Study On Protection Of Commercial Housing Consumers' Rights

In recent years, along with the economic development of China's real estate and the deepening reform of housing system, the status of housing which is a special commodity is becoming increasingly important in the civic life and the rights of housing consumers in the marketed-economy is becoming increasingly being emphasized. In the process of housing transaction, it is the particular object and the complex and professional transaction that make housing consumers be in a vulnerable position clearly. The degree and policy of protection to vulnerable groups is closely linked with social development. In the contemporary of building a harmonious society and paying attention to the people-oriented, the rights of housing consumers relating to the survival should be given prior protection. Therefore, the state has enacted a series of laws and regulations designed to regulate housing market and hence to protect housing consumers. However, it is regrettable that the reality of the protection falls short of goals which are legislative, judicial and executive. Operators tend to use all means to seize the best interest, such as speculation, fraud and false advertisement, which have not only seriously damaged the rights of consumers, but also triggered a crisis of confidence and hindered the healthy development in the housing market. Therefore, it is of great significance to protect the rights of housing consumers. While making it clear about the definition and scope of the rights of housing consumers and in view of the weak status of those consumers and the present situation of the academic and the legislation area, this thesis attempts to elaborate the protection of the consumers'rights in all stages of housing transaction and proposes some suggestions regarding the improvement of the protection of consumers'rights.This thesis is divided into four parts.The first part says the general investigation on the rights of commercial housing consumers. The author expounds the scope of the consumer in the housing market and the contents of the consumers'rights, laying the foundation for the following research. The author defines housing consumers from three aspects: for the purpose of life, not profit and dealing with operators, which in fact rules out the possibility of speculative buyers and general civil entities of the used housing transaction. On the basis of enjoying consumers'rights, housing consumers have their own content and features as the right to safety, the right to know, the right to fair trade and the right to damage claims. At the same time, the author summarizes the defects of legislative protection of housing consumers and the deficiencies in the rights and promulgates the necessity of the research in this thesis.The second part says the protection of the consumers in the process of contracting. Because of the special nature of housing transactions, the information asymmetry is deepened between consumers and operators, which makes it difficult to protect the right to know. Therefore, in order to truly achieve the right to know of housing consumers, we should be clearly aware of the content, protect the right to inquire information, strengthen supervision on the housing market, and improve market access system. In view of the widespread use of the fixed articles in housing transaction which causes the consumers to suffer more and more, the author points out we must restrict the rules and regulations from the content of the fixed articles, the operator's obligation to draw attention as well as the interpretation of provisions in order to ensure the fair realization of contact. With consumers judging the value of commercial housing from advertising increasingly, advertisement plays an increasingly important role in the sale of commercial housing in the process of contracting. The author believes that under the premise of supervising the advertisement, we should distinguish the nature between the housing offer and an invitation to make offers, in order to establish the liability of parties fault, the liability of breaching contract and the liability of punitive Compensation.The third part says the protection of the consumers in the delivery. One of the most important obligations of operators is the delivery, which includes delivering the housing of qualified quality standards, transferring the flawless ownership and according to the agreed time and area. In this part, the author discusses how to ensure that operators perform in accordance with the agreed delivery obligations, in order to protect housing consumers beforehand rather than relief afterwards. In the housing quality, we should strengthen the supervision in the construction process and the completion of testing and introduce the insurable and assurable system of residential quality, which not only makes the purchase be timely relieved in the problem of housing quality, but also shifts the risk of the real estate developers. The transfer of housing does not show that the acquisition of real estate property, and operators should ensure that consumers can get the certificate of ownership which is complete, flawless, not recoverable. To ensure that consumers obtain the ownership, the author believes that we should further improve the pre-registration system, assure true disclosure of the information of ownership and solve the conflict between the right of expecting the ownership and the right of prior compensation. In addition, the identification of the housing area and the judgment of the time of delivery are playing an important role in the course of performance.The fourth part says the relief of consumers'rights when the operator violated contract. Mandatory performance, reliving contract and punitive damages are three common obligation modes which apply to operator's breach in the deal of housing and the writer sets forth them separately, hoping to realize the relief of consumer rights in the situation that the operator violates contract. It should be noted that in the mandatory performance there are not such cases: the object of the contract is unable to be performed or not applicable to mandatory performance. Reliving contract means that when the purpose of the contract can not be fulfilled, consumers can protect their rights by exercising the right of reliving contract. The author sums up several situations that consumers could exercise the right of reliving contract according to our laws and judicial interpretations, and suggests that conditions under which the housing contract could be cancelled should be summarized to adapt to the development of housing market. The application of punitive damages system in the housing transactions has been acknowledged by the legal practice, and been reflected in relevant judicial interpretations. But there are still lots of immaturity that needs to be improved urgently. Firstly, the author identifies the fraud in the deal of housing, then clears the scope of applying the punitive damages, and discusses on the cardinal number, relevant factors as well as multiple of defining the amount of compensation in order to further improve the application of punitive damages in the housing market and safeguard the rights of consumers.