| Presale of commercial residential building is a legal act by which the real enterprises pre-sells the house under construction and delivers it to the buyers on a determined future day and the buyers prepay an amount of deposit or purchase price. The system of presale of commercial residential building has been established and developed ender a serious shortage of supply of commercial residential building and lack of construction funds, and now it becomes a principal way of commercial residential building sale. The system plays an important role in the development of real estate on accelerating cash flow and improving efficiency and reducing costs.The interest subject in the pre-sale of commercial residential building involves many aspects: real estate enterprise's benefit, the pre-purchaser's benefit, commercial bank's benefit, contractor's benefit. Real estate enterprises are "sponsors" in the process of presale of commercial residential building. the main interests was reflected in the pre-sale proceeds of real estate; The architectural engineering contractor enjoys the legal mortgage to the architectural engineering, The bank in constructs the project mortgage and in the commodity apartment mortgage guarantee enjoys one kind of agreement guarantee real right; When the developer, the buyer, the contractor, the bank right has conflict, how in the legal frame realizes the benefit to be balanced, causes the commodity apartment to sell in advance the system to have the rules and regulations and the consummation important content, But the present law, the laws and regulations as well as the judicial interpretation cannot solve various main bodies conflicts of interest effectively, moreover ,once has the conflict, also does not have the consummation mechanism to balance all quarters benefit. This article analysis all quarters right content and the legal nature in the process of Presale of commercial residential building, discuss the legal mechanism to solve the right conflict, I hope this article will promote presale of commercial residential market healthy development.In addition to the introduction and the conclusion, this article has four parts, about 30,000 characters.The first part, elaborate the elementary theory about presale of commercial residential. Presale of commercial residential is a sale strategy which real estate enterprises usually uses and has extremely positive significance both to the buyer and real estate enterprises. It need to obtain the right of the construction of the project planning and construction permit for the project and achieve a certain percentage of investment and determine the progress of the construction and completion of the delivery date, and obtain a license of the pre-sale housing.The second part discusses the right and legal nature of the buyer, construction contractors, and the bank. The buyers enjoy the anticipation right of the commercial resident, this anticipation right then had the real right after the advance notification registration to arrange his potency; The architectural engineering contractor enjoy a priority claim to the construction project, in essence, the Priority is a legal mortgage right, intended to set a priority in the agreement mortgage, the bank enjoy a agreement mortgage to constructing the project. The nature of this mortgage has many disputes, the viewpoints of some mortgage, the theory the right pawns, the viewpoint of remises the guarantee and so on. The author thought our country's mortgage system is not the mortgage, the right pawns remises the guarantee, it is in the absorption, profits from British and American, in the Hong Kong mortgage foundation, unifies our country's concrete practice, forms one kind of new guarantee real right.The Third part elaborate on the right of the conflict and the coordination the pre-sale of real estate, now only the Supreme Court's publish " approval on the issue of priority of the construction " ,it regulate the right of conflict for consumers, banks and contractors , despite of making a tilt for protection the interests of the consumers and the contractors and reflects the legislators to pursue the concept of fairness and justice legislation, the article 286 of the "Contract Law "and the "approved" of the Supreme Court lack the necessary convergence for the "Property Law" and "Guarantee Law", we can not resolve fundamentally the main conflict of the right. Author analysis the conflict of the right to conclude that the Article 286 of "contract law" and Supreme Court "approved" have defect in settling the conflict of pre-sale of houses: (1) legislation have not resolved the conflict of the right, whether the legal mortgage can be given up by agreement lacking of clearly defined; (2) the anticipation right that the buyer who delivery all or most of purchase shall owned does not require registration or notice of registration; (3) the Priority right within the scope of the specific amount of project price lack the necessary information; (4) "Approved" only provides consumer enjoys the priority right, lack of provisions on other subjects; (5) Legislative provisions and structures will be postponed to export runs counter to the basic theory of the right results.The fourth part:: author put forward the idea about building the legal mechanisms to resolve the conflict in the pre-sale of real estate: First, propose the theory of settling the conflict in the pre-sale of real estate: we resolve the conflict of the right by using the principle of effective priority of property rights , the principles of public property and property of the public interests of society take precedence over the individual interests; Secondly, author put forward her tentative idea in resolving the conflict of the right. Priority of Contractor should be registered, registration is an against element for legal mortgages , the author propose that when enter into construction contracts register the construction of price in order to determine the priority according to the registration time (2) the price which the buyer pay for should be deposited in the scope of registration of the project, the contractor can be paid priority in the scope of registration of the project, this way not only can remove the trepidation of the buyer but also protects the right of priority for repayment of the contractor. (3) The anticipation right of the buyer should be registered in order to determine the priority according to the registration time. Thirdly, it should be clear the nature of right which parties owned in the pre-sale of real estate and improvement the legislation.In this paper, Since the beginning of the pre-sale of the real estate involved the main right and the nature of the rights of the main starting point, a full analysis of the buyers, construction project contractors, the banks of the legal nature of rights. On this basis, Reference the article 286 of the "Contract Law" and "on the construction of priority for repayment of the purchase price re-examine the question of ,analysis shortcomings of the existing conflict in resolving the right of conflict in the pre-sale process, the author use the basic theory of property rights, combined with the relevant provisions of China's "Property Law", "Guarantee Law", put forward the idea of tripartite to solve the conflict. Not only protect the legal rights and interests of the subject, safeguard the fairness and justice of the law, but also keep the article 286 of "Contract Law", and "approved" in line of the basic theory of law, this is a difficulty and innovation in this article. The author hopes that the real estate pre-sale system in our country have been improved.
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