Theory And Practice For The Contract-Control Of Rental Housing

By surveying the historical evolution of freedom of contract and control of contract,it indicates that the rising of contract-control has been accompanied along with the decline of contract-freedom.Contract-control originally manifests as the restriction of form and content of contract in contract law.As to the form of contracting,the limitation to the contract-freedom has begun with the format contract and the contracting formalism.As to the content of contracting,the limitation of contract-freedom incarnates the establishment of series signficant pricinples such as the compulsory contracting system,the fidelity principle,the changed circumstances principle,the objective explanation principle and the emphasis on the social factors in the contract.From the perspective of legal practice,many countries including China have shared the developing process in which the contract-control appeares in the monoplized industries,and then expands to the fields of labor law and the law on consumers protection.It is very essential to explore the theoretical fulcrum as the whole basis of contract-control because as a method of regulation rooted in the public law,contract-control has been applied into the area of private law.The theories borrowed from other subjects have offered fundamental theoretical supports,for example,the theory of state intervention in economics,legal patemalism and formal-and-substantia justice in jurisprudence,in the developing process of contract-control,the urbanization which intensified the conflict between the housing supply and housing demand provided the social and economic backdrop for the rising of the contract-control of housing rental in the developed countries.After World WarⅡ,the intensification of the conflict in housing rental motived the government in the developed countries to take measures in controlling housing rental.The socialization in the notions of ownership and rent was the theorectical source in promoting contract-control in housing rental.The specific institutions in the contract-control of housing rental in foreign countries can be catergorized into two groups:the control in private law which bases on civil laws and the control in the public law which reflects the state’s idea of regulation,The private law group includes that the principle of no break of lease with bargain,the right of preemption,the limitation of terminating contract,the rent-regulation,the system of house tenancy register and so on,The other group includes the rent regulation,the regulation of habitability,the regulation of teminating contract,regulation of security deposits.Two groups of controlling methods show differences in measures and effects,therefore it’s necessary to learn from each other.Comparative study indicates that the contract rules dominated the rental housing system in the countries with the civil law tradition.Being influenced deeply by the ideas of equality,freedom of contract,the regulating regime within which private rules overwhelms has finally formed;on the contracy,the housing rental system in the countries with common law tradition has styled the regulating rules in that the notions of tenant-dominance and the doctrine of welfare state in the theory of society standard have impacted upon the system.The practice of the housing rental in civil law countries has been barely satisfactory on account of the imprisonment of the traditional civil law theory and the force-lacking of optional laws.Therefore,it is necessary to integrate the factor of "control" in the legal system of rental housing in common law countries into the "control",In the meantime,the transform of the legal valuation from individual-based orientation of law to social-based orientation of law in both civil law system and common law system,which caused by the globle economic integration,provides the possibility for the combination and reconciliation between"contracting"and "controlling"in their housing rental systems.On the base of principles of freedom,justice,social order and efficiency,the theoretical structures of general contract-control of housing rental should be built on the series important legal principle which includes but not limites citizens’ right to housing protection,social orientation and benefits equilibrium theory,the valuation of fitting to the living,and the tenant protection.By examining the Chinese modern legal control system of housing rental which,has been borrowing the characteristics of contract law of housing rental from civil law trandition,it indicates that these characteristics form the foundation of Chinese current housing rental legal system,despite that some imperfections still exist;moreover,the demand of social-economic effect which the legal system of housing rental leads to,the requirements of national administrative function,and the legal and physical barriers for implementation of regulation of housing rental in China ask for establishment of contract-control in housing rental syetem.According to the theories of contract-control of housing rental,the Chinese housing rental legal system may break through the limitations of the traditional principles and concepts in civil law system,such as the freedom of contract,the modern absolute ownership,the equality for the rights and duties in contract,the relativity principle of debts,and herence construct a new system contract-control of housing rental.In the theory,Chinese contract-control system of housing rental should establish the series institutions which includes not all but at least the regulation of habitability,the rent regulation,the regulation of terminating contract,the regulation of security deposits,the records of house tenancy register,the group-oriented leasing regulation.With the purpose of protection of tenant,all the institutions mentioned above would feature the combination and reconciliation between private law and public law.