In the case of lawsuit of enforcement opposition between Hu X as the plaintiff
and Wang X, Wang XX, Zheng X as the defendants, Shenyang Metal Materials
General Factory, Zhou X, Shenyang Jiadian Logistics Co., Ltd., Qu X as the third
parties36, Hu X as the secondary lessee raised an opposition for enforcement on
the grounds that the Court’s auction was illegal without his consent and removal
of the lease in advance, and claimed that he had a legal and valid lease on the real
estate and refused to perform the enforcement duty of vacating the house requested
by the Court. The Court held that the real estate had been mortgaged before the
lease, and the auction of real estate with the mortgagee’s consent was a specific
way for the mortgagee to exercise the right of mortgage to realize the repayment
of the debt. The proceeds of the auction had priority in paying off the mortgagee’s
claim, and the lease right did not adversely affected the realization of the prior
mortgage, and should not accord with the articles about the lease right provided in
the Provisions of the Supreme People Court on Auction and Sale of Properties in
Civil Enforcement Proceeding by People’s Courts, “continuous existence in the to
be-auctioned property may affect the realization of the prior real right for security
and other priorities of getting repaid, the people’s court may eliminate them prior
to the auction”, so the auction did not need to obtain the consent of the secondary
lessee and remove the right of lease in advance. The Court held that the auction
was justified and rejected Hu X’s claim.