Research On The Validity Of The Contract For The Pre-sale Of Commercial Housing Under The Pre-sale Without Certificate

The commercial housing pre-sale is permitted in our country,so the pre-sale license,as the proof that the real estate developer has the pre-sale qualification,has the key role in the judicial practice to decide the validity of the commercial housing pre-sale contract.But a large number of judicial practice cases show that the judgment made according to the current relevant judicial interpretation seems to aggravate the imbalance of the interests of real estate developers and buyers,resulting in a greater degree of unfairness.Well,whether Article 2 of the Supreme Court on the interpretation of certain issues concerning the application of laws applicable to commercial housing sales contracts effectively responds to the mandatory provisions of Article 45 of the Real Estate Management Law and the provisions of Article 5 and Article 6 of the "measures for the Administration of Commodity Housing Pre-Sale",Whether the mandatory norms in the first two laws and administrative regulations on pre-sale licenses belong to the mandatory norms of validity in the classification of compulsory norms by scholars,and whether it is necessary and reasonable to directly determine the invalidity of contracts in accordance with the mandatory norms,It is the main content of this paper whether the real estate developers undefined unlicensed pre-sale behavior can be prevented and the legitimate rights and interests of the buyers in the legal relationship of pre-sale can be effectively protected.This article is mainly through the method of case study to sort out the problems in judicial practice,combined with the impact of mandatory norms on the effectiveness of the contract analysis of the pre-sale license did not obtain the validity of the pre-sale contract and responsibility identification.The first chapter analyzes the legal nature of the pre-sale license in the pre-sale of commercial housing,and then analyzes the effect of the pre-sale license on the validity of the pre-sale contract.The second chapter focuses on the judgment of unlicensed pre-sale cases in judicial practice,through the analysis of the rules of confirmation of the validity of pre-sale contracts in judicial practice,and the determination of contract effectiveness and responsibility under the guidance of "interpretation of the purchase and sale of commercial housing".It is pointed out that whether the acquisition of the pre-sale license is directly regarded as the key to the determination of the presale contract is not in accordance with the purpose of the presale license setting,and the burden of proof of the buyer is excessively aggravated in thedetermination of the liability.The recognized amount of compensation loss is too small to compensate for the real loss of buyers.The third chapter puts forward specific suggestions to improve the problems found in the second chapter.Including adjustment of Article 2 of the 《Commercial Housing sales interpretation》 in the trial process of unlicensed pre-sale cases,changing the recognition rules which used to place too much emphasis on the importance of pre-sale permits,and moving from superficial recognition to substantive identification.Only when the protection contract is realized,the pre-sale contract is considered to be effective in principle,and the contract is invalid only if it seriously damages the social and public interests.And in the cognizance of liability,it is no longer simply to think that the return of the purchase money and interest is "restitution" as stipulated in Article 58 of the Contract Law,but to take into account the actual losses caused by other factors leading to the buyers being found to be invalid because of the contract.In the case of negating the validity of the contract,the buyer can make up for the loss.