房屋按揭贷款中回购条款的几个法律问题——由一则案例引发的思考

The Legal Problems of Buy-back Clause in Mortgage of House for Loaning

房屋按揭中的回购又称为无力还贷型回购,从条款设立的目的以及回购人履行义务所表现出来的效果来看,将其定性为保证担保行为而不是买卖行为更有利于回购关系中各方利益的平衡,但前提条件是保证人能够行使代位权。在债务人提供担保物的情况下,签订不可撤销回购条款的后果相当于保证人放弃先诉抗辩权。保证人的权益可以通过代位权的行使,在程序上以变更抵押登记或者直接实现抵押权的方式得到相应保障。

Buy-back clause in mortgage of house for loaning is also called buy-back of insolvency. It is regarded as surety ship but not purchase and sale action from the aim and effect of buy-back clause, which is better for balancing the parties in buy-back relationships if the surety has the subrogation. When the mortgage property provided by debtor, the surety who made the irrevocable clause shall undertake the disadvantage from his waiving. The surety＇s can get his procedural protection by exercising his subrogation through changing the registration of mortgage or enforcement the right of mortgage.