Research On Legal Issues Of Commercial Housing Pre-sale Contract

He commercial housing subscription contract refers to the contract signed by the commercial housing developer and the buyer on the preliminary purchase intention,which stipulates that the buyer shall pay the deposit called the commercial housing subscription fee or earnest money to the developer.After the house is officially sold,the buyer who signs the commercial housing subscription contract shall be given the priority to choose and purchase the commercial housing.The developer will notify the buyer to participate in the subscription after the house is sold The buyers of the activity sign the commercial housing sales contract.The purpose of the commercial housing subscription contract is to fix the purchase and sale intention of both parties and preliminarily determine the relevant purchase matters.There are other common forms of commercial housing subscription contract,including similar to letter of intent,letter of good faith,pre purchase letter and other types.In 2003,Article 4 and 5of the judicial interpretation of commercial housing sales contract(2003.7)confirmed the form of commercial housing subscription contract at the judicial interpretation level for the first time.At present,the general subscription contract in judicial practice is a legally binding reservation contract.However,due to the lack of relevant laws and judicial interpretations on the reservation contract in China,the judgment standards for the commercial housing subscription contract in judicial practice are inconsistent,and some courts have no clear determination on the nature of the commercial housing subscription contract and the effect of the contract,which leads to the existence of judgment opinions Big differences.In the process of pre-sale of commercial housing,the application of law is not uniform.How to protect the interests of the other party becomes an urgent problem in legislation when one party breaches the contract before the nature of the commercial housing subscription contract has no standard.In this paper,the comprehensive use of case analysis and theoretical analysis closely around the problems in practice,and strive to explore the type of judicial determination in such cases.This paper holds that the commercial housing subscription contract conforms to the relevant characteristics of the advance contract.The subscription money agreed in the commercial housing subscription contract belongs to the reservation contract innature.The subscription amount agreed by the parties in the commercial housing subscription contract does not conform to the constitutive requirements of the deposit,and shall not be recognized as the deposit.In order to ensure the transaction safety of both parties in the contract,the liability for breach of contract should not be included in the liability for contracting fault constituted by the obligation of "prior contract",and the liability for breach of contract should be applied to ensure the transaction safety of both parties.The commercial housing subscription contract is signed after both parties reach an agreement.It should abide by the principle of autonomy of will in the contract law.Both parties can agree on the corresponding liability for breach of contract in the subscription contract.In case of dispute,the judicial judgment shall determine the liability for breach of contract and the distribution of liability according to the agreement.