論抵押財產出租時抵押權與租賃權的關係－－對「物權法」第190條第2句的理解

Relationship Between Hypotheca and Lease After the Object Subject to the Hypotheca is Leased: Interpretation of the Sec. 2 of Art. 190 of China Property Law

抵押人抵押財產後，又之出租的，租任關係不得對抗已登記的抵押權。如果租賃權影響了抵押權的實現，則應當除去租任賃權；如果租賃權的存續並不影響抵押權人的利益，則租賃權可以繼續存在，並對抵押財產之受讓人產生拘束力，即依然適用買賣不破租賃的規則。承租人因租賃權消滅而遭受的損失，應自行承擔。但是，承租人有權向多收租賃費的出租人行使不當得利返還請求權。After the object subject to the hypotheca is leased, the hypotheca and the right of lease have been imzosed on the same object at the same time. During the enforcement of hypotheca, the hypotheca creditor does not need to terminate the lease contract. The Sec. 2 of Art. 190 of China Property Law has revised the Art. 66 of Judicial Interpretation of the Supreme People's Court on Some Issues Regarding the Application of China Guarantee Law. The Sec. 2 of Art. 190 of China Property Law stipulates that the contract of lease shall be affected by the registered hypotheca during the enforcement of hypotheca. It means that when a hypotheca creditor's enforcement is affected by the contract of lease, the hypotheca creditor or court may terminate such lease relationships and thereafter auction the property. If the hypotheca creditor's enforcement is not affected by the lease relationships, the lease contract shall be applied to the transferee. The leasee shall bear the loss of the lease's termination.