案外人以房抵债权利排除强制执行路径之探析

The Analysis of the Way that the Non-Litigants Exclude the Enforcement of the Right of Mortgage

债权人和债务人约定以案涉房屋抵偿其所欠债务,但尚未将该债权人记载于不动产登记簿。我国法律目前尚未明确规定该债权人是否等同于一般不同产买受人,据此,案外人以房抵债权利能否排除强制执行司法实践认定不一。将以房抵债协议分两类讨论:“以房抵债协议式”、“买卖合同式”,即当事人只有在通过签订的买卖合同形成以房抵债合意情况下,才认定其具备真实购房目的,属于一般不动产买受人,符合《异议复议》第28条之规定,能够排除法院的强制执行。

Creditors and debtors agreed to case housing to pay off its debt, but the creditors have not been recorded in the real estate register. The law of our country has not clearly stipulated whether the creditor is equal to the general different property buyer, so the judicial practice is not consistent whether the outsider can exclude the enforcement of the creditor’s right of house mortgage. Housing mortgage agreement is divided into two types to discuss: “Housing mortgage agreement”, “Sales contract”, that is, the parties only through the signing of a contract to form a housing mortgage agreement in the case of consent, only then it is considered that it has the true purchase goal, belongs to the general real estate buyer, conforms to “The Objection Reconsideration” the Article 28 stipulation, can exclude the compulsory execution of the court.