I would like to ask my lawyer friend: the mortgaged property is now in a controversial state. Does the auction company have the right to auction?
Property belongs to property. According to the Property Law, real estate mortgage should be registered. The mortgage is established at the time of registration. Although you agree to mortgage the wages of migrant workers with real estate as the project price, the mortgage is not established at all because it is not registered. On the contrary, the credit union has registered the property as mortgage when lending, and the mortgage right is valid.
2, the project payment and wages of migrant workers have priority. Article 286 of the Contract Law stipulates: "If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period of time. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount the project or apply to the people's court for auction according to law, except that it is not appropriate to discount or auction the project according to the nature of the construction project. The construction project price takes precedence over the project discount or auction price. " Among them, "construction project price" includes project payment and wages of migrant workers. In addition, the interpretation of the High Court also stipulates that "the priority of the contractor of construction projects is superior to the creditor's rights such as mortgage".
Therefore, although credit cooperatives and auction companies can auction real estate, you can still claim to the court that the auction proceeds have priority over the mortgage of credit cooperatives.
Relevant laws and regulations:
Article 286 of the contract law
If the employer fails to pay the price as agreed, the contractor may urge the employer to pay the price within a reasonable period of time. If the employer fails to pay within the time limit, the contractor may agree with the employer to discount the project or apply to the people's court for auction according to law, except that it is not appropriate to discount or auction the project according to the nature of the construction project. Priority should be given to compensation for the discount or auction price of construction projects.
law of property
Article 187 Where the property specified in Items 1 to 3 of the first paragraph of Article 180 of this Law or the building under construction specified in Item 5 is mortgaged, the mortgage registration shall be handled. The mortgage is established at the time of registration.
Article 180 The following properties that the debtor or a third party has the right to dispose of may be mortgaged:
(a) buildings and other land attachments;
(2) The right to use construction land;
(3) The contracted management right of wasteland and other land obtained through bidding, auction and public consultation;
(4) Production equipment, raw materials, semi-finished products and products;
(5) Buildings, ships and aircraft under construction;
(6) means of transportation;
(seven) other property not prohibited by laws and administrative regulations.
The mortgagor may mortgage the property listed in the preceding paragraph together.
Article 199 Where the same property is mortgaged to more than two creditors, the price of auction or sale of the mortgaged property shall be paid off in accordance with the following provisions:
(1) If the mortgage has been registered, it shall be paid off in the order of registration; In the same order, it shall be paid off according to the proportion of creditor's rights;
(2) The registered mortgage is paid off before the unregistered mortgage;
(3) If the mortgage is not registered, it shall be paid in proportion to the creditor's rights.
Relevant judicial interpretations:
Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Price. The Supreme People's Court Judicial Committee adopted [2002] 16 at its1meeting in June 2002. Is hereby promulgated and shall come into force as of June 27, 2002. June 20, 2002
Shanghai Higher People's Court:
Your request for instructions on the understanding and application of article 286 of the contract law [2006 54 38+0] 14 has been received. After study, the reply is as follows:
A, the people's court in the trial of real estate disputes and handling enforcement cases, should be in accordance with the provisions of Article 286th of the "People's Republic of China (PRC) Contract Law", that the contractor's construction project priority is superior to the mortgage and other creditor's rights.
2. After the consumer pays all or most of the money for purchasing the commercial house, the contractor does not enjoy the priority right of compensation for the project price of the commercial house to the buyer.
3. The construction project price includes the personnel remuneration, materials and other actual expenses that the contractor should pay for the construction project, excluding the losses caused by the breach of contract by the Employer.
Four, the construction project contractor to exercise the right of first refusal for a period of six months, counting from the date of completion of the construction project or the date of signing the construction project contract.
Verb (abbreviation of verb) Articles 1 to 3 of this reply shall be implemented as of the date of promulgation, and Article 4 shall be implemented six months after the date of promulgation.