债权债务关系的利益权衡

——建设工程合同中“以房抵款”协议的实务探究

【摘要】近年来，受疫情和房地产行业调控等多方因素影响，不少房地产公司出现资金问题而影响工程款支付。在此情况下，开发商选择以房屋作为工程款抵给建筑公司以消灭债务屡见不鲜。而由于建筑企业资金问题和抵债涉及多方主体，学界各种理论众说纷纭，实务当中的认定和裁量也存在诸多区别，因此，探寻以房抵款协议的适用规则,做好建设工程施工合同中各方当事人的利益权衡,兼顾建筑市场可持续发展成了当前亟需解决的一大突出问题。针对以上情况，本文从当前以房抵款协议的焦点问题入手，探讨了学界对以房抵款协议相关法律问题研究具有代表性的观点，并结合立法、司法及协议各方当事人的视角，梳理各种以房抵款纠纷内在的裁判逻辑。

【关键词】以物抵债  以房抵款  建设工程   清偿  担保

一、以房抵款协议的定义

所谓“以房抵款”协议，主要是指开发商和施工方合意，若开发商不履行到期债务，开发商将房屋以一定价格抵偿需支付的工程款的约定。此种约定虽未双方合意，事实上往往是开发商为了缓解资金压力，而凭借其强势地位选择“以房抵款”方式作为工程款结算方式。而施工方作为相对弱势一方，无奈考虑到资金回笼问题，也会予以妥协，以确保企业稳定持续发展。

二、以房抵款协议的效力认定

关于以房抵款协议效力的问题，根据“履行期限届满与否”作分类讨论。两者的关键在于作出以房抵款约定之时的房屋价值及抵顶工程款数额的情况。具体而言，针对履行期限届满后所签订的以房抵款协议，其抵款房屋的价值和还是工程款的数额都是相对确定的。而在履行期届满前就约定以房抵款，此时施工方工程仍在进行，所抵款项数额无法确定，房屋也可能由于没有现实建成而存在履行不能的风险，此外，就房地产市场而言，抵款房屋价值存在较大变数，时间的推移对价格的影响无法预估，如若直接认肯定清偿期届满前物抵债协议的效力，可能会导致双方利益显著失衡。

（一）履行期限届满后的以房抵款协议效力

针对履行期限届满后尚未支付工程价款情形下的以房抵工程款约定，如能排除主观恶意及损害第三人利益等导致合同无效的情形，一般可肯定以房抵款协议的效力。如果发包方未交付房屋，可按照约定要求对方履行以物抵债的约定，通过折价、拍卖、变卖房屋以抵偿工程款，但此时不能直接主张对抵债房屋享有所有权；如果抵债房屋已经交付，则可以凭借以物抵债协议直接享有抵债房屋的所有权。另外，若房屋价值不足以抵偿工程款，则仍享有要求对方支付剩余部分工程款的权利。此种现象学界也称之为代物清偿说，系合意清偿的产物，其结果是合同的一种替代履行。

（二）履行期限届满前的以房抵款协议效力

在履行期限届满前所达成的以物抵债协议，理论界存在三种不同观点：一种观点认为，在《物权法》承继《担保法》相关规定精神下，基于禁止流质或流押的考虑，直否定了其效力。另一种观点认为应当允许当事人签订以物抵债协议，但其性质认定为让与担保，并参照其规定确定以房抵款协议的效力。还有一种观点认为，当事人在履行期限届满前签订以物抵债，其在性质上将其定为让与担保，提前签订意味着债务人放弃了期限利益，提前进行了清偿，此种观点拟制色彩过于浓厚，不符合当事人内心真意，所以一般不被采纳。

实务当中关于以房抵款的效力也存在分歧：第一种观点认为以房抵债的协议是无效的，根据（2018）最高法民申6153号南京澳林地产、宿迁澳林置业建设工程施工合同纠纷案再审中，最高法院认为《九民纪要》第四十四条适用对象为债务履行期限届满后达成的以物抵债协议，而第四十五条也并未对协议的效力作出规定，因此主张以房抵款协议有效于法无据。

另一种观点即流押契约说，将此类协议的性质理解为对工程款的一种担保，该学说认为依法抵款协议并非直接无效，而是认为以房抵款协议符合流押条款关于转移所有权的预先约定的情形，结合民法典第401条规定，流押条款并非直接归于无效，而是可就抵押财产优先受偿，即流押条款转化为清算型担保，即施工方可根据以房抵款协议申请对房屋拍卖、变卖价款的优先受偿。

笔者认为，根据最高人民法院出台《关于当前形势下审理民商事合同纠纷案件若干问题的指导意见》的裁判精神，法院通常不轻易否定合同的效力。所以既不能片面的地否定认为债务清偿期届满前所形成的以房抵款协议，也不能单纯的肯定认为在债务清偿期届满前形成的以房抵款协议，应当结合具体情况对每个个案进行具体分析。

三、债务已届清偿期后达成的以房抵款协议的性质认定

以房抵款协议性质决定了在抵债房屋尚未交付或者尚未变更登记的情况下，该协议是否成立及生效问题。

《民事审判指导与参考·指导性案例》刊登的《债务清偿期届满后当事人间达成以物抵债协议但未履行物权转移手续，该协议效力如何确定》一文认为即将以房抵款协议认定为实践性合同，当事人之间达成的以房抵款协议，在当事人实际履行物权转移手续后，才发生清偿的效力。

而最高法院2017年发布的公报案例《通州建总集团有限公司与内蒙古兴华房地产有限责任公司建设工程施工合同纠纷案》中则反之，它明确了以房抵款协议系诺成性合同，不以交付为要件，只要双方协商一致即生效。

笔者认为，一般而言，基于私法自治的原则，对于双方当事人在真实意思表示一致的情形下所达成的以房抵款协议，在不违反法律、行政法规的强制性规定的情况下，不应轻易否定协议的效力，更不能随意套用流担保条款以打击当事人的自主交易。《九民纪要》第44条、《中华人民共和国民法典》第215条也明确了以房抵款协议为诺成性契约，不以办理产权转移登记为要件的裁判规则，即当事人双方对债权数额予以结算、确认，由此达成以房抵款协议有效。至此，关于以物抵债诺成性与实践性之争告一段落。

四、未履行“以房抵款”协议的工程款请求权

新的“以房抵款”协议之达成是否意味旧的工程款请求权之消灭？未履行“以房抵款”协议后承包人能否继续主张工程款？

“无权说”认为抵款房屋已由债权人受领的，即使未办理过户手续，也应当认定其已经履行“以房抵款”协议，旧的工程款请求权归于消灭。（2020）最高法民终197号二审民事判决书中，最高法院认为各方并未明确约定必须将抵款房屋所有权转移至债务人或指定第三人名下才能发生折抵工程款的效果；因此即使所有权并未全部转移，但所有房屋已实际受债权人支配的情况下，应当认定为债务人已经实际履行抵款义务，债权人不能再对该部分工程款进行主张。

“有权说”认为债权人即使受领了抵款房屋，若无实际办理过户手续，债权人仍可就原合同主张工程款。（2020）最高法民申2381号再审裁定书载明：案件中诉争房屋并没有办理过户登记，即债权人的债权并未得到实际履行，因此，仍可以就工程款进行主张。

我国大陆地区现行法律对以物抵债的规定较为模糊。我国台湾地区的“民法典”有两个条文涉及到这一问题。从法学理论分析，我国台湾地区“民法典”第319条规定的代物清偿，指的是通过给付方式的替代，从而消灭债权人和债务人之间原权利义务关系，与上文之“无权说”相对应。第320条对应的则是新债清偿。新债清偿也称新债抵旧、间接清偿或旧债新偿，德国法上称之为“清偿之给付”，因清偿旧债务而负担新债务，在新债务得到实际履行而使旧债务之消灭之契约。根据该条规定，新债、旧债两个协议均属有效，即当新债得不到履行时，仍可就旧债务进行主张。故债务履行期届满后，当事人达成“以房抵款”协议，此时有可能构成新债清偿，与“有权说”相对应。

但是，上述最高法院判例中，对于达成“以房抵款”协议后开发商未全面履行，债权人是就原合同要求实际履行还是就商品房买卖合同主张违约责任，最高法院判定的标准为何？由此可以引出我国台湾地区民法理论中的“债之更改”概念，实务中，这两者极易混淆。

新债清偿，其本意在于按约履行，是指依照债之本旨实现债务内容的给付行为，法律效果为新债与旧债并存，若新债或者旧债之一被清偿，则两者同时消灭。系为是债权人和债务人之间的就增加一种可选的清偿方式达成的合意。而债的更改较之则为不同，债的更改一般需有当事人明确消灭旧债的合意，债权人只能就房屋买卖合同要求其实际履行。

综上可知，在债务履行期满后达成的“以房抵款”协议，既有可能为新债清偿，也有可能为债之更改，具体为何种性质，要根据当事人的意思表示而定。实务中两者应当如何判断区分？笔者认为可以从以下方面进行分析：

应当充分探寻双方当事人在订立合同时的意思表示。若当事人在“以房抵款”协议中明确约定将原债务归于消灭的，认定该“以房抵款”协议属于债之更改；反之，则属于新债清偿。当不能通过合同解释的方式探究合同双方当事人在订立合同时的内心真意时，基于对弱势方施工方利益的保护，应当做出最有利于施工方的解释，认定为属于新债清偿。此外，笔者认为，在实际履行中，新债应优先于旧债履行，只有新债不能履行，新债清偿协议目的不能实现，或者存在其他导致新债清偿协议无效、应予撤销的情形，才回到旧债的履行。若赋予债权人对于新、旧债的履行选择权，会使得债务人应履行的债务内容处于无法预期的状态，不符合交易的稳定性要求，不利于平衡债权人与债务人的利益。

五、以房抵款协议的风险防范

在实际适用过程中，笔者提出以下几点建议：

（一）工程款支付履行期届满后签订的协议争议不大，一般认为“以房抵款”协议有效。但是工程款支付履行期届满前签订的协议效力的认定争议较大，因此施工方应尽可能避免与开发商在承包合同中或者工程尚未完工时签订“以房抵款”协议。

（二）双方需要签订正规的《商品房买卖合同》，明确拟抵押房屋是否五证齐全，特别是预售许可证；其次相应的《抵款协议》、《施工合同》或《供应合同》等要约定清楚，及时签订，以明确工程款或材料款总额，已经支付的金额，抵房套数，房号、面积、单价、房款（是否含税费）等。

（三）施工方需要在日常生活中注意收集保留证据，包括物业费缴纳发票、宽带开通费发票等，以证明已经实际占用、居住。

（四）最后在与开发商合作之前，实际施工方应当委托律师对开发商的履责能力、信用等进行调查，同时在《抵款协议》签订前，应当对拟抵房进行调查，以确定该房屋上是否存在抵押权等权利负担，以及在协议中明确房屋不能过户时的风险承担，以及在签订时不要在协议中约定消灭原有债权债务关系。

（五）施工方应积极主张建设工程价款受偿权及受偿期限问题，避免陷入极为不利的情形。

结  语

当前房地产市场热度居高不下的形势下，涉房问题的处理需要更加谨慎。目前，无论是理论界还是实务界，大都对以房抵款模式均持认可态度。不过该种模式在实际运用过程中产生的问题依旧很多，究其原因，主要在于协议双方对此类协议的认识度不够，因而签约也较随意，双方并未约定此类协议签订的前提条件，也未对房产是否处于可售或可转让状态进行要求，因而出现了很多无效协议。对此，笔者认为，要解决"以房抵款"协议相关问题,最根本的方法是探寻双方当事人的内心真意,可以有效避免以房抵债协议可能存在的不公，平衡各方当事人的利益。

Balancing the interests of debt and debt relationships

——Practical Exploration on the Agreement of "Housing as Payment" in Construction Engineering Contracts

In recent years, due to various factors such as the epidemic and the regulation of the real estate industry, many real estate companies have encountered financial problems that have affected project payment. In this situation, it is not uncommon for developers to choose to use houses as construction funds to offset construction companies in order to eliminate debts. Due to the funding issues and debt repayment of construction enterprises involving multiple parties, there are various theoretical opinions in the academic community, and there are also many differences in recognition and discretion in practice. Therefore, exploring the applicable rules of housing mortgage agreements, balancing the interests of all parties involved in construction contracts, and balancing the sustainable development of the construction market have become a major outstanding issue that needs to be addressed urgently. In response to the above situation, this article starts with the current focus issues of housing mortgage agreements, explores the representative views of the academic community on the legal issues related to housing mortgage agreements, and combines the perspectives of legislation, justice, and the parties involved in the agreement to sort out the inherent judicial logic of various housing mortgage disputes.

【 Key words 】 Using property as collateral to offset debts and housing as collateral for construction project settlement

1、 Definition of Housing Payment Agreement

The so-called "housing for payment" agreement mainly refers to the agreement between the developer and the construction party that if the developer fails to fulfill the due debt, the developer will use the house at a certain price to offset the project payment that needs to be paid. Although this agreement was not mutually agreed upon, in fact, it is often the developer who, in order to alleviate financial pressure, relies on their strong position to choose the "housing as payment" method as the settlement method for project payments. As a relatively weak party, the construction party reluctantly considers the issue of fund withdrawal and will compromise to ensure the stable and sustainable development of the enterprise.

2、 Determination of the Validity of the Agreement for Housing Payment

Regarding the issue of the effectiveness of the mortgage agreement, it will be classified and discussed based on whether the performance period has expired or not. The key to both lies in the value of the house at the time of making the agreement to offset the house and the amount of the project payment. Specifically, for agreements signed after the expiration of the performance period, the value of the house to be offset and the amount of the project payment are relatively determined. Before the expiration of the performance period, it is agreed to offset the payment with a house. At this time, the construction party's project is still in progress, and the amount of the offset payment cannot be determined. The house may also face the risk of not being able to be fulfilled due to the lack of actual construction. In addition, in the real estate market, there are significant variables in the value of the offset house, and the impact of time on the price cannot be estimated. If the effectiveness of the debt offset agreement before the expiration of the repayment period is directly recognized, It may lead to a significant imbalance in the interests of both parties.

（1） The effectiveness of the housing payment agreement after the expiration of the performance period

In the case of an agreement to offset the project price with a house after the expiration of the performance period, if subjective malice and damage to the interests of third parties can be ruled out, resulting in the invalidity of the contract, the effectiveness of the agreement to offset the project price with a house can generally be affirmed. If the contracting party fails to deliver the house, they may require the other party to fulfill the agreement of offsetting the debt with property in accordance with the agreement, and offset the project payment by discounting, auctioning, or selling the house. However, at this time, they cannot directly claim ownership of the mortgaged house; If the mortgaged house has been delivered, the ownership of the mortgaged house can be directly enjoyed through the agreement to offset the debt with property. In addition, if the value of the house is insufficient to offset the project payment, the other party still has the right to demand payment of the remaining part of the project payment. This phenomenon, also known as the theory of vicarious satisfaction in academia, is a product of consensual satisfaction, resulting in a substitute performance of the contract.

（2） The validity of the housing payment agreement before the expiration of the performance period

There are three different views in the theoretical community on the agreement to offset debts with property reached before the expiration of the performance period: one view is that, under the spirit of the relevant provisions of the Property Law, the effectiveness of the agreement is directly denied based on the prohibition of liquid or liquid pledge, which inherits the spirit of the Security Law. Another view is that the parties should be allowed to sign a mortgage agreement, but its nature should be recognized as a transfer guarantee, and the effectiveness of the mortgage agreement should be determined based on its provisions. There is also a viewpoint that the parties sign a debt in rem before the expiration of the performance period, which in nature defines it as a transfer guarantee. Early signing means that the debtor has given up the interest of the term and paid off in advance. This viewpoint is too strong and does not conform to the true intentions of the parties, so it is generally not adopted.

There are also differences in practice regarding the effectiveness of using houses as collateral for debts: the first viewpoint holds that the agreement to use houses as collateral for debts is invalid. According to the retrial of the construction contract dispute case between Nanjing Aolin Real Estate and Suqian Aolin Real Estate (2018) No. 6153, The Supreme Court believes that Article 44 of the "Nine Minutes of the People's Republic of China" [Article 44 of the "Minutes of the National Civil and Commercial Trial Work Conference of the Supreme People's Court" Document No. 254 of 2019] applies to agreements reached after the expiration of the debt performance period, and Article 45 does not provide for the effectiveness of the agreement. Therefore, it advocates that the agreement on housing as collateral is valid and has no legal basis.

Another viewpoint, namely the theory of transfer of ownership contract, is that the nature of such agreements is understood as a guarantee for project payments. This theory believes that the legal mortgage agreement is not directly invalid, but rather that the transfer of ownership agreement in accordance with the provisions of the transfer of ownership clause in the mortgage agreement. In combination with Article 401 of the Civil Code, the transfer of ownership clause is not directly invalid, but can be prioritized for repayment of the mortgaged property, that is, the transfer of ownership clause into liquidation type guarantee, The construction party can apply for priority compensation for the auction and sale price of the house according to the agreement on housing offset.

The author believes that according to the spirit of the Supreme People's Court's Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes under the Current Situation [Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes under the Current Situation Document No. 40 of 2009], courts usually do not easily deny the validity of contracts. Therefore, it cannot be unilaterally denied that the agreement to offset the debt with a house formed before the expiration of the debt repayment period, nor can it be simply affirmed that the agreement to offset the debt with a house formed before the expiration of the debt repayment period should be analyzed specifically for each case based on the specific situation.

3、 Recognition of the nature of the mortgage agreement reached after the debt has reached its maturity

The nature of the mortgage agreement determines whether the agreement is established and effective when the mortgaged property has not yet been delivered or registered.

The article "How to determine the effectiveness of an agreement to offset debts with property after the expiration of the debt repayment period but without fulfilling the transfer of property rights procedures" published in the "Civil Trial Guidance and Reference - Guiding Cases" [Civil Trial Guidance and Reference - Guiding Cases, 2014 Issue 02] believes that the agreement to offset debts with property will soon be recognized as a practical contract, and the agreement to offset debts with property reached between the parties, The effectiveness of settlement only occurs after the parties have actually fulfilled the procedures for property transfer.

On the contrary, in the case of the construction contract dispute between Tongzhou Construction Group Co., Ltd. and Inner Mongolia Xinghua Real Estate Co., Ltd., which was released by the Supreme Court in 2017 [Supreme People's Court Gazette, Issue 9, 2017], it clearly stated that the housing mortgage agreement is a promissory contract and does not require delivery. As long as both parties reach a consensus, it will take effect.

The author believes that generally speaking, based on the principle of private law autonomy, for agreements reached between the two parties in the case of genuine agreement, the effectiveness of the agreement should not be easily negated, and flow guarantee clauses should not be arbitrarily applied to combat the parties' autonomous transactions, provided that they do not violate the mandatory provisions of laws and administrative regulations. Article 44 of the Nine Minutes of the People's Republic of China and Article 215 of the Civil Code of the People's Republic of China, as well as Article 215 of the Civil Code of the People's Republic of China. The Chinese Legal Publishing House, 2022 edition of the Civil Code of the People's Republic of China also clarifies the judgment rules that a mortgage agreement is a promissory contract and does not require the registration of property rights transfer, That is, both parties shall settle and confirm the amount of the debt, and thus reach an agreement to offset the debt with a house. At this point, the debate over the feasibility and practicality of using things to offset debts has come to an end.

4、 Failure to fulfill the project payment request right under the "housing as payment" agreement

Does the achievement of the new "housing for payment" agreement mean the extinction of the old right to claim project funds? Can the contractor continue to claim the project payment after failing to fulfill the agreement of "housing as payment"?

If the claim of 'no right to claim' is that the mortgaged property has been received by the creditor, even if the transfer procedures have not been completed, it should be deemed that it has fulfilled the 'house for payment' agreement, and the old right to claim project funds should be extinguished. In the second instance civil judgment No. 197 of the Supreme People's Court of China (2020), the Supreme Court held that the parties did not clearly agree that the ownership of the mortgaged property must be transferred to the debtor or a designated third party in order to have the effect of offsetting the project payment; Therefore, even if the ownership has not been fully transferred, but all the houses have actually been controlled by the creditor, it should be deemed that the debtor has actually fulfilled the debt obligation, and the creditor can no longer claim this part of the project payment.

The "right theory" holds that even if the creditor receives the mortgaged property, without actually handling the transfer procedures, the creditor can still claim the project payment based on the original contract. The retrial ruling of the Supreme People's Court No. 2381 (2020) states that the disputed property in the case has not been registered for transfer, meaning that the creditor's rights have not been actually fulfilled. Therefore, it is still possible to claim the project payment.

The current laws in mainland China have relatively vague provisions on the use of property as collateral for debts. There are two articles in the "Civil Code" of Taiwan, 2010 edition, which address this issue. From the perspective of legal theory, Article 319 of the "Civil Code" in Taiwan, China, stipulates that vicarious payment refers to the substitution of payment methods to eliminate the original rights and obligations between creditors and debtors, which corresponds to the "no right theory" mentioned earlier. Article 320 corresponds to the repayment of new debts. New debt repayment, also known as new debt offsetting, indirect repayment, or new repayment of old debt, German Law [German Civil Code, Peking University Press, 2017 edition]

Zhejiang Liqun Law Firm

Zhou Yanyang

It is referred to as the "payment of satisfaction" on 17855827390, which is a contract that assumes a new debt due to the satisfaction of an old debt, and extinguishes the old debt when the new debt is actually fulfilled. According to this provision, both new and old debt agreements are valid, meaning that when the new debt cannot be fulfilled, claims can still be made on the old debt. After the debt performance period expires, the parties reach an agreement to "offset the payment with a house", which may constitute a new debt repayment, corresponding to the "right to claim".

However, in the above-mentioned Supreme Court case, what are the criteria for the Supreme Court to determine whether the creditor claims breach of contract liability based on the actual performance required by the original contract or the commercial housing purchase and sale contract if the developer fails to fully perform after reaching the "house as collateral" agreement? This can lead to the concept of "modification of debt" in the civil law theory of Taiwan, which is easily confused in practice.

The original intention of new debt repayment is to fulfill according to the contract, which refers to the payment behavior of fulfilling the debt content according to the original intention of the debt. The legal effect is that the new debt coexists with the old debt. If the new debt or one of the old debts is repaid, both will be extinguished at the same time. It is a consensus reached between creditors and debtors to add an optional method of repayment. The modification of a debt is different from that of a debt. Generally, the modification of a debt requires the parties to have a clear agreement to eliminate the old debt, and the creditor can only demand actual performance from the house purchase and sale contract.

In summary, it can be seen that the "housing as payment" agreement reached after the expiration of the debt performance period may be used to settle the new debt or to modify the debt. The specific nature of the agreement depends on the expression of the parties involved. How should the two be distinguished in practice? The author believes that analysis can be conducted from the following aspects:

It is necessary to fully explore the intentions expressed by both parties when entering into a contract. If the parties explicitly agree to extinguish the original debt in the "housing for payment" agreement, it is deemed that the "housing for payment" agreement is a modification of the debt; On the contrary, it belongs to new debt repayment. When it is not possible to explore the true intentions of both parties when signing the contract through contract interpretation, based on the protection of the interests of the vulnerable construction party, the most favorable interpretation should be made for the construction party, and it should be recognized as a new debt repayment. In addition, the author believes that in actual performance, the new debt should have priority over the old debt. Only when the new debt cannot be fulfilled, the purpose of the new debt settlement agreement cannot be achieved, or there are other situations that render the new debt settlement agreement invalid and should be revoked, can the performance of the old debt be returned. If creditors are given the right to choose between new and old debts, it will leave the debt content that the debtor should fulfill in an unpredictable state, which does not meet the stability requirements of the transaction and is not conducive to balancing the interests of creditors and debtors.

5、 Risk prevention of mortgage agreements

In the practical application process, the author proposes the following suggestions:

（1） The agreement signed after the completion of the project payment performance period is not controversial, and it is generally considered that the "house payment" agreement is valid. However, the determination of the validity of the agreement signed before the expiration of the project payment performance period is highly controversial. Therefore, the construction party should try its best to avoid signing a "house payment" agreement with the developer in the contract or when the project is not yet completed.

（2） Both parties need to sign a formal "Commercial Housing Purchase and Sale Contract", specifying whether the five certificates of the proposed mortgaged property are complete, especially the pre-sale permit; Secondly, the corresponding "Payment Agreement", "Construction Contract" or "Supply Contract" should be clearly agreed upon and signed in a timely manner to clarify the total amount of engineering or material payments, the amount already paid, the number of housing units to be used, the room number, area, unit price, and the room price (including taxes and fees).

（3） The construction party needs to pay attention to collecting and retaining evidence in daily life, including property fee payment invoices, broadband opening fee invoices, etc., to prove that they have actually occupied and resided.

（4） Finally, before cooperating with the developer, the actual construction party should entrust a lawyer to investigate the developer's ability to fulfill responsibilities, credit, etc. At the same time, before the signing of the "Loan Agreement", an investigation should be conducted on the proposed property to determine whether there are mortgage rights and other rights burdens on the property, and to specify the risk bearing when the property cannot be transferred in the agreement, And do not agree to eliminate the original debt relationship in the agreement when signing.

（5） The construction party should actively advocate for the right to receive compensation for the construction project price and the issue of the compensation period to avoid falling into extremely unfavorable situations.

Conclusion

In the current situation of high real estate market heat, the handling of housing related issues needs to be more cautious. At present, both the theoretical and practical fields hold a recognized attitude towards the housing mortgage model. However, there are still many problems that arise in the practical application of this model. The main reason is that the parties to the agreement do not have sufficient understanding of such agreements, and therefore the signing is relatively arbitrary. Both parties have not agreed on the prerequisites for signing such agreements, nor have they made any requirements for whether the property is in a saleable or transferable state, resulting in many invalid agreements. In this regard, the author believes that the most fundamental way to solve the issues related to the "housing for debt" agreement is to explore the true intentions of both parties, which can effectively avoid the potential unfairness of the agreement and balance the interests of all parties.