Legal Analysis Of Pre-sale Commercial Housing Concerning On "One House Sold Twice"

With the continuous expansion of the scale of China’s real estate market, housing demand is rising day by day, the pre-sale system of commercial housing is bora at the right moment. At an early time real estate developers can start large-scale commercial housing development projects with just a relatively small amount of funds they can use; For those buyers, presale houses have greater price advantage than existing houses, under the background of high housing prices, the temptation of the price difference between the same type of presale houses and existing houses for many general buyers is too big to resist, this is also the main reason for the buyers to accept the pre-sale system. Therefore, since the pre-sale system was first proposed by Hong Kong in the 1950s and then effective practice, Guangzhou, Shenzhen and other economically developed areas have also keep up with this trend, and then quickly spread to other inland cities. Pre-sale system of commercial housing in China matured gradually with a large number of relevant laws and regulations’established. However, because the pre-sale system of commercial housing starts late in our country, relevant laws and regulations are not perfect enough, inter-cities’regulations are not unified yet, the relevant functional departments are not able to play their proper roles, for now, there are still a lot of commodity houses were sold in a mess, some bad developers regardless of the honesty principle in market activities in order to pursue more economic benefits, prejudice buyers’ legitimate rights and interests, result in the phenomenon that one room was sold to two or more buyers common occurrences, it has become a prominent problem in the real estate market in our country, influenced the social credit’s healthy development, prejudiced the harmonious society’s build, destroyed the normal order of market transactions, hindering China’s real estate industry’s healthy and orderly development.Four chapters in this paper were discussed to comment the problem that one house was sold to two buyers, combined with an actual case to analyze how our country’s current legal norms to handle this problem, and what can be perfect on this issue:The first chapter mainly discusses the current situation of China’s pre-sale market, the conflicts of interest in law when one house is sold to two buyers and its causes. Since the pre-sale system was introduced to China, the problem that one house is sold to two buyers comes, the fundamental reason is that real estate developers sell the same set of house to the other person before its ownership transferred, with the purpose of earning maximum benefit at the expense of commercial credit, damage the legitimate interests of the other party of the contract seriously, what’s worse, the legal supervision is lax on the transaction of real estate, supporting system is not perfect enough, developers’ such illegal behaviors were not punished effectively, resulting in their default costs are low but lucrative.The second chapter describes an actual cases, concretely analyze specific issues when one house is sold to two buyers may be involved, mainly including the analysis of court decisions; the validity of two contracts and how to identify a buyer is the " malicious third person", so that the first buyer can claim the latter contract is not valid according to relevant laws and regulations; how to determine the final belonging of the controversial housing.The third chapter firstly introduces the legislation on how to regulate the problem that one house is sold to two buyers in different countries and regions, mainly about benefits handing over system and the replacement claim of compensation system; then focuses on China’s current laws to solve the case. This paper expounds the relief ways to protect the damaged rights and interest, mainly base on damage compensation for breach of contract and punitive damages liability; suggests to improve the scope of protection of "Consumer Protection Law" so as to include the commercial housing buyers’ rights and interests, and to introduce the violating claims system, sequentially can protect buyers’ legitimate interests in all directions. In addition, relevant departments should increase efforts to crack down bad developers’ illegal behaviors, maintain the normal activities orders of the real estate market.The fourth chapter describes China’s current legal systems which are used to prevent the illegal behavior at the pre-sale stage, including commercial housing pre-sale contract registration and filing system and advance notice registration system. The establishment of advance notice registration system makes the abolition of pre-sale contract registration system has been controverting. This chapter makes a comparative analysis on the differences between the two systems, draws a conclusion that they have a complementary relationship to regulate the transaction order of real estate market together. But now, because of the inherent shortage of the former and the principle provisions of the latter, the chaotic phenomena have not been completely eliminated. Therefore, the last chapter put forward the author’s legislative proposals for improving the advance notice registration system, hoping that the unified and coordinated registration system of real estate to be built in our country as soon as possible, in order to protect the legitimate rights and interests of disadvantaged parties effectively.