Analysis On The Effectiveness Of The Economical Housing Transfer Contrac

Affordable housing is a policy-based commercial housing organized by the government to sell to urban low-income people with small profits,which plays an important role in solving the housing difficulties of urban low-income families.The Measures for the Administration of Affordable Housing clearly stipulates that "the purchase of affordable housing for less than five years,shall not be directly traded".In practice,it is not uncommon for the parties to buy affordable housing for less than five years,which is transferred.How to determine the effectiveness of the transfer contract has become an unavoidable problem for the judge to hear such cases.In this regard,this paper plans to start with the current situation of disputes in judicial practice,according to the provisions of articles 153 and 215 of the Civil Code,to analyze the invalid theory of affordable housing transfer contract in the academic circle,and to refute it.First of all,in order to implement the principle of autonomy of private law and encourage market transactions,whether from item 5 of Article 52 of the original Contract Law to paragraph 1 of Article 153 of the Civil Code,the legal rank of mandatory norms that affect the effectiveness of the contract is limited to the level of "laws and administrative regulations".However,the access and exit mechanism stipulated in the Administrative Measures and the provisions of the listed trading period do not belong to the effectiveness of compulsory norms,and the main system of the original Ministry of Construction,the Development and Reform Commission,the Ministry of Supervision and other seven ministries and commissions.Therefore,the level of effectiveness should be administrative rules,not administrative regulations.Secondly,the social public interest clause not only has the function of contract effectiveness,but also carries a certain social ethical value.Therefore,when the relevant provisions of the Civil Code cannot judge the validity of the contract,the judge can invoke the public interest clause to determine the validity of the affordable housing transfer contract.At the same time,the restriction of the five-year circulation period set in Article 30 of the management Measures of affordable Housing is not directed to the social public interest,and the transfer contract is difficult to damage the social public interest.But it is important to note that the judge must uphold the social recognition of ethics,value and fairness and justice concept,combined with the specific case facts fully judgment reasoning,to realize the legal effect and social effect of organic unity,must not "social public interest" as "universal treasure box",and generalized to deny the effectiveness of the affordable housing transfer contract.Finally,the "civil code" of article 215 of the principle,points out that the affordable housing transfer contract shall belong to the contract,the contract itself only set between the parties the burden of creditor’s rights and constraints,its effectiveness should be based on the civil code of civil law and the effectiveness of the contract evaluation rules,not only because the contract signed in the limit of five years and deny the effectiveness of the contract,the safeguard function can be affordable by controlling the real right changes to safeguard and implementation.Moreover,the transfer of economic applicable room is only with five years fixed number of year limit,is not absolutely prohibited to transfer,the judge should fully implement and carry out the contract in the judicial practice legislation of value orientation,namely should be as far as possible under the premise of respect the parties of autonomy,sure the validity of the transfer contract,in order to better realize the safeguard function of economic applicable room.