Research On The Validity Of Commercial Housing Subscription Agreement

In the judicial practice, the developer and consumer sign the commercialhousing subscription agreement.But the nature and the legal validity of this contractis indefinite, so the disputes appeared in this situation, both of them could not protecttheir own legal right and that’s not good for the market order or the transactionsecurity, we need a Judicial solution to solve this problem. According to thesummary of common subscription agreement content, we catch that manysubscription agreements are not only conform to the pre-contract but also accordwith the contract. Distinguish main content of subscription agreement and infer theparty’s intention can only differentiate the per-contract and the contract in a limitedrange. So we can’t recognize subscription agreement to any kinds of contract in ourContract law under the background of no explicit legal provision and on sameattitude in academic circles about this problem. Even though we try to use subjectiveestimation to avoid this question,but it still not work because trial result and thecontract justice value will be conflicted.In this situation, how to reasonably concluded the commercial housingsubscription agreement so can make it harmony in the theory and practice is animportant issue. In this paper, the author cognize the nature of this problem in theview of practicality, based on the actual effect and legal effect to analyze thecharacter of per-contract, to compare pre-contract with contract. Compare “Must thecontracting theory” with “Must be consultation theory”, if the subscriptionagreement is regard as pre-contract, the contract will be regard as subject.Comparetwo conclusions that one regards subscription agreement as per-contract and theother regards it as contract. If we conclude it has the nature of per-contract, thesubscription agreement’s legal validity will be limited and can’t meet the demand ofpractice. If we conclude it has the nature of contract, because the scope of validity ofcontract will be restricted only in the regulation, so it is possible. If we can’t doanything, we should turn to reverse. The subscription agreement which has two kinds of nature of pre-contract’s and contract’s, we regard it as contract. Thencombine with the effectiveness of the sales contract and the protection of the partiesto make it more adapt to the needs of legal practice.The contract effectiveness is limited by the injunctive norms during thepresale commercial housing market. In order to balance the intension and publicregulation, we need to explain the contract in the managerial specifications andprotect the true intension. When we regard subscription agreement as pre-contractand the subject is signing the contract, there’s no possible to violate mandatoryspecifications. When we regard subscription agreement as contract, the breakthroughof contract effectiveness need to reach the effect that may resolve this problemgenerally. With more and more disputes appeared, the theoretical discussions need tobe tested by practice.