Research On The Validity Of Pre-sale Contract Under The Pre-sale License System

From an interest point of view,although the interests protected by Article 45,item 4,of the Urban Real Estate Management Act are usually intended to ensure the completion of the construction project and the interests of the buyers,such interests are not of a typical nature.The provisions of the law will pay more attention to the benefit protection of the validity of the pre-sale contract,because the emphasis on the contract interest is of great significance to the protection of the market order.The specific content of the provisions of the Urban Real Estate Management Law,Sufficient to achieve the normative purpose of article 45,paragraph 1,of the Urban Real Estate Management Act;On the contrary,the invalid consequences arrangement is contrary to the purpose of a specific norm.Thus,article 45 of the Urban Real Estate Management Act is violated.The provisions of paragraph 4 are not sufficient to achieve the legislative purpose set out in article 52,paragraph 5,of contract Law.A pre-sale contract without a pre-sale license should not negate the validity of the contract.Article 2 of the interpretation of Commercial Housing disputes provides that although it has been alleviated,its conclusion is still not in line with the legislative purpose of the object of interpretation.A real estate development enterprise fails to register with the real estate administration department of the people's government at or above the county level in accordance with Article 45(4)of the Urban Real Estate Administration Law.Therefore,if a pre-sale permit for commercial housing is not obtained,the development enterprise enters the market of real estate transactions and enters into a pre-sale contract with the counterparty to the contract.The contract does not enter into force after approval,belongs to the breach of administrative provisions,the contract is not affected by illegality.Therefore,the provisions of article 2 of the Commercial Housing dispute interpretation should be adjusted appropriately.This paper is divided into four parts.The first part is to discover the cases existing in the judicial practice,and the result of the judgment is contrary to the provisions of Article 2 of the Commercial Housing dispute interpretation,so the core issues of this paper are discussed and the reasons are analyzed.After analyzing the case and summarizing the same case,and referring to the judge's decision to analyze whether the pre-sale contract of commercial housing is valid or invalid,which situation can better protect the interests of buyers.The second part is to determine the legal nature of the pre-sale license of commercial housing,which lays the groundwork for the judgment of the validity of the pre-sale contract below.The third part starts with the basic method of judging the validity of the pre-sale contract.Hope to provide certain help for the confirmation of the validity of the pre-sale contract.Since the judicial interpretation directly defines the validity of the pre-sale contract under specific conditions as null and void,the fourth part is intended for legislative purposes.The explanation of commercial housing dispute itself and the buyer's interests to prove that the contract without a pre-sale license is just as reasonable as it is found to be valid.Based on the relationship between the validity of the commercial housing pre-sale contract and all the relevant provisions,this paper discusses the validity of the commercial housing pre-sale contract in China,and clarifies the defects of article 2 of the current legal system,that is,the interpretation of the Commercial Housing dispute.It is hoped that the judicial interpretation can be improved by legislation in the future.