On The Effectiveness And Implementation Of The Bankruptcy Protection Of Preliminary Registration Of Commercial Housing

Preliminary registration system has been designated to ensure the fulfillment of the rights of preliminary registration obligee,restrain the disposal of real right of oblige from infringement of the rights of the preliminary registration obligee and safeguard the obtaining of real right of preliminary registration obligee so as to secure the transaction safety and elevate the transaction efficiency.It has been generally accepted that the fulfillment of the purpose of preliminary registration system and exertion of the function of preliminary registration system shall set the force of preliminary registration system for the rights of preservation,syn-position reservation and bankruptcy protection.The state law of real right stipulates that no legal effect shall incurred if the obligee,after the preliminary registration,disposes the real right without the consent of the preliminary registration obligee,and similar provisions have been provided in the Interim Regulations of Real Estate Registration of State Council and Interim Enforcement Regulation of Real Estate Registration of Ministry of Land and Resources;however,the related laws fails to explicitly provide the bankruptcy protection force of the preliminary registration.The Article XVIII of Enterprise Bankruptcy Law stipulates the rescission right of executory contract of bankruptcy administrator while no exception for preliminary registration obligatory right,which awards the possibility of discharging of preliminary registration obligatory right of the bankruptcy administrator.The recognized theory of theoretical circle states that the preliminary registration has bankruptcy protection force;however,the reasons of bankruptcy protection force of preliminary registration have been rarely discussed.Given the mechanical application laws in the judicial trial practice fails to acknowledge the bankruptcy protection force of the preliminary registration for advance sale of commercial housing,it makes the purpose of preliminary registration system fails,right protection unbalances,and the position of obligee of preliminary registration of advance sale of commercial housing throws into passivity.The first section overviews the related provisions of the preliminary registration system and bankruptcy law,and the phenomenon the imbalance of right protection of obligee caused by the failure of the purpose of preliminary registration and unsafeguarded right of preliminary registration obligee of the advance sale of commercial housing in the judicial trial practice.The second section sorts out the judgments of the dispute cases of preliminary registration sales contract of the advance sale of commercial housing in the judicial trial practice of the courts in various regions,and introduces the phenomenon of un-acknowledgement of bankruptcy protection force of the preliminary registration by courts of various regions and two representative judgments of different treatment of registration obligee of plaintiff.The third section expounds the jurisprudential basis of the bankruptcy protection force of the preliminary registration for advance sale of commercial housing,reviews the recognized theory of the preliminary registration force,argues the justification of bankruptcy protection force of the preliminary registration for advance sale of commercial housing,discusses the justification of the bankruptcy protection force of the preliminary registration from the perspectives of purpose,function,nature and benefit balance principal of preliminary registration principal and critically interprets the different judgment opinions.The fourth section discusses the fulfillment path of bankruptcy protection force of the preliminary registration for advance sale of commercial housing and determines the bankruptcy protection force of the preliminary registration from the restriction of the application of Article XVIII of Bankruptcy Law and the teleological interpretation,comparative interpretation of Article XX of Law of Real Right.The fifth section analyzes the protection of rights and interests of the preliminary registration obligee of the advance sale of commercial housing in the bankruptcy procedure under different circumstances.The sixth section is conclusion,briefly summarizing the arguments of this paper.