不动产买受人物权期待权的可执行性辨析

Analysis of the Enforceability of Expectant Right of the Buyer of Real Estate

我国以德国期待权制度为蓝本制定的《关于人民法院办理执行异议和复议案件若干问题的规定》第28条,认为买受人满足该条构成要件时享有取得不动产所有权的物权期待权,是具有独立交换价值的现时权利,应纳入买受人责任财产。买受人债权人可查封此种物权期待权,查封应遵循对不动产的查封方式,在买受人取得所有权后其自动转为对不动产所有权的查封,执行债权人基于查封就变价所得享有优先受偿权。自查封物权期待权起,禁止对物权期待权甚至不动产所有权为妨害性处分。买受人因此避免遭受出卖人继续处分不动产的风险,买受人债权人的求偿及其顺位利益得到保障。

Referring to the expectant right system in German law,China has formulated Article 28 of Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Opposition and Reconsideration Cases by People's Courts.This article holds that when the buyer of real estate meets the requirements of this article,he enjoys the expectant right to obtain the ownership of the property.Expectant right is a current right with independent exchange value and should be affiliated to the property.The buyer,as a creditor,can attach this expectant right by the way of seizing the real estate.After the buyer obtains the ownership,the attachment of expectant right automatically turns into the attachment of the real estate,and the creditor enjoys the priority of compensation for the value change in the light of attachment.It is not permitted to take malicious disposal of the expectant right or even the ownership of property since the attachment.Therefore,the buyer is immune from the risk that the seller tears up the contract and trades the real estate with others.The claim interests as well as the priority of compensation of the buyer as a creditor are guaranteed.