Research On The Legal Issues Of Housing Pre-contract

In order to grasp the fleeting opportunities of commercial transactions in the fast-changing commercial housing market and complete the commercial housing sales efficiently,real estate development companies will sell houses in advance by signing purchase contracts,house purchase agreements,purchase intentions and other commercial housing pre-contracts so that they can reduce the risk of transactions,transfer the development costs to consumers,and maximize the benefits eventually.However,with the popularization and uses of the per-contract in the real estate sales industry,there are a large number of pre-contract disputes.According to The Supreme People's court,In the Article 2 of The Interpretation of Several Issues Concerning the Law Applied to Hearing the Cases of the Disputes over Commercial Housing Sales Contracts,the word "pre-contract" has appeared for the first time,and it is usually regarded as the first formal admission that a pre-contract is an independent contract.Articles 4 and 5 of the The Interpretation of Several Issues Concerning the Law Applied to Hearing the Cases of the Disputes over Commercial Housing Sales Contracts are generally regarded as the provisions concerning the liability for the breach of pre-contract.Due to the scarcity of the provisions about pre-contract and these provisions are too principled,there are often divergences in judicial practice in dealing with such disputes.This article compares and analyzes the classic cases of the pre-contract disputes of commercial housing sales recommended by www.pkulaw.cn.which is founded by Peking University Law School.It is found that in the judicial practice.there are divergences in the admission of the pre-contract for commercial housing sales,different opinions on the effectiveness of the pre-contract,and realities of inconsistent standards in the form of liability for the breach of pre-contract.In this article,there are several points as follows.First of all,we should approve the independent status of the pre-contract from the legislation,specify the criteria for the pre-contract,improve the relevant judicial interpretations as well as other aspects,and help the judicial practice accurately solve the qualitative problem of the commercial housing pre-contract.Second,the Content decision theory should be adopted to determine the effectiveness of the pre-contract for the commercial housing sales,and if this pre-contract contains the main content of the contract,it may create an obligation to conclude the contract,otherwise it only creates the obligation of well-meaning negotiation.Meanwhile,this article also confirms the validity of the pre-contract for commercial housing sales which is signed under the precondition of no pre-sale license.Last but not the least,this article believes that the relevant provisions of judicial interpretation on the liability for the breach of pre-contract for the commercial housing sales should be detailed.For example,it should stipulate the situations that respectively apply to the continuation of the performance,the determination of the scope of damages depends on the reliance interest,and the fine of deposit.Only by perfecting the relevant norms of the form of liability for the breach of pre-contract for the commercial housing sales,it is possible to restrict the discretion of the judge as far as possible so that the same cases can be sentenced equally.This article combines the research theory with the actual research,closely follows the actual situation of the judiciary,researches the common problems in the pre-contract disputes of commercial housing sales,and puts forward its own views.Hoping this suggestion can contribute a little bit to the practice.