The Conflict And Solution Of Mortgage And Lease Right In Execution

The nature of mortgage and leasehold determines that both of them can exist together in the same real estate,when the mortgagee applies for the court to enforce the real estate mortgage,the conflict between the mortgage right and the lease right comes into being naturally.However,the current theoretical research on this issue is basically from the perspective of substantive law to explore the relationship between mortgage and lease rights,rarely from the perspective of procedural law to examine this issue.In the judicial practice,especially in the process of civil execution,there are many conflicts between them,and there are many problems in how to resolve the conflict between them.Therefore,the study of the conflict between the lease right and the mortgage is of great value to both theoretical research and judicial practice.The first part of this article is to discuss the problem of the formation of the conflict between the mortgage and the lease right and the current predicament of the application of the legislation in our country.First of all,it analyzes the nature of mortgage and lease,and points out that both can coexist and also bury the hidden trouble of conflict.Second,through combing the legislation of our country,including laws,regulations,judicial interpretation,etc,it points out that the current legislative power is not caught,and can not cope with the various kinds of impact between the mortgage right and the lease right in execution process.The second part is the analysis and research of the status quo,through the relevant data statistics and typical case analysis,to extract the court in the judicial practice to resolve the conflict had to face a few problems.It includes the judgment of the mortgage and the lease right,the disposal of the lease right when the mortgage is realized,the relief of the mortgagee and the lessee,and so on.The third part,through comparative analysis,including the discussion of the mode of handling the rights burden in the compulsory auction of real estate and the analysis and comparison of the legislation of Taiwan,South Korea,Japan and Sweden,compared with the legislative predicament of our country before,it summarizes the place that our country needs to learn and learn from,especially the clear standard of the relationship judgment and the standard of removal of the lease right,removed procedures,etc.The fourth part is about the disposal of the lease right when the mortgagee is required torealize the mortgage.First,to determine the criteria for the judgment of the relationship,it is necessary to comprehensively consider the time of the lease contract,the delivery of the rent,the court attachment time,the lease registration record,the lessees possession of the mortgaged property and other factors,and then compared with the time point of mortgage registration.Second,establish the principles that should be followed when dealing with the conflict,and at the same time,we should respect the right of disposition of the parties and give consideration to the efficiency of execution.Third,put forward the mechanism of handling,emphasizing the importance of the implementation of the hearing in resolving the conflict between the mortgage right and the lease right;to determine whether the lease right affects the standard of the mortgage right,and on the basis of referring to the Swedish double quotation method,this paper puts forward the judgment standard suitable for our country;and detailed procedures for the removal of leasehold.The fifth part is the perfect suggestion about the right relief of the relevant subjects in the process of conflict resolution.Specifically,including the lessees objection to the lawsuit,the right of priority to purchase,the priority of the right to compensation,the suspension of vacations;the mortgagees application for executors objection;following the objection of the mortgagee;the buyers right to apply for compulsory execution by the court.