不动产抵押权与租赁权之竞合

发布时间：2018-08-05 13:24

【摘要】：实践中,当抵押权人或执行债权人为了实现抵押权而拍卖不动产抵押物时,抵押权人与承租人之间产生的纠纷屡见不鲜。虽然我国相关法律中确认了“抵押不破租赁”规则,但在适用中尚存在诸多问题。因此,研究“抵押不破租赁”规则的适用限度,无论对法律理论研究还是实际审判工作都有非常重要的意义。本文第一部分是对不动产抵押权与租赁权竞合现象概述。首先界定不动产抵押权和租赁权的性质。其次通过分析先抵押后租赁、先租赁后抵押的不同情形,全面阐述“抵押不破租赁”的理论根据。本文第二部分“抵押不破租赁”规则比较法分析,通过比较日本、韩国和我国台湾地区对于“抵押不破租赁”规则的立法原则,总结了这些国家和地区立法实践对我国的启示,必须完善“买卖不破租赁”制度规则,将典权规则列入《物权法》范畴,建立有效的不动产租赁登记制度。本文第三部分通过分析我国司法实践中引用《物权法》、《担保法》、《合同法》等相关法律中“抵押不破租赁”规则时出现的几个问题,提出了在司法实践中把握“抵押不破租赁”规则适用的限度问题,重视租赁合同的真实性、善意性,合理平衡各方利益,实施租赁权公示制度,使租赁权物权化的规则体系逐步完善。
[Abstract]:In practice, when mortgagee or execution creditor auctioned real estate mortgage in order to realize mortgage, disputes between mortgagee and lessee are common. Although the rule of "mortgage does not break lease" has been confirmed in the relevant laws of our country, there are still many problems in its application. Therefore, it is of great significance to study the applicable limits of the rule of "mortgage without breaking lease", both in the study of legal theory and in the practical trial work. The first part of this paper is a summary of the competing phenomenon of real estate mortgage and lease right. First of all, define the nature of real estate mortgage and lease right. Secondly, by analyzing the different situations of first mortgage and lease and then mortgage, the theoretical basis of "mortgage unbroken lease" is expounded. The second part of this paper is the comparative analysis of the rules of "mortgage unbroken lease". By comparing the legislative principles of Japan, South Korea and Taiwan, the author summarizes the enlightenment to our country from the legislative practice of these countries and regions. It is necessary to perfect the rules of the system of "buying and selling unbroken Lease", to include the rules of pawning rights in the category of Real right Law, and to establish an effective registration system for real estate leases. In the third part of this paper, the author analyzes several problems that arise when the rules of "mortgage does not break lease" in the relevant laws, such as "property Law", "Security Law", "contract Law" and so on, are cited in the judicial practice of our country. This paper puts forward the limitation of the rule of "mortgage without breaking lease" in judicial practice, attaches importance to the authenticity, goodwill, reasonable balance of the interests of all parties, and implements the system of publicizing the lease right. The rule system that makes the leasehold right real right becomes perfect step by step.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923

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