On The Impact Of Pre-sale Permits On The Validity Of Pre-sale Contracts For Commercial Housing

The implementation of the pre-sale permit system for commercial housing has an important impact on the development of China’s real estate market.Among them,the acquisition of pre-sale licenses plays an important role in judicial practice in the validity of pre-sale contracts.However,a large number of cases show that the adjudicator’s judgment on the invalidity of the pre-sale contract based on judicial interpretations has made the position of the originally unopposed home buyers more unbalanced,and it is also inconsistent with the purpose of legal norms.At this stage,it is reasonable for the court to judge the validity of a contract that violates the mandatory provisions of article 45,paragraph 1,item 4 of the Urban Real Estate Management Law on the basis of article 2 of the Interpretation of contracts for the sale and purchase of commercial housing,and it is worth considering whether it is reasonable.Second,whether the distinction between types of mandatory provisions conforms to the logic of legal argument.Whether the violation of mandatory provisions to negate the validity of the pre-sale contract can achieve the legislative purpose and safeguard the interests of home buyers is worth pondering.Through case analysis,the focus of the dispute in determining the validity of a pre-sale contract without a pre-sale license is derived,and the method of judging the validity of a contract without a pre-sale license is summarized in combination with the impact of mandatory provisions on the validity of the contract,and then the pre-sale contract without a pre-sale license is concluded to be valid.From the perspective of the purpose of legal norms,it is unreasonable to determine the nature of article 45,paragraph 1,item 4 of the Urban Real Estate Management Law,and its purpose of establishment is to safeguard the interests of home buyers,and it is unreasonable to judge the contract invalid according to article 2 of the Interpretation of the Contract for the Sale and Purchase of Commercial Housing.Through the analysis of the pre-sale control system of the Administrative Law,and from the perspective of the impact of Article 2 of the Interpretation of contracts for the sale and purchase of commercial housing on the pre-sale contract,it is concluded that a contract that has not obtained a pre-sale license should be found to be valid rather than invalid based on the application of the method of measuring interests and the principle of good faith and proportionality.The pre-sale of commercial housing has gradually become the main way for people to purchase commercial housing,so it is necessary to improve the pre-sale system of commercial housing,distinguish between mandatory provisions,and analyze the normative nature of article 45,paragraph 1,item 4 of the Urban Real Estate Management Law and the reasonableness of the pre-sale contract under unlicensed pre-sale.Finally,I hope that the validity of the pre-sale contract for commercial housing can attract the attention of the academic community through the study of this thesis,and I hope that this issue can be improved through legislation in the future.