Research On The Protection Of Buyers ' Rights In The Bankruptcy And Liquidation Of Real Estate Enterprises

Facing the break of capital chain and insolvency,real estate development enterprises need to deal with the creditor-debt relationship through bankruptcy procedure.The bankruptcy of housing enterprises has a variety of path choice,after bankruptcy restructuring to restore vitality,or reconciliation procedures to resolve the crisis,more real estate development enterprises have embarked on the road of bankruptcy and liquidation.In the bankruptcy and liquidation procedure of housing enterprises,under the condition that all kinds of rights coexist,the conflict of right settlement is inevitable.In the bankruptcy cases of housing enterprises,there are a wide range of rights involved,including real estate development enterprises,buyers,construction contractors,construction workers,building materials suppliers,financial institutions mortgage holders and so on.The creditor's rights and interests have particularity and there is a conflict of value.The compensation right of construction project price protects the rights and interests of construction workers,the financial security of Bank mortgage loan,and the priority of the buyer's right to be paid involves the right to subsistence and the protection of real right.The bankruptcy of housing enterprises involves a large number of rights holders,in the different subjects will produce a complex legal relationship.The relationship between the sale and purchase of a real estate enterprise and the buyer,the relationship between the buyer and the mortgagebank,the relationship between the mortgage loan between the bank and the real estate enterprise,the contract relationship between the construction project between the real estate enterprise and the contractor,the labor contract relationship between the contractor and the construction worker,etc.When the housing enterprises bankruptcy insolvent,all kinds of legal relations are intertwined,balancing the interests of the various subjects tend to be complicated.Different levels of value conflict reflect the protection of different legal benefits,into the bankruptcy liquidation proceedings in the liquidation,will directly affect the realization of individual creditor's rights and interests.According to article II of the Supreme Court's approval of priority compensation for construction project Price,a purchaser who pays all or most of the price may receive a priority compensation for the project price enjoyed by the contractor.Theorists have disputes over the ability of buyers to enjoy preferential repayment rights on the basis of approval.The reason is that the law does not directly provide for the priority of the buyer's right to be paid,the priority right of compensation is only for the Shanghai High Court in the property disputes and enforcement cases of the contract law No.286 case approval.The approval appeared before the enterprise bankruptcy law,and there was a lack of orderly connection with the subsequent bankruptcy law and judicial interpretation.At the same time,the approval is contrary to the equality of the creditor's rights and the general principle that the real right takes precedence over the creditor's rights,and lacks the accompanying publicity system.In judicial practice,due to the problem of the legislative level of the priority compensation right of the purchaser,it leads to the confusion of the application of the law.The scope of the right of the buyer to give priority to the right to compensation is unclear.What rights do buyers enjoy priority satisfaction? It is difficult to define the right subject of the buyer's priority right of repayment,and whether all parties who have signed a purchase contract with the housing enterprise have the status of priority compensation.Buyers who are required to pay "most of the purchase money" in the reply can counter the priority claims of construction contractors.But there is a lack of clear criteria for "most of the home purchase money." In bankruptcy,the manager'sneglect of the right to rescind the contract and the overall price change of the construction in progress will have an impact on the buyer's rights.The legal basis of the priority compensation of the purchaser is the theory of real right expectation,the right of survival guarantee and the theory of fair settlement.The real right expectation of the purchaser exists in the notice registration,registers the buyer's claim right in the real estate Register,applies the real right publicity means to the claim right in the debt law,so that it has the real right effect against the third party,thus ensuring the occurrence of the legal result expected by the claim right.In the bankruptcy procedure of housing enterprises,the subject of each creditor's right represents different types of rights and interests,and there is a conflict of rights in the settlement of the same subject matter.For mortgage holders such as contractors and banks,real estate property rights belong to the operating interests;For buyers,the purchase of commercial housing is to protect their survival rights and interests.The protection of the priority compensation right of the purchaser is based on the social policy consideration that the survival rights and interests are higher than the operational interests,which embodies the value judgment of the priority protection of the weak.Compared with the mortgage holders of financial institutions such as construction contractors and banks,buyers are in a vulnerable position in terms of risk prediction,information collection,loss bearing and so on.The establishment of the priority repayment right of the purchaser takes into account the public interest and the social interest,and realizes the fairness and justice in the substantive sense.In the bankruptcy liquidation procedure of housing enterprises,there are differences in the way the buyer's rights are exercised according to whether the house is delivered or not and the performance of the contract is different(continuing to perform the contract and cancel the contract).Specific types: In line with the conditions of delivery of the house,after the renewal to meet the delivery of the house,only pay the deposit of the house,both sides have fulfilled the completed contract,unilateral performance of the completed contract.Buyers in the housing and enterprise bankruptcy liquidation procedures in a special settlement,but not all buyers should have the status of priority compensation.Starting from China's national conditions,it is necessary to distinguish between consumer buyers and investment buyers.With regard to the definition of consumer buyers,reference can be taken to article 29 th of the provisions on consumer rights Protection Law and the Supreme Court's "on several issues concerning the handling of objections and reconsideration cases by the people's courts".The main body of consumer buyers should be natural persons,legal persons or other organizations excluded.The purpose of buying a house should be to meet the demand for consumption,and the buyer for the purpose of operation does not belong to the "consumer-type buyer".In practice,it is difficult to distinguish whether the buyer's purpose is consumption or investment.In this regard,reference can be made to the "only housing standard","used to live and no other housing in the name of the House",in particular,can be combined with the number and nature of the house purchased by the buyer to make a specific judgment.In the case of "housing debt",nominal buyers do not meet the definition of "consumer-type buyers".The main body of the article is divided into three parts.The first chapter analyzes the current situation of the protection of the rights of buyers in the bankruptcy liquidation procedure of housing enterprises.In contrast to the bankruptcy of other enterprises,the bankruptcy of housing enterprises involves a wide range of rights,diversity of debt types,interweaving of multiple legal relations,complex property identification,and greater social impact.In the lack of system at the technical level of legislation,the approval of the priority right of repayment is deviated from the principle of equality of claims,the general principle that the real right takes precedence over the creditor's rights,the disconnect between the relevant legal judicial interpretation,the judicial interpretation is not enough to become the legal basis for the buyer's priority right to be paid,and the lack The priority of the buyer's right to be paid has brought confusion to the judicial practice in the imperfection of the legislation,which leads to the confusion of the application of the law.The main performance is the vague definition of the right of the buyer's priority right to be paid,the unclear type of buyer who enjoys priority,the Administrator's neglect to exercise the right of rescission,the unknown proportion of "most of the purchase money",andthe transfer of the variable price of the construction in progress.The second chapter discusses the current situation of the right of buyers to exercise in the bankruptcy and liquidation of housing enterprises.By using theoretical analysis,this paper demonstrates the rationality of the priority compensation right of the purchaser from the angle of protecting the survival rights and interests and implementing the substantive fairness.The exercise of the right of the purchaser is divided into three kinds of housing according to the housing delivery and the Contract Fulfillment status area: The house which meets the conditions of delivery,the House that meets the conditions of delivery after the renewal,the house that only pays the deposit,the contract that the two sides have fulfilled,and the contract that has been completed unilaterally.The third chapter mainly aims at the problems existing in the legislative technology and judicial practice of the buyer's priority right of compensation,and puts forward the corresponding legal suggestions to protect the buyer's priority right of compensation.On the micro level,it is clear that the scope of the right of the buyer's priority right of compensation is the right of claim of real right,and the main body of the buyer's priority right of compensation is limited to the consumer type buyer.With regard to the definition of consumer buyers,reference can be taken to article 29 th of the provisions on consumer rights Protection Law and the Supreme Court's "on several issues concerning the handling of objections and reconsideration cases by the people's courts".The main body of consumer buyers should be natural persons,legal persons or other organizations excluded.The purpose of buying a house should be to meet the demand for consumption,and the buyer for the purpose of operation does not belong to the "consumer-type buyer".In practice,it is difficult to distinguish whether the buyer's purpose is consumption or investment.In this regard,reference can be made to the "only housing standard","used to live and no other housing in the name of the House",in particular,can be combined with the number and nature of the house purchased by the buyer to make a specific judgment.In the case of "housing debt",nominal buyers do not meet the definition of "consumer-type buyers".Construct the specific legal system of the priority compensation of the purchaser onthe macroscopic basis,stipulate the priority right of the buyer to be paid in the bankruptcy law,strictly standardize the choice of the administrator's contract,limit its unreasonable use of the right of rescission,and prevent the manager from neglecting to exercise the right of rescission of the contract.To improve the application of the notice registration system in the bankruptcy liquidation procedure of housing enterprises,and give full play to the three effects of security rights,preservation and bankruptcy protection.The conflict of rights in the field of bankruptcy is the most obvious,in order to ensure the substantive fairness of the settlement of bankruptcy claims,the vulnerable groups should be given tilt protection,giving the buyer the status of priority compensation.