Research On The Legal Problems Of The Precontract For Commercial Housing

With the development of market economy, precontract has risen stealthily. Especially in such fields as the sale of commercial housing. Due to the obstacles of laws and in fact, developers often require or force buyers to sign subscribe book in the form of the subscription books, letter of intent or ordering books for fixed trading opportunities. Precontract is a contract which is an agreement in order to make another agreement later between two parties. That said, to prepare for signing the presale contract and clear concerned matters, party A and B have reached an agreement through friendly consultation to conclude the following contract before signing presale contract. It is widely used in practice, although it is not stipulated in Chinas contract Law. For a long time, our country hasn't truly value Precontract system. Precontract system has not gotten as much intension attention as it should. Legislative level has not be properly reflected in the legislation, and academic circles discussed clear about it insufficiently either. Dispute about the nature of precontract, contents and whether the controversial appointment around the law has continued.But in practice, especially in real estate transactions, subscribe book is a form of commodity house reservation. Commodity house subscribe book is the documentation subscribed by the parties of commercial house business when they sign trade contract or precontract; it validates the matters of house business. The purpose of signing subscribe book is to sign formal business contract in the future. It belongs to precontract in nature. To Constraint on both sides to sign formal contracts of sale, the subscription has already contains the sale main clauses of the contract. But because of the soaring prices and driven, the dispute about developers back, tear subscribe book and refused to sign with subscribe formal contract or subscriber violates subscribe book and refuses to subscribe sales contract and so on, happen often. The court has trial majority of these cases. But because of lacking of contract specification and the unified deposit return and subscribe book nature, it caused the disunity of referee in judicial practice. And the key of solving the dispute about commodity house subscribe book is to build perfect our reservation system. Because the housing subscribe book is a typical trade in specific forms of an appointment contract in building business. If the appointment system has no legislation all the time, the book of the law regulation house subscribe is necessarily passive water, the wood without this. Therefore, the system of the appointment of a commercial housing sales contract is not mature in our practical skills. No matter in theory and in judicial practice, these problems are urgently necessary to probe into.The structure of the thesis is arranged as follows: Preface primarily introduces the subject background and theoretical basis for the purpose of the study and significance. Not including preface, the article is divided into five parts. It discloses the legal structure of the regime in detail, and constitutes the nuclear of this essay. More specifically, the first part analyzes the basic theory of precontract for commercial housing. It is expounded the concept, nature, the cortical basis and its classification of the precontract. In order to make the concept of precontract clear, it correctly differentiates the concept of precontract and pre-sale contracts. But in the social practice, it is often difficult to properly classify them correctly, some even equate the two. It has the vital significance to be clear the concept of precontract and pre-sale contracts. The second part discusses about problems existing in practice of precontract for commercial housing according to our present legislation situation and the typical case. Existing, there are concretely dispute about the contract effectiveness of"precontract" and "presale contract". The nature of that subscribe book and the problems of deposit return and so on. It canalizes tort countermeasures of subscriber by contract dispute case. The third part mainly discusses about the necessity of legislation adjustment for precontract. it is imperative in the legislation adjustment on precontract by the increasing status quo of precontract for commercial housing dispute. To be specific, it is conducive to quell dispute about the precontract for commercial housing, whether to circumvent the law. It is conducive to determine the effectiveness of the precontract for commercial housing; It is helpful for definite the imputation principle and liability ways of precontract for commercial housing. Through the effective regulation of appointment law, it is more advantageous to prevent the risk of precontract for commercial housing; it is helpful for contributed to this agreement and stable trading. The fourth part mainly introduces the legislation about pre- contract abroad with the status quo and compared to the current legislation and practice in China to offer reference for improving our legislation. The final part proposes suggestions on the legislation of precontract for commercial housing : The final part of the appointment of China commodity house legislation proposed contract set suggestion: I suggest it can set an pre- contract system in general obligations or contract general ; I suggest perfecting the legal standard appointment of house in China.In short, while based on introducing the theory of precontract, combined with the case, this article research on legal issues relevant to the sale of commercial housing contract, trying to clear the concept, content, effectiveness and responsibility of the pre- contract. This article suggests that the legislation in precontract , I hope it can clear the rights and obligations of both sides for the sale of commercial housing , it can make commodity market more legal normalized, also I hope that it will be provide some help for our commercial trial practice.