预售商品房转让若干法律问题研究

发布时间：2018-03-05 22:04

本文选题：预售商品房转让　切入点：法律属性　出处：《内蒙古大学》2013年硕士论文　论文类型：学位论文

【摘要】：在我国,商品房分为现房和期房两种。期房,又称预售商品房,是指已被权力机关许可预售,但尚未建成验收的商品房。据房地产行业内专家称,从商品房预售到最终交房一般周期为两年,较长的时间空档促使产生了较大的价值差额,可预见的经济利益进一步促进了预售商品房的流转。因此,预售商品房作为一种特殊的商品,在房地产市场进行交易所面临的问题已成为不可回避的重大现实问题。为此,本文从债法的传统理论出发,结合我国合同法的相关规定,对预售商品房转让相关法律问题进行了全面的分析和讨论。具体来看,本论文正文共由四部分组成。第一部分,预售商品房转让的法律属性分析。通过分析具体案例,引出理论界对预售商品房转让行为性质之争论,并经过论证,得出预售商品房转让合同属于债的转移行为的结论；同时,根据《合同法》对债的转移方式的规定,从预购人履行对价支付义务的情况出发,确定了预售商品房转让只具有债权转让和债权债务的概括转移两种情形。第二部分,预售商品房转让合同的订立。充分分析了商品房预售合同效力、禁止转让条款、预售人的同意、转让合同的通知对预售商品房转让合同的影响,确定只有商品房预售合同的效力是影响转让合同订立的前提；并根据债权转让通知的一般理论,从主体、性质、方式、对象方面对预售商品房转让合同的通知进行了重点论述。第三部分,预售商品房转让合同的效力分析。通过案例对预售商品房转让合同的效力进行法理分析,充分论证转让合同有效说的可行性；同时,针对预售商品房实际交易过程中普遍存在的三种交易形式,即预购协议形式、附生效条件买卖合同形式和合同转让形式,充分分析其对预售商品房转让合同的影响,得出只有以合同转让方式出让预售商品房才会对债权转让合同的效力产生影响的结论。第四部分,预售商品房转让中的登记问题。在我国,不动产物权变动采用登记主义。通过对预告登记和商品房预售合同备案登记的分析,充分论证出预售商品房的预告登记和商品房预售合同的备案登记均不会对转让合同产生影响。
[Abstract]:In our country, commercial housing is divided into two types: present housing and futures housing. Futures housing, also known as pre-sale commercial housing, refers to commercial housing that has been approved for sale by the authorities but has not yet been completed for acceptance. According to experts in the real estate industry, The general cycle from pre-sale to final delivery of commercial housing is two years. The long gap in time leads to a large difference in value, and foreseeable economic benefits further promote the circulation of pre-sold commercial housing. As a special commodity, pre-sale commercial housing has become an unavoidable and important practical problem in the real estate market. Therefore, based on the traditional theory of debt law and the relevant provisions of contract law of our country, this paper makes a comprehensive analysis and discussion on the legal issues related to the transfer of pre-sale commercial housing. Specifically, the text of this paper is composed of four parts. The first part is the analysis of the legal attributes of the pre-sale commercial housing transfer. Through the analysis of specific cases, it leads to the theoretical debate on the nature of the pre-sale commercial housing transfer behavior, and has been demonstrated. At the same time, according to the provisions of the contract Law of contract Law on the transfer of debt, starting from the situation that the buyer performs the obligation to pay for consideration, the conclusion is drawn that the transfer contract of commercial housing in advance belongs to the transfer behavior of debt, and at the same time, according to the provisions of contract Law, It is determined that the pre-sale commercial housing transfer only has two cases: creditor's rights transfer and debt transfer. The second part, the conclusion of the pre-sale commercial housing transfer contract. It fully analyzes the effectiveness of the commercial housing pre-sale contract, the prohibition of the transfer clause, the consent of the pre-seller, and the effect of the notice of the transfer contract on the pre-sale commercial housing transfer contract. Determining the validity of the pre-sale contract of commercial housing is the premise of influencing the conclusion of the contract of transfer, and according to the general theory of the notice of assignment of creditor's rights, the paper focuses on the notice of the contract of transfer of pre-sale commercial house from the aspects of subject, nature, mode and object. The third part, the validity analysis of the contract of pre-sale commercial housing transfer. Through the case of the transfer of commercial housing contract validity of the legal analysis, fully demonstrate the feasibility of the transfer contract effectively said at the same time, In view of the three kinds of transaction forms that exist in the actual transaction process of pre-sale commercial housing, that is, the form of pre-purchase agreement, the form of sale contract with effective conditions and the form of contract transfer, this paper fully analyzes its influence on the contract of transfer of pre-sale commercial house. It comes to the conclusion that only the sale of pre-sale commercial housing by contract transfer will affect the validity of the contract of transfer of creditor's rights. Part 4th, the registration problem in the transfer of pre-sale commercial housing. In our country, the real property right change adopts the registration doctrine. Through the analysis of the advance notice registration and the record registration of the commercial housing pre-sale contract, It is fully demonstrated that the advance registration of commercial housing and the registration of pre-sale contract will not affect the contract of transfer.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.29

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