房地分别抵押贷款纠纷案评析

发布时间：2018-10-14 16:39

【摘要】：随着社会经济的高速发展，房地产抵押已经成为一种重要的融资手段。我国的法律、法规和规章对房地产抵押问题有所规范，如《城市房地产管理法》、《房屋登记办法》、《土地管理法》、《土地登记办法》、《担保法》、《物权法》等。但是目前我国倘无一部完善的不动产登记法，而且关键是现在的不动产登记机构不统一，机构之间的信息衔接沟通做得不够好，仍然无法避免的造成房地分别抵押的情形。对房地分别抵押贷款案进行分析，基于土地使用权与房屋所有权既是相互依附又是相互独立的两种不同的物权，在房地一致原则下，土地使用权抵押权与房屋所有权抵押权的关系也应遵循“地随房走、房随地走”的原则，但在实践中房地分别抵押不应因违反房地一致原则一味绝对的认为其无效，房地分别抵押在保证最后归属一体的情形下，以登记为生效要件和形式要件，两抵押权人就其设定抵押权的土地使用权与房屋所有权各自享有抵押权，而未设定抵押权的土地上的房屋或房屋占用范围内的土地也视为一并抵押，但抵押效力不得对抗就未设定抵押权的财产进行了抵押权登记的抵押权。房地分别抵押分别有效，两项抵押权仅就其设定抵押权的财产分别优先受偿。也就是说在实现抵押权时，就房屋及其占用范围内的土地使用权一并变价，若价款足以清偿两债务，那么分别抵押，分别受偿，若价款不足以清偿两债务，那么两抵押权人就其享有抵押权的抵押物所占变价款中的比例分别优先受偿。当然，若想真正贯彻房地一致原则即“地随房走、房随地走”的原则不再出现房地分别抵押的情形，更为了保障不动产交易安全，有效保护不动产权利人的合法财产权的需要，统一不动产登记机构才是一劳永逸的方法。然而在不动产登记机构尚未统一之前，，要想坚持“房地合一”的立法原意，可以从债权人控制自身风险，抵押权登记机关合理限制，最高人民法院出台相关司法解释等多方面采取相应措施。
[Abstract]:With the rapid development of social economy, real estate mortgage has become an important means of financing. The laws, regulations and rules of our country regulate the issue of real estate mortgage, such as "Urban Real Estate Management Law", "Housing Registration method", "Land Management Law", "Land Registration method", "Guaranty Law", "Real right Law" and so on. But if there is not a perfect real estate registration law in our country, the key is that the real estate registration institution is not unified, the information link and communication between the agencies is not good enough, and it is still unavoidable to cause the premises to be mortgaged separately. Based on the analysis of separate mortgage cases of premises, based on the fact that the right to use land and the ownership of houses are both dependent on each other and independent of each other, under the principle of consistency of premises, The relationship between the mortgage of land use right and the mortgage of house ownership should also follow the principle of "go with the house, go anywhere", but in practice, the separate mortgage of the premises should not be regarded as null and void because of violating the consistent principle of the premises. Under the condition that the premises are mortgaged separately under the condition that the final ownership is integrated, the two mortgagees shall have the mortgage on the land use right and the house ownership right of which they have created the mortgage right, in order to register as the effective and formal elements. But the house on the land without mortgage or the land occupied by the house are also regarded as mortgage together, but the effect of the mortgage shall not be against the mortgage registered on the property without the hypothec. The premises are mortgaged separately, and the two mortgages are preferentially repaid only for the property in which the hypothec is created. That is to say, when the mortgage is realized, the right to use land within the house and its occupied area is subject to change in price. If the price is sufficient to pay off the two debts, then the mortgage is charged separately, and if the price is not sufficient to pay off the two debts, Then the two mortgagees are respectively given priority to the proportion of the mortgage in the variable price. Of course, if you want to truly implement the principle of "go with the house," the principle of "go with the house, go anywhere" will no longer appear the case of separate mortgage of the premises, and in order to ensure the security of the real estate transactions and effectively protect the legitimate property rights of the real estate owners, The unification of real estate registration agencies is the only way once and for all. However, before the real estate registration authority is unified, if we want to adhere to the legislative intent of "the unity of premises," we can control our own risks from the creditors, and the mortgage registration authorities can reasonably limit, The Supreme people's Court issued relevant judicial interpretations and other aspects to take appropriate measures.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.2;D922.29

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