破产程序中房企按揭保证金问题研究

Research of Mortgage Margin of Real Estate Enterprises in Bankruptcy Procedure

在房地产开发企业破产案件中,其与银行签订的按揭保证金合同应当具有金钱质押的效力,是名副其实的保证金合同。因此户内保证金属于破产债务人财产。同时,该合同符合《破产法》第18条之规定,管理人有权经"报批"和"通知"程序后依法予以解除,并要求银行返还保证金。对于银行在房企破产前6个月的划扣部分,则应当被认定为个别清偿,破产管理人可行使撤销权依法要求返还。

In the bankruptcy cases of real estate development enterprises, the mortgage margin contract signed by and between the bank and enterprise should have the force of money pledge, which is an authentically margin contract. Therefore, the household margin is deemed to be the property of the bankrupt debtor. Meanwhile, the contract is in accordance with the provisions of the 18th article of the Bankruptcy Lawandthe administrator shall be entitled to legallyterminate the contract after “approval” and “notification” procedures and request the bank to return the security deposit.For the part of margin deducted by the bank six months prior to the real estate enterprise’s bankruptcy, it should be identified as a particular liquidationand the bankruptcy trustee can exercise the right of rescission in accordance with the law and claim for margin return.