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在商品房预售之前,开发商为了获取更多流动资金,会将建设用地使用权或是在建工程抵押出去。预购时房屋尚未建成,预购人还不能享有对该商品房的所有权,但是获得了对该预售商品房的债权;大多数预购人为了获得购房的按揭贷款,会将房屋再次抵押出去。多人抵押同一标的物或是对同一标的物的多次抵押便可能造成各个抵押权之间的冲突。房屋竣工后,如果开发商无法支付相应承包款,承包人可以依法申请工程折价或者拍卖,并对其所承担的建设工程价款享有优先受偿的权利。此时又可能产生另外两类冲突。其一,是承包人优先受偿权与抵押权人享有的约定抵押权之间产生的冲突。其二,是承包人优先受偿权与预购人对房屋享有的债权之间产生的冲突。本文将分析上述几类权益冲突的成因,并致力于探讨这些权益出现冲突时开发商、抵押权人、预购人和承包人这四方主体的利益排序。
In the pre-sale of commercial housing, developers in order to obtain more liquidity, will be the construction of land use right or mortgage under construction mortgage. The pre-purchase house has not yet been completed, the pre-purchaser still can not enjoy the ownership of the real estate, but obtained the pre-sale of real estate claims; most of the pre-order buyers in order to obtain a mortgage loan mortgage, the house will be mortgaged again. Multiple mortgages of the same subject matter or multiple mortgages on the same subject matter may result in conflicts between the various mortgage rights. After the completion of the house, if the developer can not pay the corresponding contract, the contractor may apply for a project discount or auction in accordance with the law and enjoy the right to compensation for the price of the construction project undertaken by the contractor. There are two other types of conflicts that may arise at this time. First, there is a conflict between the priority right of the contractor and the agreed mortgage enjoyed by the mortgagee. Second, it is the clash between the priority right of the contractor and the pre-bidder’s claim on the house. This article will analyze the causes of these types of conflicts of interest and endeavor to explore the interests of developers, mortgagees, pre-purchasers and contractors in the conflict of these rights and interests.