后《民法典》时代房地产开发企业破产中购房人权利保护研究

Research on the Protection of House Buyers’Rights in the Bankruptcy of Real Estate Development Enterprises in the Post-Civil Code Era

基于生存利益保护的价值理念,司法解释设定了购房人优先权利。在房地产开发企业破产中,这一优先权涉及购房人、建设工程承包人、金融机构抵押权人等多方主体的直接权利冲突,更具复杂性。《民法典》生效后,《优先权批复》已被明文废止,在《民法典》以公示登记为中心的权利冲突受偿顺位规则指引下,应结合预告登记制度重新建构购房人优先权利认定要件,以减少隐性担保,维护交易安全。在符合优先权利认定要件下,已交清房款的购房人享有取回权;未交清房款的购房人,其债权享有破产保护,有权就预告登记的债权向管理人请求继续履行。

Based on the concept of survival interest protection,the judicial interpretation sets up a priority right for house buyers.In the bankruptcy of the real estate development enterprises,the imposition of the priority right involves the direct conflict of the rights of multi-parties including house buyers,construction contractors,and financial institution mortgagees,making it far more complicated.After the Civil Code came into force,The Official Reply of the Supreme People’s Court on the Issue Concerning the Priority of Claim for Construction Projects has been abolished in explicit terms.Under the guidance of Civil Code’s sequence rule of compensation for conflict of rights centered on public registration,the registration of priority notice system should be combined with the reconstruction of the identification requirements of priority right of the house buyer,so as to reduce the implicit guarantee and maintain transaction security.When meeting the conditions of priority right identification,the house buyer who has paid the full amount enjoys the right of recall.Those who have not done the full house payment shall enjoy bankruptcy protection of their rights as creditors,and shall have the right to request the bankruptcy trustee to continue to perform the creditor’s rights registered in priority notice.