On The Cancellation Of The Commercial Housing Sales Contract During The Pre-sealed Period

In commercial housing sales,the most common way of transaction is that the buyer pays for the house by mortgage loans from the bank,while the developer provides stage guarantee for the buyer’s loan.Since it takes time to fulfill a contract,during this process,if the buyer’s financial situation gets worse,other creditors may apply for a pre-seizure of the commercial house.As a result,if the buyer doesn’t comply with his repayment obligation required by the guaranteed loan contract and causes the developer to undertake guarantee responsibilities,whether can the developer exercise his right of contract rescission,and what are the related legal effects after rescission? As to this,courts in various areas have different opinions.In regard to whether the developer could terminate the real estate sales contract during pre-seizure,the courts holding positive opinions believe that pre-seizure can not limit the developer to terminate the contract,including legal termination and agreed termination;while the courts holding negative opinions believe that pre-seizure indicates the obligatory right enjoyed by the attached person based on an effective house purchase and sale contract,once this right of claim is pre-seizured,both sides of the contract shall not terminate the contract via exercising the right of cancellation agreed in the contract or consensus to reach termination contract.The main reason resulting in such dispute is due to different understanding for subject matter of pre-seizure execution and pre-seizure effect.The subject matter of pre-seizure execution shall be the rights of property available for execution obtained by the person subject to enforcement during contract performance.And the rights of property is affected by the performance extent of real estate sales contract,while the performance of real estate sales contract is also influenced by other uncertain factors beyond the influence of the house buyer.As a coercive measure,pre-seizure could only limit the person subject to enforcement to execute abandonment,transfer,establishment of encumbrance and other act of disposition for the contractual rights enjoyed,it is not of the function of eliminating the uncertain factors during performance of contract,as a result,except the person subject to enforcement,it could not limit the developer to exercise rescission right of contract based on good cause.After the real estate sales contract is terminated,the upcoming problem is on whether the developer could withstand the execution hereby.Dispute on the problemmainly focuses on the understand and application of Clause 2,Article 26 of Provisions on Objection to Execution and Review as well as the rights confrontation between the developer and house buyer.In regard to the understanding for Clause 2,Article 26 of Provisions on Objection to Execution and Review,it is necessary to combine the context of the judicial interpretation,and make interpretation from the perspective of system and literary contents.Beside,from Article 24,25 of this provision,it can be seen that the premise of applicable to Clause 2,Article 26 shall be based on the situation of which the ownership can not be determined in Article 25 of Provisions on Objection to Execution and Review,and the commodity house involved in this case does not belong to this situation.As for the rights confrontation between the developer and the house buyer,since mode of real right changing is adopted in China for the real estate real right change generated based on legal act,and strict distinction between real right and obligatory right is also acknowledged,therefore,before processing real right registration,the real right enjoyed by the developer for the commodity house shall not be restricted due to the contract for credit,and what enjoyed by the house buyer is only the right of obligatory claim generated based on the contract for credit.After the real estate sales contract is terminated,one more important matter is to refund the house payment.In the litigation of termination of real estate sales contract,in addition to that the developer shall refund the house payment to the house buyer,the house buyer shall also pay the funds paid by the developer in advance as well as related liquidated damages or interests,litigation cost and other losses,which shall conform to the constitutive elements of the right of legal set-off.The punishment prohibition effect of pre-seizure decides that the house buyer as the person subject to enforcement shall not implement consensual set-off with the developer,but except the person subject to enforcement,it can not prohibit the developer from exercising the right of legal set-off based on the unilateral willingness.