| The issue of the Concurrence between real estate mortgage and lease right was first stipulated in the Interpretation of the Guarantee Law,which was subsequently stipulated in the law and judicial interpretation,but there is no clear definition of the applicable relationship between these provisions.The first draft of the “Civil Code Division” has also been revised on the basis of the “Property Law”,but there have been many disputes over the way the lease right is publicized and the protection of tenant's interest has been revised.1.The sorting of the current lawAccording to Article 65 of the Interpretation of the Guaranty Law,the prior lease right can unconditionally oppose the mortgages which established later.The lease right is a kind of creditor's right,and the creditor's right is relative.The third party is not known about whether it has been established or not.If the mortgage right is not established,the mortgagee does not have a lease right,but when the mortgage is realized,the mortgagor colludes with the third party to fabricate the lease contract and sets the lease contract establishment time before the mortgage is established.Whether the contract is true or not,it will inevitably affect the realization of the mortgage.Therefore,the article lacks the criteria for determining the time when the lease right is established,that is,the lack of means to publicize the lease right.the first paragraph of Article 66 of the Interpretation of the Guaranty Law,as long as the lease right is established after the mortgage is established,the buyer of the mortgage is not bound by the lease contract when the mortgage is realized.However,regardless of the way in which the parties realize the mortgage,the change in the ownership of the collateral can be classified as a sale.At this time,the “buy and sell without breaking the lease” rule which is widely recognized in Article 229 of the Contract Law cannot be applied.And according to the interpretation of the drafters of the judicial interpretation,the “sales and sales breaks the lease” is unconditionally applied under the condition.Article 31,paragraph 2 of the the Provisions of the Supreme People's Court on the Auction and Sale of Property in the Civil Execution of the People's Court(hereinafter referred to as the "Auction Sale Regulations"),the leasehold right that has already taken legal effect on the auction property shall be legally borne by the new owner of the collateral,that is to say,the lease contract that has already taken effect on the auction target will not be removed.The exception is that if the lease right is not removed,it will not be unfavorable to the realization of the previously established security interest,and it should be removed according to law and then auctioned.Article 20 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Cases of Disputes over Urban Housing Lease Contracts(hereinafter referred to as "Interpretation of Urban Housing Leasing Contracts" also agrees.In 2007,the Property Law made major changes to the issue of the co-opetition of mortgage rights and leasehold rights on the basis of judicial interpretation,but the interpretation of “the lease relationship must not be against registered mortgages” in Article 190 of the Property Law.However,it has been quite controversial,and the article does not stipulate the publicity method for making the lease rights public.The latter review and the second review draft cut the article.Although the article provides a solution to the lack of publicity of the lease right,the possession of the lease right can be verified.For the applicable relationship of the above-mentioned current regulations:“Interpretation of Urban House Leasing Contracts” clearly stipulates its scope of application.The scope of application of this interpretation is limited to urban housing lease contract disputes;“Auction Sale Regulations” are special provisions,which apply to The civil compulsory auction and sale procedures in the seizure,freezing and seizure;and the "Guarantee Law Interpretation" as a general rule applies to other situations except the above.In addition,in the case of a party's agreement to discount,according to the new law is superior to the old law principle,the Property Law should be applied.2.The publicity method for the counteracting effectiveness of the lease right and the criteria for removing the lease rightFirst,in the case that the court can remove the lease right,the mortgagee should be granted the right to remove the lease right.After the court ruled that the lease should be removed,the lease contract will be terminated.In this case,in order to protect the interests of the lessee,it is possible to learn from the Japanese law on the delayed delivery system.Second,the mortgagor notification obligation stipulated in Article 66,paragraph 2,of the Interpretation of the Guarantee Law is neither necessary nor has legal basis.Third,in the case of renewal of rent,the judgment criteria of the lease right and the mortgage priority should also first determine whether the existence of the lease contract for renewal will affect the realization of the mortgage.Only when the existence of the lease contract for the renewal of the lease adversely affects the realization of the mortgage right,the lease contract for the renewal of the lease should be removed at this time to realize the mortgage.Except in the case where the mortgagee acknowledges the priority effect of the lease contract for the renewal of the lease.Occupation rules have natural ambiguity,the burden of proof of possession is difficult to allocate,and the determination of possession of facts is severely consuming human and financial resources,All these reasons prove that possession is not suitable as a standard for identifying whether the lease right is publicized or not.But registration has the advantage of complying with laws and trading habits.2.The situation of conflicts between mortgage rights and lease righton real estate can be divided into “mortgage after lease” and “lease after mortgage”.In the case of “mortgage after lease”,the lease right is not affected when the mortgage right is realized,in the case of “lease after mortgage”,when the mortgage is realized,the party can apply and the judge or the auction house can also judge whether the existence of the lease right will affect the realization of the mortgage right.If the existence of the lease relationship has no negative affect on the realization of the mortgage right,the “Buy and Sale without Breaking Lease” rule is still applicable when the mortgage is realized.If the existence of the lease right adversely affects the realization of the mortgage,the judge or the auction house may first remove the lease right and then realize the mortgage.At the same time,in the case of “lease after mortgage”and the existence of the lease right affects the realization of the mortgage right,in order to protect the lessee who is at an economic disadvantage,it should learn from “Deferred Delivery System” in the provision of 395 of Japanese Civil Code.In addition,in the case of the lessee renewing the lease,the renewal of the lease only maintains the identity of the debt,and the lease contract is a new lease relationship for the mortgagee,the priorities of mortgage and lease rights should be determined according to the time after the lease contract's renewal.This paper clarifies the applicable relationship between the legal and judicial interpretations when the real estate mortgage and the lease rights conflict,and strongly demonstrates the author's main points through comparative law research and practical case studies.I hope that Provide some insights into the resolution of the conflict between real estate mortgage and leasehold rights.Besides the above problems,the academic community has also disputed the scope of application of "buy and sell without breaking the lease".This article fails to explore this issue,but it is also worthy of further study. |
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