论商品房预售后土地抵押权人的困境及出路

On the Predicaments and Solutions of Land Mortgage Holders after the Pre-sale of Commercial Housing

预售商品房之土地使用权已经设立抵押,当土地使用抵押权人无法实现主债权,要求实现其土地使用抵押权,而预售商品房的购房者却要求开发商交付房屋并配合办理房产权证。两种权利冲突的争议引发一方面是因为预售商品房中抵押权人向房管部分签署的"同意预售"证明意义不清,另一方面则是,如果同意预售不代表放弃抵押权,在执行阶段,购房者权利因为涉及到生存权利具有优先性。该冲突的预防,需要管理部门在商品房预售许可证审批中,将"同意预售"的意义明确,并允许抵押权人优先出任或指定预售资金账户的监管银行等来完成;同时,明确界定"生活消费的商品房"的标准,对用于自住的、已经支付了全部购房款的商品房购房者,在善意并履行了预售资金存入监管账户等注意义务后,方可享有优先权。

The land use right of the pre-sold commercial housing has been mortgaged. When the land use mortgage holder is unable to realize the main creditor’s right, he or she is required to realize the land use mortgage, while the buyer of the pre-sold commercial housing requires the developer to deliver the house and cooperate with they buyer to apply for housing property certificate. On the one hand, the dispute between the two kinds of right conflicts is caused by the unclear meaning of "consent to pre-sale" signed by the mortgagee to the housing management part in the pre-sale commodity house. On the other hand, if it is agreed that the pre-sale does not mean that the mortgage is abandoned, in the implementation stage, the right of the buyer has priority because it involves the right to live. To prevent this conflict, the management department needs to make clear the meaning of "consent to pre-sale" in the approval of pre-sale license of commercial housing and allow the mortgage holder to take the post of supervising bank or designate the pre-sale capital account. At the same time, it needs to clearly define the standard of "commercial housing for living consumption". For the commercial housing purchasers who live in their own houses and have paid all the purchase money, their priority can be enjoyed only after the pre-sale funds are deposited into the regulatory account in good faith.