On The Protection Of Home Uyers' Priority Under The Circumstances Of Real Estate Development Enterprise Bankruptcy

T'he characteristics of real estate development enterprise bankruptcy lie in the large quantity of creditors,the complexity of legal relations,the particularity of debtor's property and the wideness of social influence.Therefore,it is extremely important to establish fair liquidation as a basic principle of right liquidation,which means some particular subjects are allowed to be protected preferentially,in order to realize substantial fairness.Home buyers' priority is a reflection of fair liquidation principle.How to protect home buyers' priority is a great challenge in judicial practice of bankruptcy law.At present,there are two theories commonly accepted as the jurisprudential basis of buyers' priority,one is the theory of ownership contingent right,and the other is the theory of right to live.However,the theory of ownership contingent right doesn't reflect the feature of buyers7 priority,and the theory of right to live fails to illustrate why buyers'priority is superior to contractors' preferential claim.Besides the theo:ry of right to live,it is suggested that the theory of fair liquidation should be viewed as a supplementary jurisprudential basis of buyers' priority.The problems of buyers' priority exist both in legislative skill and judicial practice.The former one include lack of legal basis by establishing buyers1 priority in judicial interpretation,deficiency in connection with relevant legal norms,deviation from the general principle of real right prior to personal right,inconsistence with the principle of equality of personal right and absence of matched announcement system.The latter one include ambiguity of right scope,difficulty in determination of right subject,lack of uniform standard in how to define "most of purchase money",failure of trustee in bankruptcy to exercise the rescission right of contract and transfer of contracts affiliated with construction in progress at current price.In order to solve the problems above,the author gives some suggestions on how to protect buyers' priority,including the improvement of designation of relevant legal systems,the identification of application conditions of buyersi priority and the normalization of exercise of option by the trustee in bankruptcy.There are three research methods used in this dissertation.One is empirical analysis,which is demonstrated in the brief introduction of a bankruptcy case and another is normative analysis,which is applied in analyzing the jurisprudential basis of buyers' priority through value judgment.The last but not least is comparative analysis,which is targeted in the comparison and analysis of buyers' priority theoretically and practically both at home and abroad,thus bringing forward legal suggestions on the protection of buyer' priority by combining China's actual conditions.