《民法典》中居住权与抵押权的冲突及其消解

Conflict between Residence Right and Mortgage Right in Civil Code and Its Resolution

《民法典》颁布以后,实施了居住权制度,但需要关注同一房屋并存的居住权和抵押权问题,据分析,房屋抵押权设立后,抵押人原则上仍可为他人另行设立居住权,居住权设立后,房屋所有人原则上不能再将房屋进行抵押,但当事人另有约定的除外。当抵押权与居住权在实现权利上产生冲突时,若居住权有偿设立,根据权利设立先后顺序解决纠纷;居住权无偿设立时,在满足限定条件时赋予居住权对抵押权的任意对抗效力。

“Civil code” issued after implemented the household registration system, but it is important to note the same housing and mortgage problems, according to the analysis of the housing after being on the mortgage, in principle can be set up residency for others, but to set up her residency, homeowners can no longer will be housing mortgage in principle, except otherwise agreed by the parties. When there is a conflict between mortgage right and right of residence, if the right of residence is established with compensation, the dispute shall be settled according to the sequence of right establishment. When the right of residence is established free of charge, the right of residence shall be endowed with arbitrary antagonistic effect against the mort-gage when the limited conditions are satisfied.