Study On Perfection Of Legal System For Presale Real Estate In China

Presale system refers to real estate development enterprises are under construction and not yet completed or completed but does not have the conditions of delivery of housing sold to the buyer in advance, paid by the buyer of all or part of the Housing Fund, both sides according to the contract in determining the date of cash Housing Act. In this, advance finance capabilities to improve efficiency in the use of funds in the real estate market, optimize the allocation of resources real estate market, ensuring the housing supply, has become the main way of residential sales in China in recent years. With the implementation of the advance sale system, gradually showing its own drawbacks, and lack of legal systems and hysteresis, not valid on presale of specifications and supervision, unable to resist the advance risk, resulting in the relevant interest groups think the presale system should be eliminated. This article believe that the presale system should be acquired, but also from a legal perspective on the advance sale system of rational regulation, benefits while reducing risk. Perfect presale from four parts of this article discussed the legal system and to make recommendations.First part mainly elaborated housing advance legal system of important theory, including housing advance system and the housing advance legal system of concept, and housing advance system of features, and housing advance system of origin and development, and housing advance legal system in my continent area of legislation change and the extended, while also listed has for housing advance system save waste of two species views, and from advance system of pros and cons this two aspects talking about on the disputed of views.Second part sets out the pre-systems in other countries and regions of the current legislation, focuses on Germany and the United States, China, Hong Kong, China Taiwan area housing presale legal system. In these countries and regions, longer development times, legislation relative presale system sound, this article is for the more advanced parts of the law for summary and conclusion. Presale system in China’s mainland a short development time, the lack of legislative experience, so you can fully experience of other countries and regions in more mature examples, combined with China’s actual conditions, seeking perfection presale shortcuts of the legal system in China’s mainland.Third part presale for the third section describes our current problems in the legal system, by analyzing the phenomenon exists in the practice, trying to map out the legal aspects are missing. Believes that our presale of this article there are five main areas of deficiencies in the legal system:Firstly, An information disclosure system is too simple in general terms, subject, content, forms of information disclosure and legal responsibility did not make clear provision, and real estate transaction information mainly from developers to purchase the party gets in, which usually affect the judgment to purchase the party, caused by asymmetric information infringement occurred.Secondly, the lack of a reasonable real estate market access and exit mechanism, which determines the entry qualifications and practicing real estate market bottom line, is of great significance for the maintenance of healthy competition in the market order, and the present admission system is too lax, exit mechanism is almost blank, resulting in disorderly mess of real estate market, the market could not be lawful, reasonable use of resources.Third, advance registration system is lagging behind. Notice registration guarantees of object is purchase party in future achieved its ownership of interests, that with achieved fundamental purposes of right closely, and existing legal in the on notice registration system of main, and effectiveness are is not clear provides, and advance contract registration record system failed to close convergence, this led to notice registration system does not since to practical of guarantees effect, practice in the still exists a room more sold, and sold mortgage of situations. Next, presale inadequate regulatory systems. Advance in widely used in housing construction, directly affect the contract attainment and the quality of implementation, the current regulatory system is too formal, and not reflected in the legal qualification of the regulatory body, that paragraph in presale regulation almost useless, developers to abuse and advance still could not be regulated.Finally, the breach of contract legal relief system has flaws. As the system of relief afterwards, both parties to the contract played a guiding role, and safeguard the legitimate rights and interests of legal basis. Absorbed within the existing law on liability for compensation amount, as well as advance risk guarantee fund did not make reasonable provision, therefore neither acts restricting developers, there is no guarantee that legitimate interests have been violated will be able to achieve to purchase the party activist.The fifth part in this article focuses in part, namely, the aforementioned issues put forward their own proposals. First, there should be sound information disclosure system, clear disclosure of information content, forms, specific implementation of each subject in the pre-sale process responsibilities and obligations in all aspects, and information disclosure is not due expressly the legal responsibility lies with the principal, presale information to ensure that full disclosure of the circumstances.Secondly, the reasonable market access and exit mechanism should be established. Minor adjustments through the practice of real estate development enterprise requirements and pre conditions, eligibility criteria for rational planning to enter the market, and on the exit mechanism of real estate development enterprise make special provisions; so as to regulate the real estate market in overall quality, establish a good order of market competition.Thirdly, should improve the advance registration system. On the basis of existing laws and further clarifying the subject of advance notice registration, seniority protection force and advance registration obligation person to dispose of the effectiveness of content and interface optimization and contract registration system, the statutory obligations and conventions the right to reasonable combination of effective guarantees for advance registration purpose.The forth part, it should sound be advance monitoring system. Paragraph in presale in the regulatory system should be legal clarity in advance of regulatory bodies, regulatory content and inappropriate supervision of liabilities, with pre-sale regulatory body should have the professionalism, independence and equality, specific qualifying eligible for pre-sale regulatory body, the establishment of specialized applications for pre-sale consents involving regulators.The last part should be perfecting the legal relief system after the sale. In this system, should make it more injurious situation in liquidated damages to compensate for legal gap, and appropriately adjust the compensation standards, increasing illegal costs. At the same time advance risk guarantee fund system should be established, achieve the sale of rational allocation of risk; mitigate the risk burden to purchase.