房屋租赁登记备案效力案例分析
发布时间：2018-10-08 09:30
【摘要】：上海市的朝旭公司承租滨河公司所有的房屋，在征得滨河公司同意后将房屋转租给蔺州公司。因蔺州公司没有向朝旭公司支付房屋租金，朝旭公司遂将蔺州公司诉至法院，蔺州公司辩称租赁合同没有登记备案，合同无效。本案的争议焦点是房屋租赁合同未经房地产管理部门的登记备案是否有效。本案经过两审，法院都认定原、被告之间签订的房屋租赁合同合法有效，支持了原告的诉讼请求。 与本案有关的理论问题有：一、房屋租赁权的性质。关于房屋租赁权的性质，，理论界有债权说、物权说和债权物权化学说。债权说的理由是租赁权的基础是租赁合同；法律对租赁关系的规制置于《合同法》且《物权法》没有规定房屋租赁权为物权。物权说认为租赁权为用益物权，理由是房屋租赁权人对租赁房屋有直接支配性而无需出租人介入；符合物权法“一物一权”原则；“买卖不破租赁”，租赁权具有对抗效力；租赁权人享有占有保护请求权。债权物权化学说认为，房屋租赁权在本质上为债权，只是国家法律政策基于承租人对租赁房屋享有占有、使用和收益的权利，给予弱势的承租人以倾斜性保护，赋予其在一定条件下可对抗第三人。笔者赞同债权物权化学说。二、房屋租赁登记备案的立法目的转变和完善。我国实行房屋租赁合同登记备案的起初目的是行政审批和行政征收，而后有所转变，但其也具有公示公信的功能。《商品房租赁办法》对房屋租赁登记规定的还不够完善。笔者认为，应将房屋租赁登记备案纳入不动产登记部门统一登记。三、有学者认为，房屋租赁合同的登记备案与合同的效力无关。事实上，经登记备案的房屋租赁合同才应具有对抗效力。这既符合公平正义原则，也更有社会效果。 本案的一审和二审法院的判决都存在有一些问题。一审法院的判决书的判决理由不够充分，没有引用最高人民法院《合同法解释（一）》，判决合同解除的理由错误，没有适用约定解除而直接适用协议解除；二审法院依据地方法规认为合同的登记备案具有对抗效力，这与《物权法》和《合同法》的规定相抵触。从法律解释、适用的思路分析，笔者认为可以直接引用最高人民法院《合同法解释（一）》的规定，合同的有效与否应该以法律、行政法规为依据，从而认定合同合法有效。透过最高院的司法解释与部门规章冲突的现象，指出法律需要对利益冲突进行取舍和平衡。
[Abstract]:Zhaoxu Company in Shanghai rents all the houses owned by Binhe Company and sublets them to Linzhou Company with the consent of Binhe Company. Because Rushou did not pay Zhaoxu the rent of the house, Chaoxu sued Linzhou in court, arguing that the lease contract was not registered and the contract was null and void. The dispute focuses on the validity of the housing lease contract without registration by the real estate management department. After both trials, the court found that the house lease contract signed between the defendants was legal and valid, supporting the plaintiff's claim. The theoretical issues related to this case are as follows: first, the nature of the right to rent houses. As to the nature of house lease right, there are claims theory, real right theory and real right chemistry theory. The reason of the claim is that the lease right is based on the lease contract, and the regulation of the lease relationship is placed in the contract law and the property law does not stipulate that the right to rent the house is the real right. The theory of real right thinks that the lease right is usufruct right, the reason is that the owner of the lease right has direct control over the leased house without the lessor's intervention; it conforms to the principle of "one thing one right" in the property Law; "buying and selling the lease does not break the lease", and the lease right has the antagonistic effect; The leaseholder shall have the right to claim possession and protection. According to the chemical theory of real right of creditor's rights, the right to rent a house is essentially a creditor's right, only based on the right of the lessee to possess, use and benefit from the leased house, and to give the weak lessee an oblique protection. Give them under certain conditions can be against the third person. The author agrees with the theory of real-right chemistry of creditor's rights. Second, the legislative purpose of housing lease registration and filing is changed and improved. The purpose of the registration and filing of the housing lease contract in our country was administrative examination and approval and administrative collection, but it also had the function of publicizing public trust. The author believes that the housing lease registration record should be incorporated into the real estate registration department unified registration. Third, some scholars believe that the registration of housing rental contracts and the effectiveness of the contract. In fact, the registration of the housing lease contract should have countervailing effect. This not only accords with the principle of fairness and justice, but also has more social effect. There are some problems in the judgment of the court of first and second instance in this case. The judgment of the court of first instance is not sufficient, not citing the Supreme people's Court < interpretation of contract Law (1) >, the reason for the termination of the judgment contract is wrong, there is no applicable agreement to terminate and the agreement is directly applicable. According to the local laws and regulations, the court of second instance considers that the registration and filing of contracts has antagonistic effect, which is in conflict with the provisions of Real right Law and contract Law. Based on the analysis of the legal interpretation and the applicable thinking, the author thinks that the provisions of the Supreme people's Court's interpretation of contract Law (1) can be directly quoted, and the validity of the contract should be based on the laws and administrative regulations, so as to determine the validity of the contract. Through the judicial interpretation of the Supreme Court and the conflict of departmental regulations, it is pointed out that the law needs to choose and balance conflicts of interest.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.181;D923
本文编号：2256278
[Abstract]:Zhaoxu Company in Shanghai rents all the houses owned by Binhe Company and sublets them to Linzhou Company with the consent of Binhe Company. Because Rushou did not pay Zhaoxu the rent of the house, Chaoxu sued Linzhou in court, arguing that the lease contract was not registered and the contract was null and void. The dispute focuses on the validity of the housing lease contract without registration by the real estate management department. After both trials, the court found that the house lease contract signed between the defendants was legal and valid, supporting the plaintiff's claim. The theoretical issues related to this case are as follows: first, the nature of the right to rent houses. As to the nature of house lease right, there are claims theory, real right theory and real right chemistry theory. The reason of the claim is that the lease right is based on the lease contract, and the regulation of the lease relationship is placed in the contract law and the property law does not stipulate that the right to rent the house is the real right. The theory of real right thinks that the lease right is usufruct right, the reason is that the owner of the lease right has direct control over the leased house without the lessor's intervention; it conforms to the principle of "one thing one right" in the property Law; "buying and selling the lease does not break the lease", and the lease right has the antagonistic effect; The leaseholder shall have the right to claim possession and protection. According to the chemical theory of real right of creditor's rights, the right to rent a house is essentially a creditor's right, only based on the right of the lessee to possess, use and benefit from the leased house, and to give the weak lessee an oblique protection. Give them under certain conditions can be against the third person. The author agrees with the theory of real-right chemistry of creditor's rights. Second, the legislative purpose of housing lease registration and filing is changed and improved. The purpose of the registration and filing of the housing lease contract in our country was administrative examination and approval and administrative collection, but it also had the function of publicizing public trust. The author believes that the housing lease registration record should be incorporated into the real estate registration department unified registration. Third, some scholars believe that the registration of housing rental contracts and the effectiveness of the contract. In fact, the registration of the housing lease contract should have countervailing effect. This not only accords with the principle of fairness and justice, but also has more social effect. There are some problems in the judgment of the court of first and second instance in this case. The judgment of the court of first instance is not sufficient, not citing the Supreme people's Court < interpretation of contract Law (1) >, the reason for the termination of the judgment contract is wrong, there is no applicable agreement to terminate and the agreement is directly applicable. According to the local laws and regulations, the court of second instance considers that the registration and filing of contracts has antagonistic effect, which is in conflict with the provisions of Real right Law and contract Law. Based on the analysis of the legal interpretation and the applicable thinking, the author thinks that the provisions of the Supreme people's Court's interpretation of contract Law (1) can be directly quoted, and the validity of the contract should be based on the laws and administrative regulations, so as to determine the validity of the contract. Through the judicial interpretation of the Supreme Court and the conflict of departmental regulations, it is pointed out that the law needs to choose and balance conflicts of interest.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.181;D923
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