be purchased for living and used for individuals.At the same time,to protect the interests of buyers trust.,the situation where administrator can exercise the right to terminal should be limited,which buyers who have made notice registration can limit the right of the administrator to terminate .In order to ensure the safety of transactions, priority right of buyers should be published to introduce publicity effectiveness of real estate notice registration.In order to make the rights of buyers to be more comprehensive protected, consumer housing insurance system should be established as the style of Japan. Regulate that when the buyers pay the house purchase or deposit ,insurance should be made from real estate development companies to insurance companies,to ensure that if the real estate development enterprises are in bankruptcy, property buyers can get the insurance company's priority payment. In addition, as for the interests of buyers after sale ,construction quality insurance system should also be established .To ensure the real estate business after bankruptcy,the interests of buyers after sale could be protected by insurance companies when the housing problem occurs.