| The “era of full decoration” has become a new trend in the development of the real estate market.However,the market entities are in a stage of constant compromise,both in the contract drafting and in the process of contract performance.From the perspective of contract formulation,the developer independently converted the decoration terms into a commissioned decoration contract to receive the decoration payment,and jointly signed the contract with the sales contract of the pending house.The validity of the contract is quite controversial.The research shows that China’s real estate market has gradually entered a “foam”,where government regulation is urgently needed.The price limit policy is one of the regulatory means to comply with the times.It means that the government restricts the transaction price of rough houses submitted for approval by real estate development enterprises.At the same time,the government does not limit the transaction price of decoration,but vigorously promotes the delivery of fine decoration houses.Therefore,in practice,developers use the way of signing a commissioned decoration contract in addition to the pre-sale contract of commercial housing to avoid the restriction of the price limit policy.Determining the effectiveness of the commissioned decoration contract has become the primary issue in the study of disputes between the commercial housing pre-sale contract and the commissioned decoration contract;In terms of contract performance,the entrusted decoration contract takes “fine decoration” as the decoration standard rather than the so-called “simple decoration”.In practice,the developer and the buyer have great differences on the pricing and delivery standards of fine decoration.At the same time,due to the definition of the relationship between the sales contract and the commissioned decoration contract,there is also controversy about whether the fine decoration expenses are part of the base of liquidated damages.With the receding of Covid-19 and the recovery of the market,many cities have adopted the gentle policy to reboot the market.Therefore,this paper mainly focuses on the real estate market that gradually developed before the pandemic,especially the price limit effect and judicial precedents between 2017 and 2021,with Shanghai,Guangzhou and other first-tier and second-tier cities as the main research objects.The first part of the article mainly introduces the background and current situation of the dispute.The development of “fine decoration housing” and the government regulation policies that conform to the development of the real estate market are the major background of the disputes between the pre-sale of commercial housing and the commissioned decoration contract.In this context,the “fine decoration split” formed by the separation of the decoration clauses from the pre-sale contract of commercial housing,and the “fine decoration binding” formed by the joint signing of the two contracts,have comprehensively analyzed the disputes in judicial practice,which mainly focus on the relationship and validity of the contract between the sale of the house and the entrusted decoration,as well as the decoration disputes during the performance of the contract.The second part of the article focuses on the first major problem of the contract for commissioned decoration of the house,namely,the relationship between the sale of the house and the contract for commissioned decoration and the determination of its effectiveness.This paper briefly explains the form and content of the commissioned decoration contract,and expounds the analysis of the validity of the commissioned decoration contract from a theoretical perspective,focusing on the logical interpretation of the validity and invalidity of the contract.Among the reasons for determining the invalidity of the entrusted decoration contract,“untrue expression of intention”,“violation of public interest” and “standard terms” are the most common.Practical precedents also include the cases where the parties apply for cancellation of the commissioned decoration contract,but there are only few.The third part of the article focuses on the second major problem of the contract for commissioned decoration of the house,namely,the decoration disputes during the performance of the contract for commissioned decoration of the house.During the performance of the contract,the format terms,the delivery of decoration,and the liability for breach of the contract for the entrusted decoration of the house are all the main disputes between the parties of the house purchase.In the fourth part of the article,the author puts forward some suggestions to realize the effective performance of the contract for the commissioned decoration of the house in advance,including standardizing the application of the standard terms of the contract,giving full play to the consensual effect of the contract for the commissioned decoration of the house in advance,improving the application of the price limit policy in the civil contract disputes,and repositioning the government regulation policy.A series of disputes such as decoration delivery do not lie in the decoration itself,but in the determination of the effectiveness of the entrusted decoration contract;The frequent occurrence of the effect of the commissioned decoration contract in practice is not the problem of the contract effect itself,but the problem of the contract effect caused by the application of the standard terms and other systems,and the new type of contract disputes arising under the government’s regulatory policies.Only by truly solving the crux of the real estate market can we implement the ideal contract effectiveness system.In conclusion,the effective performance of the contract is the common goal of both parties.Therefore,we should try our best to maintain the effectiveness of the contract,advocate the principle of good faith to perform rights and obligations,as well as seek other means to resolve existing disputes,so as to promote the better development of the era of fully decorated commercial housing. |
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