商品房预售中与抵押权相关的权益冲突及其立法完善

Conflicts of Rights and Interests Related Mortgage among Commercial House Selling in Advance and Its Legal Perfection

对于建筑工程价款优先受偿权和房地产抵押权的冲突,为平衡承包商与抵押权人的利益,法律可以规定承包商进行垫资的,双方应当就预期垫资款额进行强制公示性登记,该登记款额为承包商行使建筑工程价款优先受偿权的最高限额。如果实际发生的垫资款少于该登记款额,则以实际发生的垫资额为优先受偿权的范围。对于该范围内的优先受偿权应当优先于抵押权和其他债权实现,而不论其发生的时间先后。

In order to balance the benefits of contractors and mortgagees, with regard to the conflicts between prior receiving compensation right of purchasing money of building engineering and mortgage right of real estate, the law can regulate that the two parties must make compulsory public registration for the amount of money paid in advance if the contractors pay the money in advance. The amount of registration money is the highest quota that contractors exercise prior receiving compensation right of purchasing money of building engineering. If the actual amount of money paid in advance is less than the amount of registration money, the scope of prior receiving compensation is the actual amount of money paid in advance. The prior receiving compensation right in this scope should realize prior mortgage and other creditor＇s rights, regardless of its happening time early or late.