商品房抵押权预告登记的效力探析

发布时间：2019-03-18 09:43

【摘要】：商品房抵押权预告登记体现于《物权法》第20条,法律赋予这种预告登记的行为具有物权效力,即对后来发生的与该请求权内容相同的不动产物权的处分行为,具有对抗性。商品房抵押权预告登记具有公示、保全、顺位等效力,但由于抵押权的预告登记仍区别于正式登记,其需要在能够进行不动产登记之日起三个月内申请登记,故在具体的司法实践中,对商品房抵押权预告登记后是否享有优先受偿权存在众多截然相反的判决。单从杭州地区看,有法院支持有抵押权预告登记的债权优先受偿,也有法院不支持,甚至在同一法院中,此类判决也大相庭径,这势必造成法律适用的混乱及民众对此的不理解。本文对商品房抵押权预告登记的效力及各地法院的判决进行简要分析,并结合笔者在实践中遇到的真实案例,对该问题进行探讨。笔者认为应对未在三个月内进行正式抵押登记的情况区别对待,如是承受预告登记义务人的原因造成无法进行正式抵押登记的,预告登记的权利人可就该房屋享有优先受偿权。
[Abstract]:The advance notice registration of the mortgage of the commercial house is reflected in the Property Law> Article 20, and the act of giving such notice registration to the law has the effect of the real right, that is, the disposition of the real right of the real property that is later in the same way as the content of the claim, which is adversarial. The advance notice registration of the mortgage of the commercial house has the effect of publicity, security, and order, but since the advance notice registration of the mortgage is still distinguished from the formal registration, it needs to apply for registration within three months from the date of the registration of the real estate, so in the specific judicial practice, There are many opposite decisions on whether to enjoy the priority right of compensation after the pre-registration of the mortgage of the commercial house. In the view of the Hangzhou area, there is a court that supports the priority of the creditor's right to advance the registration of the mortgage right, and the court does not support, even in the same court, such a judgment is also in court, which will inevitably result in the confusion of the application of the law and the incomprehension of the public. This paper makes a brief analysis of the effect of the advance notice registration of the mortgage of the commercial house and the judgment of the local courts, and discusses the problem in the light of the real case that the author encounters in practice. In the opinion of the author, the case that the formal mortgage registration has not been made within three months shall be treated differently, and if it is unable to carry out the formal mortgage registration due to the reason of receiving the notice of the advance notice, the right of the registered person may have the right to pay priority to the house.
【作者单位】：浙江商祺律师事务所;
【分类号】：D923.2

【相似文献】