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“以房抵债”安排,原常见于缓解开发商在开发过程中少量资金短缺的问题,但部分房地产企业逐渐将其演化作为平衡资金需求的工具,签订大量的“以房抵债”协议,在出现现金流危机、甚至濒临破产的情况下,无力偿还欠款,也无力建完房屋交付债权人,使得“以房抵债”的实现问题变得愈加尖锐。而在理论和实践中,“以房抵债”也存在较多的争议,即便表面上均具备相似的特征,由于个案事实细微的差别,或是裁判观点不同,导致不同的判决结果。故此,本文拟就“以房抵债”在破产程序中可能面临的不同效果进行梳理及探讨。

一、关于“以房抵债”的法律关系的厘清

实践中关于“以房抵债”存在着各种各样的约定,归纳起来,最为常见的为“以物抵债”类型的安排:通常发生在债务到期后(部分案件中可能发生在债务到期前),即以债务人或他人持有的房屋作为抵偿债务的“物”,通过折价转让给债权人的形式,实现债务清偿的目的。该种抵偿改变了原债权金钱给付的方式,在理论上,可称为“他种给付型以房抵债”。

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