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房屋按揭中的回购又称为无力还贷型回购,从条款设立的目的以及回购人履行义务所表现出来的效果来看,将其定性为保证担保行为而不是买卖行为更有利于回购关系中各方利益的平衡,但前提条件是保证人能够行使代位权。在债务人提供担保物的情况下,签订不可撤销回购条款的后果相当于保证人放弃先诉抗辩权。保证人的权益可以通过代位权的行使,在程序上以变更抵押登记或者直接实现抵押权的方式得到相应保障。
The repurchase in the mortgage of housing is also known as the repayments of insolvent repayments. From the perspective of the purpose of the clause and the performance of the repurchase, it is better to characterize the repo as a guaranty of guaranty rather than buying and selling The balance of interests of the parties in the purchase relationship, provided that the guarantor is able to exercise subrogation rights. In the case of debtors offering collateral, the effect of signing an irrevocable buy-back clause amounts to the guarantor waive the right of defense of the petition. The rights and interests of the guarantor may be protected by the exercise of the subrogation right in the procedure of changing the registration of the mortgage or directly realizing the mortgage right.