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商品房抵押权预告登记体现于《物权法》第20条,法律赋予这种预告登记的行为具有物权效力,即对后来发生的与该请求权内容相同的不动产物权的处分行为,具有对抗性。商品房抵押权预告登记具有公示、保全、顺位等效力,但由于抵押权的预告登记仍区别于正式登记,其需要在能够进行不动产登记之日起三个月内申请登记,故在具体的司法实践中,对商品房抵押权预告登记后是否享有优先受偿权存在众多截然相反的判决。单从杭州地区看,有法院支持有抵押权预告登记的债权优先受偿,也有法院不支持,甚至在同一法院中,此类判决也大相庭径,这势必造成法律适用的混乱及民众对此的不理解。本文对商品房抵押权预告登记的效力及各地法院的判决进行简要分析,并结合笔者在实践中遇到的真实案例,对该问题进行探讨。笔者认为应对未在三个月内进行正式抵押登记的情况区别对待,如是承受预告登记义务人的原因造成无法进行正式抵押登记的,预告登记的权利人可就该房屋享有优先受偿权。
Property mortgage pre-registration is reflected in the “Property Law” Article 20, the law gives notice of such advance registration with the effect of property rights, that is, the content of the right to subsequent claims with the same real estate property sanctions, confrontational. However, since the pre-registration of the mortgage right is still different from the formal registration, it needs to apply for registration within three months from the date of the real-estate registration. Therefore, in the specific judicial In practice, there are many diametrically opposite judgments on whether pre-registration of a mortgage of real estate is entitled to a priority claim. From the perspective of Hangzhou alone, some courts supported the pre-registration of claims with mortgage rights to give priority to compensation, and some courts did not support them. Even in the same court, these kinds of judgments are quite different from each other, which will inevitably lead to the confusion of the law and the general public’s concern Do not understand. This article briefly analyzes the effect of registration of pre-registration of commercial housing mortgage and the judgments of various courts, and discusses the issue in light of the real cases that the author encounters in practice. The author believes that should not be formally registered in the mortgage within three months to distinguish the situation, in case of pre-registration obligation to bear the cause of the reasons can not be formal mortgage registration, registration of the advance notice of the right to compensation for the housing.