论出卖人在按揭贷款合同纠纷中的诉讼地位——兼评《商品房买卖合同问题解释》第26条、27条

On the Vendor's Litigation Status in Mortgage Agreements Disputes——With a Critique on Articles 26 & 27 of “Interpretations of Agreement for Sale and Purchase of Commercial Housing”

按揭贷款合同的主要当事人是借款购房的买受人和发放贷款的银行。按揭贷款合同发生纠纷,出卖人是否参加诉讼及其诉讼地位是有争议的问题之一。本文认为,出卖人是按揭贷款合同签订、生效后最早实现其经营利益的受益人。当出卖人没有为贷款归还承担连带责任保证、已经交付商品住房并转移所有权的,银行起诉买受人,出卖人不必参加诉讼;尚未交付的,出卖人应当以无独立请求权的第三人参加诉讼。当出卖人为贷款归还承担连带责任保证,不管是否交付商品住房,银行同时起诉买受人和出卖人的,将二者列为共同被告;银行只起诉买受人的,应当追加出卖人列为共同被告;银行只起诉出卖人的,亦须追加买受人列为共同被告。

The parties of the mortgage agreement are the mortgagee / the buyer of the property and the mortgagor bank. In case of disputes over mortgage agreements, it is controversial whether the vendor should participate in the litigation and if yes, what is its status in the litigation. There are provisions on vendor＇ s status in litigation in the ＂Interpretations of Agreement for Sale and Purchase of Commercial Housing＂ that depend on the delivery of the property as well as the assumption of joint and several liability by the vendor regarding the buyer＇ s mortgage. As the vendor benefits directly and immediately from the taking into effect of the mortgage a- greement, this paper argues that, in the absence of the assumption of joint and several liability by the vendor and with the delivery of the property and the assignment of the interests, the vendor shall not participate in the litigation ; the vendor should act as a third party without an independent claim if the property has not been de- livered to the buyer by the time of litigation. In cases where the vendor assumes joint and several liability, regardless the delivery of the property, the vendor and the buyer should be the joint defendants ; if not sued by the mortgage bank, it should be added as the joint defendant.