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我国《物权法》第190条对抵押财产出租时抵押权与租赁权的关系做了简要的处理。但是为了更好地协调抵押权人与租赁权人的利益冲突,还需要明确以下几个问题:在租赁权顺位的判断上,应该以租赁登记作为基础标准,辅之以抵押财产占有的标准;在此基础上,租赁关系只有影响在先抵押权实现时才能由抵押权人依照法定程序予以去除,抵押财产之买受人不享有此项权利。租赁关系被除去之承租人,应该配备优先购买权、优先受偿权以及缓期交付制度,以衡平利益之损失。至于抵押合同订立后抵押权成立前设立的租赁关系,应该赋予其对抗抵押权的效力。
Article 190 of the “Property Law” of our country made a brief treatment of the relationship between the mortgage and the right to lease when the mortgage property was rented out. However, in order to better coordinate the conflicts of interest between the mortgagee and the tenant, the following questions need to be clarified: In the judgment of the tenancy of the tenancy, the registration of the tenancy should be taken as the basic standard and the standard of the possession of the mortgaged property ; On this basis, the lease relationship can only be removed by the mortgagee in accordance with the statutory procedure when it affects the realization of the prior mortgage, and the buyer of the mortgaged property does not enjoy this right. The lessee whose lease is removed should be equipped with a preemptive option, a priority claim, and a lapse delivery system to balance the loss of profit. As for the mortgage contract set up after the establishment of the mortgage before the establishment of the lease relationship should be given its effectiveness against the mortgage.