Research On Legal Problems Of Presale Commercial Housing Contract

Along with the economic system transformation from the state controlled economy to the socialist market economy, the traditional real estate transaction mode can’t satisfy people’s needs any longer, the new way of the pre-sale of commercial housing mode arises at the historic moment. In recent years, as a form of commercial housing sale, the presale of commercial housing is widely used and promotes the development of real estate market in China, however, the drawbacks of presale is increasingly prominent. As China’s real estate market started late, the real estate laws and regulations are not perfect, resulting in a large number of commercial housing pre- sale contract disputes, bringing many problems to the judicial practice.The paper mainly consists of five parts:The first part defined the conception, characteristics and nature of the commercial housing presale contract. This part analysis detailed concepts and natures of the difference, compared with some similar contracts of presale.The second part is commercial housing subscription agreement issues based on the typical cases, focusing on the analysis of the differences between commercial housing subscription agreement and commercial housing pre-sale contract. As the nature and the legal validity of the subscription are indefinite, so the disputes appeared in this situation, we need a solution to solve this problem.The third part is from the perspective of contract validity study angle, permits for pre-sale of commercial housing pre-sale contract signed with no impact effect on the parties, judicial interpretations, the seller has not obtain permits for pre-sale of commercial housing and the pre-sale contract signed shall be deemed as invalid, but if the pre-sale permit is obtained before the prosecution can be identified effectively. Then developers in practice whether can borrow not get pre-sale permit on the grounds and advocated the presale contract is invalid? How to regulate developers malicious default behavior, and protect the customers’ rights and interest? In this part, through the case analysis method, discusses the effect of the pre-sale permit commercial housing pre-sale on the commercial housing contract.The fourth part analyzes the legal nature of the present registration system of China, and point out the legal nature of the present registration system is country’s administration behavior and measure and is not the necessary condition of confirming the contract potency through comparing with the system of preliminary noticing registration.The fifth part sorts through the law and regulation about the transfer of the pre-sale of commercial housing system in China, concludes that China’s legislation on the transfer of the presale of commercial housing rules is relatively contradictory, the 2007 amendments to the "City real estate management law" left the question of the transfer of the presale of commercial housing of the provisions to the State Council, the State Council has not yet promulgated the current relevant laws and regulations, local regulations about the transfer of the pre-sale of commercial housing are contradictory, leading to different results in different areas of judges in the judicial practice.