Study Of Pre-sale Legal System

The key of the presale of commodity apartment, usually called the sale of future house or the sale of unfinished buildings is that when the buyer and the seller enter into a commodity apartment sales contract, the commodity apartment is actually not completed yet, that is to say, such apartment, objectively speaking, does not really exist which brings about a lot of problems to the practice. At present a consensus hasn't been reached in the theory circle as to whether or not the presale of commodity apartment is shaping into a system. However, according to the authorized statement of some prestigious academic scholars, the presale of commodity apartment could be regarded as a system. Therefore, I discuss on the presale of commodity apartment of our nation as a system.I adopt the method of analysis and comparison, demonstration and enumeration, chapter and. verse in my paper, so as to study on the presale of commodity apartment. My paper includes seven chapters in total.Chapter One, I define the concept, condition, development, situation, and the debate as to whether or not the presale commodity apartment system shall continue to exist or be abolished, and eventually come to conclude what it meant to Chinese society. First, I affirm the value of the above-mentioned system. Then from the viewpoint of financial circle, I analyze the best way to finance for the company short of the support from the bank is to exercise the presale commodity apartment system. Thirdly, from the viewpoint of real estate developers, the presale commodity apartment system enhances the efficiency of fund usage. Furthermore, the developers are able to orient the market, adjust the supply appropriately, so as to maximize the benefits and interests. Fourthly, from the viewpoint of house buyers, the biggest benefit of the presale commodity apartment system is sharp increasing price of future house when it turns into finished buildings.Chapter Two, I introduce the presale commodity apartment system in Hong Kong, Macau and Taiwan district, and in the foreign countries, compare the presale system of China Mainland with that of Hong Kong and the United States. I particularly point out the reason why unfinished deserted buildings are emerging in China Mainland is that we largely rely on improving the standard of the presale of unfinished buildings to protect the security of transaction in China Mainland, so the rights and responsibilities are ambiguous. On the contrary, it mainly relies on legal system to protect the security of transaction to the largest degree in Hong Kong and United States. The opening of information plays an important rule on the protection of the security of transaction in the United States.Chapter Three, the legal nature of presale contract is the expectation of subject matter, the conventionality of delivery time, national intervention of presale. The presale contract has the legal nature of sales contract and work contract, and has general principle and particular stipulation. I hold that the presale commodity apartment contract is a special sales contract, for it has the legal nature of sales contract and work contract. Therefore, it shall not be regarded as a common contract, and much attention shall be paid to a lot of regulations and stipulations in practice.Chapter Four, I discuss on the prospect of advance notice registration of the presale of commodity apartment aboard, the relationship between property law of China and advance notice registration, the effect of preservation, cis position and bankruptcy of advance notice registration. Therefore, the basic nature of property rights is the no-cause character while the nature of general obligations is the cause character, that is to say, the act of advance notice registration turns the contract credit into property rights.Chapter Five, I start with the origin, theory, nature, and situation of the mortgage. The key point of mortgage is mortgage loan, the rights and obligations of the mortgage parties, the realization of mortgage, the fraud of mortgage loan and preventive measures. I hold that there is no so-called mortgage of future house in legislation of China Mainland at present. We adopt mortgage loan instead. The reason why we use the so-called mortgage is that there are some similarities between mortgage of future house and mortgage loan. We consider mortgage loan to be the legal nature of the right of mortgage of future house for the reason that it is regarded as the combination of mortgage of future house and bank's right of subrogation. It reflects the particularity of mortgage loan of China, which is a special guarantee, complying with the situation of our nation.Chapter Six, the reassignment of the presale of commodity apartment throughout a lot of countries in the world, is actually the act of the mortgage of unfinished buildings. I also introduce the realization of reassignment of China Mainland, the taxation of reassignment, particularly the effect and scale of the administration rule on the limitation of assignment of future house promulgated by Shanghai municipal government in order to attack the speculation behavior in the real estate market, and inhibit the increasing of house price. I hold that with the implementation of Contract Law, the People's court rules an invalid contract shall be not on the grounds of local regulations and administrative laws but the law formulated by National People's Congress (NPC) and NPC standing committee. The regulation on the limitation of assignment of future house promulgated by Shanghai municipal government is not powerful enough to judge whether a contract is valid or not. Therefore, although the policy of the limitation of assignment of future house is binding upon the registration of house in Shanghai, but it won't have an influence in the judge whether a contract is valid or not, if only the intention expressed by the parties of the reassignment transaction is genuine, and the contract doesn't violate the restriction stipulations on invalid contract.Chapter Seven, I focus on the protection of consumers of the presale of commodity apartment. As consumers of real estate is a concept of upper layer, and consumers of the presale of commodity apartment is a concept of lower layer. Therefore, I go straight to the study on the protection of the rights and interests of the consumers of real estate. I start with the theory of consumer protection, study on the punishment clauses of the law on the protection of the rights and interests of the consumers, particularly, the juridical interpretation promulgated by the Supreme Court of double punishment on "One House Be Sold to Two Buyers" , illustrating the basis of particular protection of consumers of real estate. I hold that real estate as a special commodity plays an important role on the consumption of citizens. The protection of the rights and interests of the consumers who buy future house shall be given priority to, for it relates to the survival right of common people. I hold that we shall protect the rights and interests of real estate consumer by means of confirming the structure of rights and interests, defining the stage of protection, revising the laws, and strengthening the legislation.