Study On The Legal Issues In The Transfer Of Advanced Sale Commercial Housing

After China's housing reform, the real estate market is developing rapidly, with increasing amounts of commercial housing being offered for sale, this then brought about the development of the transfer of pre-sale commercial housing.?The present absence of a unified legislation regarding the transfer of pre-sale housing in China, has resulted in many disputes and misunderstandings amongst the parties involved. This is due to local levels of legislation choosing to adopt a policy of "each one goes its own way". Where different results for trials over similar disputes have emerged in different regions in the country. This confusion over the legislation has undermined the authority of the law.?As the legislation is not unified, there is great controversy and debate amongst theoretical circles.?In view of this, this paper affirms the legitimacy of pre-sale housing, by in-depth research and demonstration of the relevant legal issues of the transfer of pre-sale housing, and strives to put forward its point of view on perfecting the transfer of the pre-sale housing system, in order to achieve the following two purposes:First, find the best model to accurately quantify the value of the transfer of pre-sale housing and put forth a unified code of conduct for this practice. To set up a unified system for the transfer of pre-sale commercial housing, it offers a trading platform for pre-sale commercial housing owners to sell the houses before obtaining their house ownership certificates. It also creates legal and orderly trading conditions to encourage buyers to purchase houses, to resolve housing demands, to optimize the real estate allocation of resources, to reduce purchase disputes, and to promote activity in the real estate market.?Secondly, provide a theoretical basis for improving the legal system for the transfer of pre-sale housing. Firstly, an in-depth study of the transfer behavior of pre-sale housing shows the definite possibility of its existence in terms of its philosophy and basic principles of private law, which provides theoretical support for the harmonization of legislation. Secondly, it takes the traditional property law and law of obligation into consideration to improve the system of transfer of pre-sale commercial housing. It then enables people to find the theoretical basis to solve the legal problems arising in practice, which then allows them to achieve the purpose of theory in order to guide practice.Besides the introduction and epilogue, this paper has five parts, totaling about 30,000 words.Part I is an overview of the transfer of the pre-sale commercial housing. The first part of this article is about the meaning of the transfer of pre-sale commercial housing, according to the analysis of the definition, and the point of the transfer schedule and the types. My opinion is that the transfer of pre-sale commercial housing does not mean"speculative", and the accurate definition of that term should be"depending on the subjective purposes of the customer, the re-transfer of the property to another person before the original customer actually obtains the warrant to that commercial housing."Secondly, this article demonstrates the validity of the possibility of the transfer of pre-sale commercial housing in the market economy and its legal perspective. In reality this article supports customers having the authority of transfer from a theoretical perspective.Part II is the study of the mode of operation and effectiveness regarding the transfer of pre-sale commercial housing. In practice, there are generally three modes of operations: the pre-purchase of contracts, with effective terms of agreements on its purchase and sale, and the method of transfer of these contracts. By studying the effectiveness of these three methods, this paper concludes that the transfer of pre-sale commercial housing contracts provides the theoretical foundation for the following study. This section focuses on the research of the people's obligatory rights to transfer, its method of notification, the target of notification and the behavior of notification. According to the analysis regarding the specificity of the traditional assignment of credit, I plan on constructing a theory that could satisfy the practical aspects of this area. This will provide the security for the parties involved in these transactions.Part III is the study on the transfer of pre-sale commercial housing during the mortgage process. After assessing the legal relationship of the mortgage, we can analyze the factors that affect the effectiveness of pre-sale contracts and mortgage contracts. This will provide a good overview of the pre-sale commercial housing re-transfer scene. Meanwhile, the actual existence of early repayment constitutes statutory non-compliance issues which demonstrate that if the lending bank and the pre-sale customer's mortgage loan contracts do not clearly prohibit early repayment in advance, then the pre-sale customer will have the right to early repayment, and to their personal views and comments in regards to such operations.Part IV is the main focus of this paper and it aims to study the registration issue on the transfer of pre-sale commercial housing."The People's Republic of China Property Law"and "The Measures of Housing Registration", introduces the registration system for the transfer of pre-sale commercial housing. After subsequent analysis of its effectiveness, I believe that in regards to the assignee, the registration system provides the smoothest and most effective way to protect the rights and interest of the property. Meanwhile, the character and effectiveness of the registration filing system are still under discussion. There is one opinion that argues that registration filing and pre-registration should be part of two kinds of systems under the nature of the law. This point could improve and perfect the design of the transfer of pre-sale commercial housing and reestablish the fundamental theory.Part V proposes recommendations towards the improvement of the system of transfer of pre-sale commercial housing in China. The previous four-part basis of the study sets up the Systematic Construction of China that focuses on the harmonization of legislation, requirements for establishment, ordering procedures and establishing liability incurred by defects of right on pre-sale commercial housing owners.There are four principal innovations in this paper: First, explaining the meaning of the transfer of pre-sale commercial housing and to make plain the idea that the transfer of pre-sale commercial housing is not as some say"selling flowers"; Second, the particularity analysis of the transfer of the pre-sale commercial housing on the traditional theory about assignment of credit; Third, detailing the analysis of the relationship of force on advance-notice registration between the commercial housing and the transfer of pre-sale commercial housing. At the same time, it also demonstrates the necessity of obligatory registration regarding pre-sale commercial housing sales contracts. Fourth, establishing liability incurred by defections of right on pre-sale commercial housing owners. Due to the limited space available and my lack of experience, this paper has not elaborated on the transfer of mortgage and other issues in the transfer of pre-sale housing. With time I will engage in more in-depth study and research on this topic.