Presale Commercial Housing Rights Conflict And Resolution

Commodity house opens to booking system of the initial rise in Hong Kong,commonly known as "buy flower",because its accelerating the debt-collection,shorten investment cycle,lower development costs,speed up the important role of market development,more and more real estate development enterprises choose commodity house opens to booking as a way of commercial housing sales,real estate development enterprises to repatriate funds as soon as possible,often after the commodity house opens to booking licence,begin to pre-sale housing,commercial housing sales contract signed with commercial housing purchase in advance,As the subject matter of the commodity house sales contract signed by the commodity house pre-purchaser and the real estate development enterprise is the period house under construction,which has not yet been built and which has not obtained the certificate of ownership of the commodity house,So the same open to booking commodity house tend to involve more than one interest subjects,mainly real estate development enterprises,construction engineering contractor,bank,commercial housing purchased,such as real estate development enterprises is the sponsor of the commodity house opens to booking project,is open to booking commodity house sold its enjoy the interests of the contractor for client did not pay the payment within the grace period to pay and enjoy the construction engineering the priority of compensation with respect to price,bank of real estate development enterprises to open to booking commodity house mortgage to the bank and enjoy the mortgage right,commercial housing purchased people buy pre-sale commercial housing commercial housing purchased human rights.Through network in China the written judgment,law cases,families first legal professional database,such as keywords retrieval,set forth on the open to booking commodity house rights conflict cases,the data sorting,drawing form,summary analysis,on the basis of found rights conflict on the pre-sale commercial housing mainly has the following three: first,the construction of the priority of compensation with respect to which the construction price is conflict with the mortgage,the law of the People's Republic of China contract law "article 286 while the priority of compensation with respect to the construction project price,but the property is not clear,this profession there are three main theories: legal mortgage lien said,referring to priority said.Court in the judicial practice construction engineering the priority of compensation with respect to conflict with the mortgage price based primarily on the supreme people's court about construction project cost of approval of the priority of compensation with priority given to the contractor project payment prior to the effectiveness of the mortgage right,but for the scope of the contractor have the priority of repayment,the calculate time is controversial,in addition to the judicial practice in the real estate development enterprises to obtain bank loans often require the contractor to give up construction engineering the promise of the priority of compensation with respect to price,the validity of the theory for the give up commitment may be debatable,there are four main approach in practice: give up behavior effectively;Renunciation is effective but not worldly;The act of giving up is invalid;To abandon the principle of invalid behavior,effective as an exception.Secondly,the conflict between the right of commercial house pre-purchaser and the right of priority compensation of construction project price;The nature and effectiveness of the rights of commercial house pre-purchasers are not clearly stipulated in Chinese laws.According to article 20 of the property law of the People's Republic of China,commercial house pre-purchasers enjoy the property right expectation right after the advance notice registration,and the property right expectation right of commercial house pre-purchasers is prior to the compensation right of the construction project price.Although China as early as 2007,established the system of advance notice registration,but in practice few understand the system and put into practice,to protect the interests of the commercial housing purchased people living,court review in commercial housing purchased may refer if people enjoy the real right are looking forward to when the supreme people's court of the people's court for execution objection and reconsideration cases provisions on some issues of article 27,28 and article 29,comply with the provisions of the commercial housing purchased people rights granted prior to the effectiveness of the construction engineering the priority of compensation with respect to price,but the conflict processing rules lack of rationality and legitimacy;Thirdly,the conflicts between the rights of the commercial house pre-purchaser and the mortgage right.According to the sequence of the commercial house sales contract and the establishment of the mortgage right,and whether the commercial house pre-purchaser is registered in advance,the priority of the commercial house pre-purchaser and the mortgage right is different.In the open to booking commodity house of three main rights conflict,based on the analysis of the causes,conflict handling rules put forward solving the right conflicts in the pre-sale commercial housing is the key to improve the rights of transparency,in adhere to the "right to life is greater than the franchise" under the general principle,building construction project price the priority of compensation with respect to the registration system,on the basis of the system balance the interests of the open to booking commodity house on the right subject,in order to improve the pre-sale commercial housing rights conflict on processing system,promote the benign development of the real estate market in China.