Research On Specific Performance In Real Estate Sales Contract

As one of the remedial measures of default,the specific performance is expressly provided in Chinese Contract law,and it shows distinctive characteristics of the times at each stage.Through the compilation of the specific performance system of China and the comparison of specific performance and compulsory enforcement of other countries or areas such as Britain,Germany,Japan and Taiwan,it reflects a common trend: in the case of a breach of contract,the specific performance as a remedial measure is very important,and it is rather indispensable in the case of real estate transactions.In the past,the study of the specific performance is mainly focused on the perspective of creditor's rights.But this article would in-depth study the specific performance of real estate sales contract from new perspectives,respectively from creditor's right,property right and enforcement.In order to make the analysis practical,this article referenced the judgments of real eastate sales contract.And those judgments fully exposed the gap between judicial practice and legal theory.First of all,in the aspect of creditor's right,the creditors who claim the right to specific performance should have the right basis and meet the applicable conditions,and can not be excluded.Secondly,in the aspect of the transfer mode of property right,there is a theoretical dispute between the theory of reasonable changes in property rights and the theory of claims proceduralism.By analyzing these two theories,it can be judged that the former can be harmonious in the internal system of the law and make up the theoretical defects in judicial practice.Also,the transaction security can achieve dynamic balance.Therefore,that should be the path of transfer mode of property right.What's more,to confirm that the type of judgment of specific performance is judgment which contains payment behavior,and that kind of judgment can be compulsory enforced.And in the enforcement process,it should be distinguished between replaceable obligation and irreplacable obligation.Finally,in order to solve the above-mentioned problems,the author tried to give suggestion to make improvement.The purpose of this article is to improve the development of the specific performance in real estate sales contracts with sufficient legal basis and jurisprudence basis.