The Research Of The Housing Replacement Priority System In Judicial Practice

Theinterpretation of the Supreme People's Court on the application of law of several issues concerning in the case of commercial housing sales contractdisputes,whichestablished the priority system of the housing replacement.This paper,mainly analyzes the nature of the priority system of the housing replacement and the theoretical conflict,then to investigate the mechanisms that the system has to do with other rights in the judicial practice,and puts forward the suggestion of system construction.This article body part is divided into six parts,the main contents are as follows:The first part introduces the priority system of the housing replacement.There is no legislation on the priority system of the housing replacement in China,only the Supreme People's Court has the judicial interpretation of the system,which leads to a conflict betweenthe legal principle of property rights,the principle of public trust in property and the priority.In addition,because the system gives the dismantlees a priority to the property right of the housing replacement,the system also has theoretical dispute with the principle of equal rights.Thesecond part analyzes the nature of the priorityof the housing replacement.First of all,it defines the concept of priority.Secondly,this section describes the characteristics of the right,which has the characteristics of the law,the secrecy,the priority,etc.Finally,this part focuses on the nature of the priority,and the theoretical circle mainly has the special claim,security property and the real right tendency of creditor's right.It is more appropriate to identify the priority as the property right which is transferred from creditor's rights.The third part is the basic question of the housing replacement priority research.An agreement for ownership displacement is an exchange contract,which shall apply to the provisions of the sales contract from the contract law.In addition,in combination with the problems in judicial practice,a brief analysis is made on the subject,the object of application and the statute of limitations.The fourth part mainly discusses the power and the position between the housing replacement priority and the other rights.When the priority of the housing replacement is in conflict with other rights,such as the third party ownership of the house,the construction projects priority of compensation and the pledge right.The application of the individual rights order should be:the priority of the housing replacement is the first order,the third party ownership of the house is the second,the construction projects priority of compensation is the third,and finally the pledge right.The fifth part is case analysis about the housing replacement priority.This section abstracted from the basic facts of the case and the judgment of the referee,and analyzed the theoretical problems related to the disputes of priority,by enumerating cases related to compensation and resettlement contract disputes in judicial practice.The sixth part is about the construction of the priority system of the housing replacement.It is recommended that the general norms of the priority system of the housing replacement be clarified through legislation,at the same time introduce the advance notice registration system,which is an advance remedy to reduce the occurrence of the priority of the housing replacement disputes.