Research On The Expected Right Of Commercial House

According to having or not all the important conditions for the establishment of civil rights, civil rights can be divided into vested right and expected right. Relatively with entire right and vested right, expected right is one right that is in the transition stage to the vested right, and that is one imperfect, future and combining dynamic with static right. But expected right has "the validity of right in advance", and has the independent functions of right. Therefore, expected right has the effect of countering, handling and formation, so it can be transferred and distributed.The expected right is generally set up during the process of non-off-hand trade. Transaction of commercial house is a typical non-off-hand trade. Due to the regulations for acquiring real right, which is the constraint of the establishment, change, transfer or elimination of the real right, and the transaction of commercial house is a a series of process which concludes the periods of making and implementing a contract till the buyer gets his ownership of the house, the buyer usually cannot get his ownership immediately during the transaction. Before the buyer gets his ownership, after he obtained certain right status for the contract implementation, such as the pre-registration of the real estate or acceptation of the seller's delivery, is the right of the buyer still claimed in contract? In the divorce proceedings, whether can the property benefit under this state of expected right that the party acquired by buying and accepting commercial house be distributed and handled? This dissertation will tentatively discuss this question under the general theory of expected right.The author holds views as the following: before the buyer gets his ownership, because of the registration of the real estate or the acceptation of the delivery, to relative extent he can counter the seller and the third party, and the buyer has gained definite legal status to the obtaining of future ownership. So it has had the important conditions to form expected right, as a result that the buyer is entitled to the expected right of ownership of the house he has bought. The expected right that the buyer gained also has the powers and functions of disposing, transferring and dividing as other expected rights. Therefore, in the divorce proceedings, the expected right to get the commercial house as the couple's joint estate can be divided and handled. By dividing and handling the expected right, the future ownership can be clear and definite.According to item 21 of Explanations about some problems about the application of the clause of Marriage Law of the People's Republic of China(II) issued by the Supreme People's Court, the regulation of not dividing totally the house that has not gained its proprietary right ignores the existence of the expected right of the buyer. It is not in keeping with the theory of law procedurally and actually not to divide the expected right that the interested parties have obtained. That may lead to many troubles such as continuous disputes or damages to one party or both parties and even a third person. Therefore, this explanation about not dividing the commercial house before getting the proprietary right in the divorce proceeding is not advisable.When the couple are getting divorced, the division of the expected right of the commercial house's proprietary right that the interested parties have already obtained relates to three problems. The first one is the ownership of the expected right of commercial house; the second one is to give the economic compensation to the party who has not been allotted the expected right of the commercial house; the third one is the sharing of debt of buying house. To solve these problems, the way of the division should be consulted first by both sides. If the consultation fails, and both parties agree to decide its ownership by tendering, then it should be decided by tendering. If both ways fail, it can be divided in the appraised price, or after the court entrusts evaluating organization with appraising the house, the subject of the expected right will be decided by the rules of giving some consideration to the party in housing problem and women and children, and considering the paying of the debt for buying house, the economic ability of the interested parties, the delivery and pre-registration of the commercial house. The party who gets the expected right will bear all the debts of the house, and give the other party economic compensation according to the value deducting debts from the price of the house decided by rendering or appraising.