论以租抵债协议的法律性质及其效力认定

On the Legal Nature of the Agreement to Pay off Debts with Rent and its Effectiveness

当前法院为了防范虚假租赁规避执行,多将以租抵债协议纳入涉嫌虚假租赁的行列,忽视了真实有效以租抵债协议的性质及效力。在没有明确法律规制的情形下,法院对以租抵债协议性质的裁判观点多有矛盾。以租抵债协议实际上是新债清偿的一种形式。新债与旧债并存,当事人双方受到新旧债的双重约束。因此,应当在一定条件下承认债权人享有承租权,同时认可以租抵债协议可以产生租赁权“物权化”效力,适用优先购买权和买卖不破租赁规则,但应对“物权化”效力的认定采取更加审慎的态度。

In order to prevent false leases from being circumvented, the current court will include the agreement to pay off debts with rent as a suspected false lease. This ignores the nature and effectiveness of the real and effective agreement to pay off debts with rent. In the absence of clear legal regulation, the court has many contradictions on the referee's views on the nature of the agreement to pay off debts with rent. The agreement to pay off debts with rent is actually a form of new debt settlement. New debts coexist with old debts, and both parties are subject to the dual constraints of new and old debts. Therefore, under certain conditions, the creditor should be recognized as having the right to rent, and at the same time, the agreement to pay off debts with rent can produce the effect of the "property right" of the lease right, and the pre-emptive right and the sale and purchase do not break the lease rule. However, a more cautious attitude should be taken in the determination of the effectiveness of “property rights”.