涉商品房消费者之执行异议之诉的若干要件分析

Analysis of Several Elements of the Lawsuit of Objection to Execution Involving Commercial Housing Consumers

自商品房消费者权利产生的实践目的分析,其在于保护弱者的生存性权益,学理上的物权期待权理论也为商品房消费者权利的优先性提供了支撑。商品房消费者权利优先性的体现,需要依附在金钱债权的执行语境中,在因非金钱债权人申请的给付之诉、所有权确认之诉引发的执行异议之诉中,商品房消费者权利不必然具有优先性。房屋买受人是否具备消费者的身份,需要结合房屋的规划用途和买受人家庭名下的房屋数量进行判断,除此之外,商品房消费者权利是否能够对抗担保物权和其他债权,还需要结合书面合同的签订时间节点和房屋价款的支付比例及后续支付效果来确定对抗性要件是否具备。

Based on the analysis of the practical purpose of the generation of consumer rights in commercial housing,it is to protect the survival rights and interests of the weak.The theory of the expectation right of real right also provides support for the priority of consumer rights in commercial housing.The embodiment of the priority of consumer rights of commercial housing needs to be attached to the execution context of monetary creditor's rights.In the execution objection litigation caused by non-monetary creditor's application for prestation and ownership confirmation,consumer rights of commercial housing does not necessarily have priority.Whether the housing buyer has the identity of consumer needs to be judged in combination with the planned use of the house and the number of houses under the name of the buyer's family,in addition,Whether the rights of commercial housing consumers can resist the security interest and other creditor's rights need to be determined by combining the signing time of the written contract,the payment proportion of the house price and the subsequent payment effect.