| The real estate industry plays a quite important role in the development of some aspects of civil economy, the procedure of urban construction, as well as the improvement of our living environment. However, with long period of construction and huge risk of market from the development of real estate-project, if marketing administration is unsound, trading behaviors not following the rules, the interests of promised buyers, the healthy development of real estate industry and the stable state of social economy could be badly impacted. Pre-sale, as one of the major mode to the sale of commercial residential buildings, having an important impact on speeding up cash flow of developers, improving the utilization of funds, reducing the cost of development, as well as increasing housing supply scale and so on, promotes the development of the real estate market of China. Nevertheless, since the related laws and regulations are not perfect, the phenomenons of speculation on the land for building, unfinished buildings, developers robbing money and escaping and so on, have happened frequently. The study on how to reinforce the construction of laws and regulations, and to perfect the system of housing pre-sale, is of great importance to the healthy development of real estate industry.The system of housing pre-sale permission have a good influence of supervision and administration on the qualifications and capabilities owned by developers, which can evade market risk usefully. Some related laws and regulations consider the acquisition of pre-sale permission as a prerequisite of the pre-sale of commercial residential buildings. However, there are still lots of cases about sale of commercial residential buildings without getting qualified pre-sale permission happening in real life. In order to keep contracts effective as far as possible, judicial interpretations have determined that contracts are effective on condition that pre-sale permission is acquired before the lawsuit is filed. In spite of this, there are still many problems which should be defined by us:when under these circumstances such as being without obtaining the permission of pre-sale, reissuing the permission of pre-sale, revocation of the permission of pre-sale, and expired permission of pre-sale and so on, how to determine the effectiveness of contracts of housing sale; whether some related judicial interpretations surpass the range of the law, and whether such interpretations are reasonable; how to determine the liability of compensation on condition that contracts are defective, especially facing with circumstances that developers want to terminate a contract, while buyers, with a clear understanding of developers having not acquired pre-sale permission, still have made deal with developers.The first part of this article states the historical background and present situation of development of housing pre-sale system, introduces the system of housing pre-sale and pre-sale permission, and points out loopholes on current system of housing pre-sale, putting forward that different cases about lack of pre-sale permission can have different influence on the effectiveness of housing pre-sale contracts and the related legal responsibilities.The second, third and the fourth part discusses the effectiveness of housing sale contracts under circumstances such as having not acquired the pre-sale permission, reissuing the pre-sale permission, revocation of pre-sale permission and expired pre-sale permission separately, pointing out loopholes about the identification to effectiveness of housing pre-sale contracts which have not been found yet, and makes relatively reasonable standards of compensation to damages according to the theories of foreseeability and contributory negligence by means of analysis of law, study on cases,interpretation of comparative law and so on, in order to provide theoretical support for related laws and regulations as well as judicial interpretations of our countries. |
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