商品房按揭贷款保证保险中担保物权竞合问题试析

Issue of Concurrence of Security Interests in Commercial Housing Mortgage Loans Guarantee Insurance

文中认为,商品房按揭贷款保证保险中担保物权竞合的原因是商品房按揭贷款保证保险的设定产生了住房保险金上的物上代位权,而受益人特约实际上设定了保险金债权的质押权,形成了抵押房屋保险金上两个担保物权性质的法律关系的竞合。依据物权法之基本法理与规则,抵押权与质权竞合时何者的效力优先,原则上应根据两权设定的先后定之。商品房按揭贷款中,抵押权成立在先,基于担保物权的共同属性,在此情形下应使先成立的抵押权优先于后设立的质权。

This paper argues that the reasons of concurrence of security interests in commercial housing mortgage loans guarantee insurance was the enactment of commercial housing mortgage loans guarantee insurance produced the subrogation of right of housing insurance,but actually the special beneficiaries set the hypothec of the insurance payment claims,formed the concurrence of legal relationship of two security interests about housing mortgage insurance.According to the basic legal principles and rules of property law,which has effectiveness of priority as the concurrence of hypothec and pledge,in principle,it should be determined based on the setting order of hypothec and pledge.In commercial housing mortgage loans,the hypothec set up earlier,based on the common attribute of security interests,in this case the hypothec has priority over the latter pledge.