Research On Overlord Provisions In Commercial Housing Sales In China

With the further development and improvement of China's socialist market economy system, buying a new commercial house has emerged as a great event in people's life. Commercial housing has high value, high hedge, and the demands of daily life are growing, all of which determine the higher requirement for the living condition. However, high trading volume and high-yield in real estate industry does not mean that the whole commercial housing market is perfect and mature. The important parts in the commercial housing market also need to be regulated and improved by laws. In China, the existence of "overlord provisions" existing in the realty-trading contract, is manifestly unreasonable and unfair, seriously infringes consumers'rights, make homebuyers suffering from both material and immaterial blows.The so-called"overlord provisions"refers to the unfair provisions which is established in advance by real estate businessmen in the contract and intended to restrict or waive their future liability. When buying homes, especially signing the contracts, there are a number of standard clauses listed by estate businessmen or housing agency to escape their responsibility; although having appointed the obligations and responsibilities of buyers and sellers, the duties and rights between buyers and sellers are unfair, which finally evolve into"overlord provisions". "Overload provisions" are set up by one side in advance,by which the side could exempt responsibility in certain situation. From the points of law, the"overlord provisions"ruthlessly tramp principles of equality, freedom, and honesty relating to the contract in China's"Contract Law".As we all know, real estate is a high-priced commodity, characteristics of it are longer-term purchasing, have complicated transactions procedures and complex elements. Especially in trade process, it is those complex factors that make buyers can not distinguish the quality and actual situations of homes when signing the contract until being delivered for use, some latent contradictions of transaction could become apparent. The reason why leads to the existence of"overlord provisions"is precisely because of the imbalance of supply and demand and of bargaining talents between two parties, which are key factors of the formation of"overlord provisions".Now, there are many theories studying on the"overload provisions"in real estate purchasing contract, but there still have no suitable laws to control this phenomenon, which means that theory cannot match with practice. The real estate developers is in a superior position, the home buyers are vulnerable, buyer-seller relationship is difficult to achieve equality and freedom, which goes against the socialist economy and would become a destabilizing factor undermining the socialist harmonious.So, the paper points out the negative influence for our national economy by analyzing the overlord provisions from the aspects of theory and practice, and comes up with lots of valid measures by learns from the experiences of other countries. On the aspect of legislation, special legal standard contract should be made. Then, on the aspect of judiciary, judges and some related organs should be entitled to examine contents of standard contracts especially disclaimer clauses and provisions of restricting rights according to the reasonable standard of review, and censorship should be established. The related executive agency should be entitled to examine the fairness and rationality of the standard contract, to correct contract provisions by which the party offering the contract would abuse the contractual freedom and possibility infringes consumer's interest. Based on the given thread, the paper has three chapters:The first chapter discusses the overview of overlord provisions in real estate contract. Starting from the birth and development of standard contract, the first part focuses on the notion and origins of the overlord provisions in the real trading contract. The second parts discusses the development of standard contract in China, special analysis the feature, defines the overload provisions and its features, probes into the legal nature of the overlord provisions.The second chapter discusses the reason for the existence, presentation format and the negative influence of the overlord provisions. The first parts analyzes the phenomenon of the existence of overlord provisions in realty trading contract, concludes that the imbalance of supply demand relationship is the key factor of its existence the overlord provisions and the imbalance of negotiation capacity is an important factor of its existence. The second part analyzes the presentation format of the overlord provisions by limited space. The third part shows the negative influence for our national economy. Because the price of home is high, the influences for the consumers are great. The original purpose of the standard contract is to improve economic efficiency, but the overlord provisions bring with lots of legal disputes.The third chapter discusses the problems in restricting the overlord provisions and the solutions. The first part put forward the problems in restrict the overlord provisions existing in Chinese legislation, judiciary, and administration. The second discusses reference meaning of other countermeasures in restricting overlord provisions by comparing the legislation of civil law countries and common law countries. The third part focuses on the establishment of measures from aspects of legislation, judiciary and administration to restrain the existence of overlord provisions.In all accounts, the paper underlines the negative influence for our national economy, meanwhile tries to come up with solutions for the existence of overlord provisions, hopes it would draws lawmakers attentions to taking measures to enhance the protection for home buyers, to defend consumers'interests, thereby safeguard the real trading market order.