The Study About The Application Of Intertemporal Law In The Real Estate Deal

In recent years, in order to curb the momentum of housing prices,the State Council issued a series of policy controlling the real estate,such as the new "National ten","National eleven", a new round ofmacro-control efforts began to gradually increased. The national andlocal governments have adopted many strong macro-control measures, Suchas increasing the proportion of home loans down payment, to suspend thepayment of the third mortgage, and limiting the purchase of copy numberin some cities. That is the" New Real Estate Deal", the introductionof which have controlled the high prices, and triggered a large numberof defaults and check-out tide of housing sale contract at the same time.At present, such disputes and the litigation have growled gradually inthe large and Medium-sized cities. In these cases, the defaulting partyis the buyers always, and the factual basis is the market regulationpolicy in the New Deal real estate, and the reason is that the partiesalways lacked of the anticipation of the new real estate Deal measures.But there is controversy about the identification of the legal basis,mainly concentrated in three areas, which is the intertemporal law, forcemajeure, and the principle of commercial risk. We determined the intertemporal law in2009for the first time, whichelements included time factors, prerequisites, the objective factors，subjective factors, and results factors. But as the exceptions of theprinciples of observing contract strictly, China has not yet defined theapplicable standard and scope of application of the intertemporal law,and there is a gray area between the intertemporal law and force majeure,which made a variety of judgment in the administration of justice. Sowe should explicate the legal characterization of the New Deal injudicial practice, applying the intertemporal law strictly andcarefully.The Real Estate Deal is the main line in this article. Againstingthe phenomenon of the Increasing frequency of contract disputes afterthe introduction of new real estate deal, this article discussed thecontents of the real estate deal and characteristics of the triggereddefaults Firstly, Then investigated historically the intertemporal lawand Introduced the meaning, foreign theoretical basis, Elements, etc.By comparing the intertemporal law to force majeure and commercial risk,with typical cases, this article attempt to suggest the application ofthe Principle of changed circumstances in the Real Estate Deal. Thisarticle holds that there should be analyze on Specific issues in thecontract disputes resulting from New Deal real estate:If the Real EstateDeal is impacted policies, such as "increasing the proportion of downpayment loans", which should be recognized as the normal commercial risks,and the contract should be continued to fulfill. Unless the buyers canprove that If continue with the contracts, there will be suffered seriouseconomy difficulties and lives affected, At this point, the buyers canadvocate the termination of the contract Applying to the intertemporallaw;If the new real estate deal is the policy limiting the rights, suchas "limiting credit ","limiting sales", at this time, the contract-based environment has Occurred abnormal change, and there would be obviouslyunfair if continued with the contracts, then it should be recognized asthe intertemporal law, the buyers can dissolve or change the contractwithout incurring liabilities. Meanwhile, in view of the particularityof the intertemporal law, we should be strictly and prudent when dealingwith the contract disputes applied the intertemporal law in Real EstateDeal, such as do concrete grasp on specific cases, allocate Rationallythe burden of proof and comply with the strict procedures.