摘要： 实践中的以房抵债协议具有相当的复杂性,特别是在债务人进入破产程序后,以房抵债协议的处理面临诸多困境。履行期届满前达成的以房抵债协议,以最为典型的买卖型担保协议为例,如已完成物权变动公示,则构成让与担保,债权人在破产程序中可主张别除权;如未完成物权变动公示,则应推定当事人之间并无设立担保的合意,以物抵债协议仅是在原协议的基础上增加了一种履行方式,以督促债务人履行协议义务,债权人在破产程序中享有的仍是普通债权。履行期届满后达成的以房抵债协议属诺成合同,在当事人未明确约定旧债消灭的情况下构成新债清偿。破产程序中,管理人可选择依据新债或旧债确定债权金额。预告登记应仅在办理本登记的条件已具备的情况下具有破产保护效力,网签备案作为行政管理手段不具有破产保护效力。已履行完毕的以房抵债协议在破产程序中仍应接受破产撤销权及无效行为条款的检视。

关键词: 以房抵债, 让与担保, 新债清偿, 预告登记, 破产撤销权

Abstract: The agreement of expiation of debts with housing properties is quite complicated in practice.There are many problems with the treatment of the agreement of expiation of debts with housing properties, especially in the case that the debtor enters into bankruptcy proceedings.The agreement of expiation of debts with housing properties reached before the debt is due constitutes an alienation guarantee if the change of property rights has been publicized.Thus, the creditor may claim the exemption right in the bankruptcy proceeding.Instead, if the change has not been publicized, then the agreement of expiation of debts with housing properties only provides a method to perform the original contract to urge the debtor's performance because it should be presumed that there is no consensus ad idem between the parties about the establishment of guarantee.As a result, the creditor is merely the ordinary creditor in the bankruptcy.The agreement of expiation of debts with housing properties reached after the debt is due is the consensual agreement, which constitutes the new debt settlement if the parties do not expressly agree that the original debt will be extinguished.In bankruptcy proceedings, the trustee may determine the amount of the debt based on the original or new debt.The advance-notice registration shall have the effect of bankruptcy protection only when the conditions for the formal registration have been met.The online filing does not have the effect of bankruptcy protection as a result of its administrative nature.The completed agreement of expiation of debts with housing properties is subject to the review of the avoiding power and the terms of the void act in bankruptcy proceedings.

Key words: Expiation of Debts with Housing Properties, Alienation Guarantee, New Debt Settlement, Advance-notice Registration, Avoiding Power