| According to Property Law of China,“consent of creditor’s right+property publication” are essential for acquisition of real estate.Due to the commodity house presale system,in real estate transaction,80~90% of commodity house transactions take place with the “consent of creditor’s right” between the buyer and property developer,i.e.the subject matter does not physically exist when the sale contract is signed and the payment is actually made and the transaction object is only a property that will be acquired at a fixed date in the future.In order for the buyer to acquire the property right of the subject matter through “property publication”,the property developer must have completed construction of the property and initial registration of real estate right and also the buyer needs the developer’s assistance in real estate transfer registration.It is usually years or even decades from “consent of creditor’s right” to “property publication”.IN this process,the real estate buyer retains the right to the subject matter only in the form of creditor’s right and is only entitled to request the property developer to deliver the subject matter and request the registration of property ownership transfer,while the proper developer still retains the property right of the subject m atter.[1] Once the monetary creditor’s right between the property developer and any third party is validated by a legal document and is in the process of enforcement,the developer must use all his properties,creditor’s rights or any other assets to fulfill the legally adjudged obligations and the court of law may impose enforcement over the assets registered under the name of the developer.However,the real estate buyer has already fulfilled his contractual obligations and the property right will defin itely be transferred to his name.Now,the appearance of right does not truthfully reflect the real state of the right,thus said enforcement will probably encroach on the legal right of the real estate buyer.Therefore,the real estate buyer’s right must be put under special protection.By courtesy of the theory of expectant right,the real estate buyer is granted the right to independently request the expectant right to the property.By offering better protection for real estate buyer ’s right and using more diverse remedies,the value of expectant right to the property can be maximized and more approaches are available to obtain possible judicial remedies.In terms of protection for real estate buyer’s rights,Supreme People’s Court has officially recognized the real estate buyer’s expectant right to the property through judicial interpretation and has detailed expounded the essential elements of the right,to specify the application scope of real estate buyer’s expectant right to the property.However,this still fails to meet the actual needs in real economic life.Firstly,this paper explains the basic theory of expectant right and elaborates various theses related to real estate buyer’s expectant right to the property,thus laying the theoretical basis for the follow-up discussions.Secondly,by examining China’s current commodity house presale system and property ownership transfer methods,this paper offers a systematic justification for the necessity of protecting real estate buyer’s expectant right to the property.Thirdly,by analyzing the various types and composition of real estate buyer’s expectant right to the property,this paper comprehensively analyzes the problems existing in the current system.Lastly,by analyzing the rules that are used to determine the validity of rights when there is conflict between real estate buyer’s expectant right to the property and other rights,this paper elaborates on reconstruction of the current system.The thesis in this paper is to preliminarily envision a mo del for reconstructing the system of real estate buyer’s expectant right to the property,so as to effectively protect the rights of real estate buyers and enhance their ability to prevent risks. |
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