On the Removal of Leasehold on Mortgage in Compulsory Auction
- 法学院－已发表论文 
后于抵押权设立的租赁权,在其继续存在对抵押权的实现有影响时,方可被法院除去。租赁权是否后于抵押权设立,目前暂宜以承租人占有抵押物的时点来判断;租赁权是否会影响抵押权的实现,宜根据抵押物第一次拍卖的结果来判断。对租赁权应否被除去的问题,宜在执行程序中由执行法院判断及处理。法院除去租赁权的裁定具有相对效力,对抵押权人而言租赁权消灭,对于抵押人和承租人而言租赁合同依然有效,承租人仍享有优先购买权。对于除去租赁权的裁定或驳回除去申请的裁定,承租人或抵押权人应有权另行提起诉讼。With regards to leasehold prescribed after the establishment of mortgage,only if the continuing existence of such right has an impact on the realization of mortgage,the court may remove the right. The sequence of rights is appropriate to be judged by the time when lessee gets possession of the property mortgaged. The influence of leasehold on mortgage to be realized is appropriate to be judged by the result of first auction of the property mortgaged. Whether leasehold shall be removed or not is better to be considered and decided by executing court.The decision held by court on the removal of leasehold has relative effect. In terms of mortgagee,the leasehold is removed,while the lease contract remains valid as for mortgagor and lessee,and the latter is still entitled to have a priority in purchase. No matter the court decides to remove the leasehold or not,lessee or mortgagor shall be granted the right to bring another claim regarding the decision.