| As the development of real estate industry of our country, the dispute of business in real estate industry is increasing sharply, and new problems arise constantly, which has already become the hot issue in modern society. However during the trade of real estate industry, the phenomenon of expiry certificate's application appears with high frequency, which has gradually become the core problem. In April 28, 2003, the Supreme People's Court announced Interpretation of the Several Problems on the Applicable Law for the Dispute of Contract of Real Estate Purchasing (the following is abbreviate as Interpretation), and it was put into force in June 1, 2003. The draft and announcement of Interpretation is an important act the Supreme People's Court to adapt the swift and violent development of commercial residential building market of our country and realize just trial of people's court. Especially on the problem of property ownership certificate's application for commercial residential building, Interpretation defines the legal obligation for expiry property ownership certificate's application, which offers important legal basis for practical judiciary.The first chapter, starting with the concept of commercial residential building and business contract of commercial residential building, makes a basic statement of the transfer of proprietary rights for commercial residential building. During the transfer of proprietary rights for commercial residential building, transfer of occupation is separated from transfer of proprietary rights. Transfer of occupation for commercial residential building doesn't lead to the transfer of proprietary rights, and the performance of both is separated in time and space. Therefore, deliver can only has the legal consequence of transfer of occupation, and it's registration that is the essential condition and procedure for the transfer of proprietary right of commercial residential building. This part further defines respective obligation in the certificate application and summarizes the reasons for expiry certificate's application by the important analysis on property ownership certificate and registration of property right. Finally this part mentions the announcement of Interpretation that the 18th and 19th items of the Interpretation for the first time established legal liability for expiry certificate's application of commercial residential building directly aiming at the problem on expiry certificate's application, defined the liability for breach of contract that developers have to undertake when they apply the certificate of ownership of the building and they have to make compensation, what's more, buyers can dissolute the contract. This part analyzes the profound actual significance by compare the two cases before and after the announcement of Interpretation.The second chapter, mainly analyzes the rules on legal liability for expiry certificate's application. First this part analyzes the accommodation scope and draft basis of 18th and 19th items in Interpretation. And then this part elaborates condition for establishment, attribution principle, relief condition, form of responsibility and other aspects of legal liability for expiry certificate's application respectively. 1. First of all condition for establishment concludes the condition that certificate of ownership of the building can't be transacted within definite term; secondly because of supplier's personal reasons, certificate of ownership of the building can't be transacted within definite term. 2. The author doesn't think the attribution principle breaks through strict liability principle of contract law. 3. Reasons of vendees and force majeure will be considered as developers'reasons for relief condition. 4. According to the rule of the contract and the choice of vendees, forms of responsibility include the following four forms: Payment of liquidated damages, stand the loss, requirement of actual performance and termination of the contract. Finally this part put forward the author's opinion on the two aspects of limitation of legal proceedings of liability for breach of contract in judicial practice and calculation of liquidated damages.The third chapter first point out the problems existing in current rules of legal liability for expiry certificate's application, which mainly focus on the different meanings and conflict in legislation. 1. On the problems of attribution principle, it's suggested that get rid of the words for suppliers'reasons to further define the strict liability principle. 2. On the problems of identification of certificate application obligation, on account of undefined and imperfect legislation in certificate application obligation in existing laws and regulations, it's suggested that certificate application obligation should be point out clearly to the supplier and the vendee only undertake the assist obligation. 3. On the problems of certificate application time, the author suggests that the certificate application time should be revised as 180 days which is more reasonable. 4. On the problem of liquidated damages, it's suggested that contract doesn't arrange liquidated damages or sum of loss difficult to define should be changed into contract doesn't arrange liquidated damages and sum of loss difficult to define, so as to define the applied conditions; on standard, it's suggested a modulation that refer to the standard of stated 1-2 times of loan interest of expiry of financial institution in People's Bank of China. And then the part further points out that during drafting business contract of commercial residential buildings, both parties involved should draft items on the problem of relevant certificates clearly, and cooperate with each during the performance period of the contract. Finally, the author put forward relevant suggestions that can reduce the phenomenon of expiry certificate application: First, perfect the admittance system for real estate market; second, standard model texts of business contract for commercial residential building; third, improve governmental functions to improve work efficiency. |
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