Legal Thinking On The Perfection Of The Chinese Commercial Housing Pre-sale System

As a form of commercial housing sale, the commercial housing pre-sale is a legal act by which the real estate enterprises pre-sale the house under construction and delivers to the buyers on a determined future day and the buyers prepays an amount of deposit or purchase price. The system of the commercial housing pre-sale has been established and developed under a serious shortage of supply of commercial housing and lack of construction funds, and now it becomes a principal way of commercial housing sale. In light of practice, the system of the commercial housing sale plays an important role in the development of real estate on accelerating capital turnover, incase efficiency in the use of funds and reduce development costs. However, since the 21st century, while China's real estate market beginning to take shape, the commercial housing pre-sale system exposed some weakness gradually, the commercial housing pre-sale system itself there are some flaws, imperfect laws and management issues, the positive effects of the initial implementation of the commercial housing pre-sale system gradually weakened, instead of many problems and disadvantages because too many interests tend to developers, the lack of effective monitoring mechanisms and improve the market environment. So as to the retention or abolition of the commercial housing pre-sale system caused the argument and research by all circles public, experts and scholars.Based on the research of the commercial housing pre-sale system theory and under the premise of the commercial housing pre-sale should be retained, combined with other countries and regions in the legislative reference, analyzed the legal relations and mutual interests conflict among the parties in the commercial housing pre-sale, summed up the inadequate protection of China's existing legal system on the commercial housing pre-sale parties, To be perfect the commercial housing pre-sale system from prevention in before and relief after this two aspects, with a view to be useful the healthy development of China's commercial housing pre-sale market. This paper is composed of four parts.The first part defined the conception and origination of the commercial housing pre-sale system. As a way of commercial housing sale, the commercial housing pre-sale system has its own characteristics. Analyzed and explained the legal nature of the commercial housing pre-sale, and be different from the processing contract and futures exchange. Recommended the relevant parties and the complex mutual legal relation among themselves in the commercial housing pre-sale.The second part compared the system of the Hong Kong, the United States and Germany and other countries and regions, by compare the stringent pre-sale license management with the more relaxed regulation approach and analyses each other, drawn from China's views.In the third part, started with the discuss of the retention or abolition of the commercial housing pre-sale system, explored the problems and reasons that existed in the system; compared the benefit with the disadvantages; introduced the existing legal system of the commercial housing pre-sale; and on this basis, analyzed the main problem that existed in the commercial housing pre-sale system of our country.In the last part, put forward specific proposals for the perfect of the commercial housing pre-sale system. In advance, establish a strict access and withdrawal system of the pre-sale market is necessary. Second, the system of pre-sale contract registration should be perfected to coordinate the conflict of the interests among the parties. The third, it is necessary to establish financial regulatory system. After the relief measures, punitive damages should be improved and establish the risk guarantee fund of the commercial housing pre-sale system. Ensure the damages to the rights and interests of the parties can be timely and effective relieved.