Houses For Sale And Transfer Of The Legal System

Transfer of the advance-sale commercial housing, popularly named as "unfinished building scalping", refers to the pre-purchaser transfers the housing which he buys by advance sale to others. This action usually includes two circumstances: one is the purchaser transfer the housing before he acquires the title of the land and housing by registration; the other is the purchaser transfers the housing which he purchases on mortgage that has not expired, even though has registered the housing and acquired the muniments of title of the real estate.In recent years, China's market of real estate has been developing rapidly with the advance sale of housing being the important means of selling the housing. The transfer of the advance-sale housing has become very brisk due to the continuous climbing up of the housing price. Holding that the transfer of the advance-sale housing is the origin of the continuous climbing up of the housing price, some scholars suggest that the free circulation be limited or forbidden. In practice, each area takes its own understanding of and action to the transfer of advance-sale housing, for there is no direct legal basis for the phenomenon. The lack of theoretical research results in the no-system-protecting transfer of the advance sale of housing confronts difficulties in practice that the housing can not be circulated normally to achieve its value. Therefore, this thesis makes a comprehensive carding and analysis to the transfer of advance-sale housing. Besides the introduction and conclusion, this thesis discusses the topic in five parts.The first part discusses the system of the advance sale of the commercial housing. The transfer of the advance-sale commercial housing presupposes the system of advance sale, thus, this thesis firstly analyzes the system of advance sale. Initiated in Hong Kong, the advance sale of housing owns the most distinguishing characteristic that the housing has not been built up at the time of transaction, but the essence of which is still the purchasing contract of real estate. In practice, the advance sale has created numerous .problems. Therefore, there are many people demanding the advance sale to be abolished. This thesis holds that there is no circumstance to abolish the system at present in China, and that the system, without abolishing, shall be further supervised and perfected.The second part analyzes and inspects in all aspects the transfer of advance-sale housing. This part firstly analyzes the appropriateness of the transfer of the advance-sale housing. Secondly, after analyzing the appropriateness of the transfer of the advance-sale housing, this paper comprehensively card and inspect China's laws and regulations concerning with the transfer of the advance-sale commercial housing. Thirdly, there are option dealing theory, property theory, and credit theory on the legal attributes of the transfer of the advance-sale housing. The assignment of credit theory is supported by most of the scholars, as well as the writer. Finally, analyze the conditions and procedures of the transfer of the advance-sale commercial housing.The third part introduces the numerous situations in the transfer of mortgaging housing. The mortgage which means hypothecation in mainland China has distinguishing attributes with the mortgage in Hong Kong. Involving many parties, the legal nexuses of mortgage are very complicated, of which the transacting nexus between the pre-purchaser and developer and the mortgaging nexus between the pre-purchaser and the bank are the two basic nexuses. To define the obligation of each party is favorable to the smooth transfer of the mortgaging housing. The writer makes great efforts to comprehensively analyze the obligations of the pre-purchaser, developer, bank, and transferee in the process of the transfer of the mortgaging housing in order to promote the transfer.The fourth part discusses the registration for records and relative systems of the transfer of the advance-sale housing. China's current laws provide that the transfer of the advance-sale commercial housing must be registered for records, but such registration is not the registration of property right in traditional sense, for it is only the administrative measures without the effects of property rights adopted by the administrative organs to strengthen administration, does not take. The defects in the system of registration for records call for the construction of advance-notice registration system, which entrust the effects of property to the pre-purchasers' credit so that the interests of the pre-purchaser and the transferee can be better protected.The fifth part mainly discusses China's legislative choice to the transfer of the advance-sale commercial housing. The government shall enact laws to regulate, rather than restrict or forbid in the same way, the transfer of advance-sale commercial housing, for it has solid realistic foundation, positive social meaning, and the sources of legal theory. The writer holds that the legal system of the transfer of advance-sale commercial housing should be perfected in the following four aspects: to integrate the legislation and define that the advance-sale housing can be transferred; to establish the system of advance-notice registration for real estate; to construct a unitary market system for the transaction of real estate; to clarify the conditions and the procedures of the transfer of the advance-sale commercial housing.