商品房预售信贷关系中消费者抗辩权延伸制度研究——以后疫情时代强制停贷事件为切入

Research on the Extension System of Consumer’s Right of Defense in the Pre-Sale Credit Relationship of Commercial Housing—The Mandatory Loan Suspension Event in the Post-Epidemic Era Is the Entry Point

摘要: 实践中预售房的不确定性导致商品房买卖纠纷不断增加，许多新的矛盾与问题也在司法实践中显露，其中一个重要问题是购房人可否在贷款合同中延伸适用抗辩权。原生抗辩权来源于买卖合同，且贷款合同与买卖合同必然构成经济上的整体，即关联合同；排除适用的情形包括消费者未请求出卖人履行合同义务及信贷合同成立后买卖合同条款实质性变更。这一制度在域外部分国家已立法实践，如德国的“抗辩直索”制度，取得了良好的司法效果。抗辩权延伸制度突出了抗辩权的可转移性特征，虽然对合同相对性原则有所突破，但降低了消费者可能承担的因买卖合同与贷款合同分离所造成的更高风险，为我国较为单一的信贷消费者权益保护模式提供新的指引。

Abstract: In practice, the uncertainty of presale housing leads to the increasing disputes of commercial housing sales, and many new contradictions and problems are also revealed in judicial practice. One of the important issues is whether the buyer can extend the application of the right of defense in the loan contract. The original defense right comes from the sales contract, and the loan contract and the sales contract must constitute an economic whole, that is, the related contract; exclusions include consumers’ failure to request sellers to fulfill their contractual obligations and substantial changes in the terms of the sales contract after the establishment of the credit contract. This system has been legislative practice in some countries outside the region, such as Germany’s “direct defense” system, and has achieved good judicial results. The extension system of the right of defense highlights the transferability of the right of defense. Although it has a breakthrough in the principle of contract relativity, it reduces the higher risk that consumers may bear due to the separation of sales contract and loan contract, and provides new guidance for China’s relatively single credit consumer protection model.