论不动产司法拍卖瑕疵担保责任的免除

On the Exemption of Guarantee Liability for Defects in Judicial Auction of Real Estate

司法拍卖中的不动产往往存在质量、面积、房屋朝向等方面的物的瑕疵和用益物权、租赁权等方面的权利瑕疵,如何确定不动产司法拍卖中的瑕疵担保责任成为不动产变价的重要问题。关于不动产司法拍卖瑕疵担保责任免除与否,实践认识并不统一,简单以免责声明将瑕疵承担风险转嫁于买受人的方案颇有市场。不动产司法拍卖瑕疵担保责任的免除不仅要契合实体法上的免责条款、格式条款效力规则,更要在执行法院、被执行人、买受人的瑕疵信息提供和注意义务间寻求合理平衡,以确保发现不动产瑕疵的社会成本最小化。对于不动产司法拍卖瑕疵担保责任免除不能下的具体责任承担,仍应区分权利瑕疵与物的瑕疵,并从执行程序内与执行程序外合理界定拍定人瑕疵担保请求权的行使路径。

Real estate in judicial auctions often has defects in concealed quality,size,house orientation,and other rights defects such as usufructuary rights and lease rights,how to determine the guarantee liability for defects in judicial auctions of real estate has become an important issue in real estate price changes.Practical understandings are not uniform as to whether or not to exempt the guarantee liability for defects in real estate judicial auctions,there is a market for a simple disclaimer statement to transfer the risk of defects to the buyer.The exemption of guarantee liability for defects in judicial auction of real estate should not only comply with the exemption clauses in substantive law and the validity rules of standard clauses,but also seek a reasonable balance between the provision of defect information and the duty of care of the enforcement court,the person subject to enforcement,and the buyer to ensure that minimize the social cost of spotting flaws in real estate.As for the specific liability that cannot be exempted from the liability for defects in the judicial auction of real estate,it is still necessary to distinguish between defects in rights and defects in property,and reasonably define the exercise path of the auctioneer's right to claim for defects in the execution procedure and outside the execution procedure.