The Research On The Effectiveness Of Cooperative Real Estate Development Contract

Cooperative real estate development is an extremely general economic activity. Non item company cooperative development is actually a contract action, which is widely used in practice due to its relatively simple procedure. In the non item company cooperative development, the contract effectiveness has an important influence on the definition of the right and obligations of all the contracting parties, as well as the division of income. Current research on the effectiveness of cooperative development contract mainly focus on the influence of subject qualification, the contract land, guarantee clause and registration of land use rights on the effectiveness of contract. It is a question to be studied whether the behavior is appropriate that judicial practice uses peremptory norms theory to affirm the contract with a lack of subject qualifications is invalid, to correct the effectiveness of the contract that contribution with allocated land, to negate the nature and effectiveness of the contract with minimum guarantee clause and to affirm of the contract's effectiveness that the land use right is not registered. Above factors are discussed in this paper based on the analysis of the current problems. Reasonable views of cooperative real estate developments are also put forward in this paper.The introduction describes background, purpose and significance, innovation of writing and research summary. The first part analyzes the subject qualification's influence on the effectiveness of contracts. Firstly, definitions of status of legal entity restrictions and mandatory regulations to subject qualification are analyzed. Then, the disadvantage of existing theory of mandatory rules are pointed out with the method of case analysis, which is that court ignore the administrative color of the real estate law and regulations, and support the contract that breach the effective legal norms is invalid, resulting in the occurrence of malicious defense in judicial practice. Finally, the view draw on Japan's "performance stage" that according to the performance of the contract to distinguish the effectiveness of contract lacked of subject qualification is proposed.The second part analyzes the effectiveness of the contract that contribution with allocated land. Unfair competition is encouraged by the way of correcting effectiveness of the contract that contribution with allocated land in china, as a result of analyzing present situation of legislation on the effectiveness of the contract that contribution with allocated land and current judicial. Rationality is analyzed of the invalid contract that contribution with allocated land. At the same time, cases that restrictions shall be ordered to demolish, identify the fault between the parties, judgment of building are put forward with the method of case analysis to balance the interests of the parties in this part.The third part analyzes guarantee clause's influence on the effectiveness of the contract. Based on the analysis of nature of real estate contract for cooperative development, situation of both nature and effectiveness of the contract with minimum guarantee clause, question is put forward about the referee path of partnership adopted by the court. This paper argues that the effectiveness of the contract with minimum guarantee clause on the basis of judgment whether the parties of the contract have the suspicion of evading the law.The fourth part analyses the influence of the registration of land changing on the effectiveness of the contract. Through the research on the legislative evolution of land use right change registration in the real estate cooperative development contract and judicial practice, this article concludes that registration of the land use right changing can't influence the effectiveness of the contract. However, to protect the interests of all parties and to prevent the parties of the contract from evading the law, the old law still has the meaning of existence. So on the basis of analyzing the theoretical disputes and the legislative intent of the old law, this article puts forward that method of gave administrative or criminal punishment to the parties and affirms the terms of the evasion of the law invalid to protect the interests of the parties.