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

The strict implementation of the regulation and control policy of "No speculation in housing" from the central to the local level and the tightening of loans by banks have caused a large number of real estate enterprises to break their capital chains and declare bankruptcy.The bankruptcy of real estate enterprises is characterized by complex civil legal relationships,multiple creditors,a large number of creditors and a wide range of social influence.The bankruptcy of real estate enterprises undoubtedly has a huge impact on home buyers,and the issue of protecting the rights of home buyers concerns both the livelihood of the country and the harmony and stability of society.At present,China’s provisions on the rights of home buyers in the bankruptcy of real estate enterprises have not been perfected in law,the legislative provisions on the protection of home buyers are few and scattered,there are conflicting judicial interpretations,and there are cases of different judgments in the same case in judicial practice.Therefore,this article takes the rights of home buyers as the object of study,and focuses on the general right to take back of ordinary home buyers,the right of mortgage home buyers and the effectiveness of advance registration from three typical cases.The article is divided into four parts,the first part is the introduction,which describes the background and current situation and defines the concept of homebuyer in this article.The second part briefly describes typical cases and summarizes the points of contention.The third part unfolds the analysis of the theory of the protection of homebuyers’ rights in conjunction with the focus of the dispute.First,it analyzes the application of the general right to take back.The definition of the bankruptcy estate is the key element,and the specific property for which the purchaser has paid for the entire house should not be included in the bankruptcy estate,at which time the purchaser can exercise the right to take back the house.Second,the validity of the contract of sale in exchange for debt and the nature of the purchaser’s claim are discussed.There are two views on the validity and invalidity of the sales contract signed by the parties under the agreement of the debt against the house.Under the premise of recognizing the validity of the sale contract,the nature of the claim of the purchaser of the house against the debt is discussed by situation,and the nature of the agreement of the house against the debt and the purchase contract signed before the expiration of the debt belongs to the security of alienation,and the purchaser of the house against the debt can enjoy the priority of payment based on the security right.The agreements and contracts signed between the parties after the expiration of the debt are agreements in rem,and the purchasers enjoy ordinary claims.Finally,the issue of conflict between advance notice registration and the bankruptcy administrator’s right to discharge is studied.Although the insolvency administrator’s right to discharge is justified,based on the protection of the purchaser’s right to live,priority should be given to protect the right holder of the advance registration,which should be clearly effective for bankruptcy protection against the administrator’s right to unilaterally discharge the sale contract.The fourth part proposes the path to improve the protection of home buyers’ rights.In order to solve the above-mentioned problems,it is suggested that the legislation should improve the definition of bankruptcy property,the system of public notice for housing against debt,and the bankruptcy law should clarify the priority right of home buyers to receive payment,while the pre-sale housing protection system in China can be improved by drawing on overseas experience,so as to better protect the rights of home buyers.