Research On The Legal Regulations Of Renting House After Mortgaged

Mortgage is the security interest that does not take possession of the house as its content.After the mortgager mortgages the property,the mortgaged property can still be leased.Thus,the leasehold and the mortgage right coexist in the same property.The high value of the houses is already a common phenomenon in the current and it also reflects the concept of making the best use of the house.However,once the mortgagor fails to pay off the debts at maturity,when the mortgagee realizes the mortgage right,it will involve whether the lease right will inevitably terminate.If paragraph 1 of Article 66 of the Interpretation of the Guarantee Law and item1 of Article 20 of the Interpretation of Lease Contracts on Urban house are applicable,the leasehold are not binding on the assignee;if the provisions of paragraph 2 of Article 31 of the Auction Sale Regulations apply,the lease right will only be excluded if the leasehold affects the realization of the mortgage.The second sentence of Article190 of the Property Law is not clear about this.And there are different understandings in theory.The second sentence of Article 190 of the Property Law is intended to adjust the relationship between the mortgagee and the lessee,and guarantee therealization of the mortgage;paragraph 2 of Article 31 of the Announcement of Auction Sale stipulates that the leasehold is excluded when there is an impact and it is also the first to guarantee the realization of the mortgage right.What is more,Article66 of the Interpretation of the Guarantee Law and Article 20 of the Interpretation of Lease Contracts on Urban house adjust the relationship between the transferee and the lessee.Because the lack of norms that judged whether the leasehold is excluded,it leads to a conflict of interest between the mortgagee and the lessee that translates into a conflict of interest between the assignee and the lessee.However,the judicial interpretation of the legislation is actually to adjust the relationship between the mortgagee and the lessee.So it must be clear that the leasehold can not affect the realization of the mortgage.By combing the above relevant regulations,you can know that there is no contradiction between the legal norms that adjust the renting situation after the mortgage.First all of,they are all that is to protect the realization of the prior mortgage.Although from the meaning of the text,the Article 66 of the Interpretation of the Guarantee Law adjusts the relationship between the transferee and the lessee.However,it is necessary to accurately grasp the normative purpose,scope and evaluation criteria of the house first mortgaged beforer leased.It should limit the scope of adjustment of the judicial interpretation and clarify the relationship between the leasehold and the mortgage rights adjusted by the regulation.Therefore,the understanding of the second sentence of Article 190 of the Property Law adopts the theory that the leasehold is excluded if it has the influence at the time when the mortgage is realized.The Buying and selling without breaking the lease rule is still applicable.Only the existence of the leasehold affects the mortgage when it is realized,the lease right is excluded.At the same time,Article 31 of the Announcement of Auction Sale as a stipulation of the implementation procedure may be linked to the provisions of the second sentence of Article 190 as the real right Law.Since the idea of excluding the leasehold is adopted,it is necessary to explicitly clarify the standard of excluding the leasehold.However,China's current law does not explicitly stipulatethe standard.There are different theories in the current : the standard of the evaluation price,the standard whether it is taken at the first time of the auction and the standard the double auction method.Considering various factors comprehensively,it is more reasonable to use the evaluation price as the standard.The main point of dispute concerning the initiation of the exclusion of the leasehold when the court auctions the mortgaged property is mainly reflected in: whether the mortgagee includes the court.Since the exclusion of the leasehold has the greatest impact on the mortgagee.In the judicial practice in our country,there are few courts to start ex officio.Therefore,the subject of excluding the lease right is only the mortgagee,not including the court.In the case that the court excludes the lease right,the practice is not uniform and the court should adopt a notice or ruling to maintain the stability of the court's exclusion of the leasehold procedure.After the mortgage is realized,if the leasehold is excluded,the interests of the lessee should be given certain protection at this time.The acquirer through the court auction process obtains the ownership of the house and the lessee needs to return the house.Then,for the lessee,can the mortgagor be liable for compensation?The focus of the dispute is: according to the second sentence of Article 190 of the Property Law,due to the publicity of the registration of the mortgage of the house,when the lessor and the lessee sign the lease contract,the lessee can inquire about the relevant registration information.The lessee take the risk of excluding the leasehold is assumed by itself.According to the provisions paragraph 2 of Article 66 of the Interpretation of the Guarantee Law,if the lessor does not inform the lessee that the house has been mortgaged,the lessor shall bear the lesson after the lease is excluded from the realization of the mortgage.The leasehold is excluded because it affects the realization of the mortgage.The intention is to show that the lessee's leasehold rights cannot be against the mortgage.However,the lessee can still claim that the mortgagor is liable for damages in accordance with the lease contract between him and the mortgagor.Moreover,in the absence of relevant provisions in our country's laws,wecan still learn from the lease law of the Japanese law and the grace period rules in the US law,and give the lessee a certain period of time to find alternative lease items.