商品房买卖中买受人与抵押权人的权利冲突研究

Legal Reflections on the Conflicts of Rights between Bargainee and Mortgagee in the Sales of Commercial Estate

在商品房买卖中,买受人在依其与房地产开发商之约定支付购房款,并实际入住所购买的房屋后,开发商未依约定为买受人办理产权过户。在买受人完全不知情的情形下,开发商又将已出售给买受人的房屋抵押给银行,因而在同一个物上既有债权又存在物权,对此法律应当如何调整?尤其在开发商“恶意”抵押时,能否认定抵押无效,并以此来保护“弱势”的买受人呢?对这些问题在理论上加以探究,为将来物权法对此类问题有一个明确的制度安排。

In the sales of commercial estate, after paying for the house according to the contract signed with real estate developer, the bargainee gets settled in the new house. However, the developer doesn＇t transfer the property right to the bargainee according to the contract. With the bargainee knowing nothing about the condition, the developer mortgaged the sold house to the bank; therefore, creditor＇s right and property right exist in one thing. How to deal with such kind of issue？ Can the mortgage be declared invalid in order to protect the right of the barginee？ A study on sueh kind of questions can help to deal with such kind of problems in the future laws relating to rights over things.