商品房认购书纠纷案分析

发布时间：2018-05-18 01:04

本文选题：商品房认购书 + 性质　；参考：《湖南大学》2012年硕士论文

【摘要】：商品房认购书广泛存在于商品房交易过程中，由于商品房价格波动幅度大，加上商品房认购书的法律性质、效力和责任等界定模糊，近些年来全国各地发生了大量的认购书纠纷。俞某与福建华辰房地产有限公司、魏某商品房买卖（预约）合同纠纷案，即为此类典型案件。本案主要有五个争议焦点：一是商品房认购书属于何种法律性质；二是商品房认购书是否有效；三是原告主张不安抗辩权的理由是否成立；四是华辰公司应否承担违约责任；五是商品房认购书的解除产生何种效力。从我国现实情况看，，商品房认购书本质上属于预约合同。本案中的《商铺认购书》属于内部认购书，由于被告在起诉前取得了商品房预售许可证，根据《关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》第2条规定，应认定合法有效。本案原告认为其暂缓支付订金余款500万元的行为，属于行使不安抗辩权。由于原告无证据证明其履行了通知义务，且以案外人违约为由在本案中主张不安抗辩权，违反了合同相对性原则，因此，一审法院和二审法院对原告主张不予支持的判决是正确的。至于商品房认购书的法律责任，应根据具体情况分别认定为违约责任或者缔约过失责任。由于原告不安抗辩权的主张不成立，因此一审法院和二审法院均认定其先行违约，被告不承担违约责任。此项判决值得商榷。虽然原告构成先行违约，且被告的履行期限尚未届至，但是在原告支付绝大部分订金后，被告未曾履行通知义务，而将商铺售予他人，违反了诚实信用原则。因此被告应构成默示预期违约。由于诉争商铺已售予他人，一审法院判决解除《商铺认购书》。关于合同法定解除的法律效力，一般认为非继续性合同有溯及力，继续性合同无溯及力。商品房认购书作为非继续性合同，原则上有溯及力，因此被告应返还其收受的订金及利息。
[Abstract]:The acceptance of commercial housing widely exists in the course of commercial housing transactions, due to the large fluctuations in the price of commercial housing, coupled with the legal nature, effectiveness and responsibility of the purchase of commercial housing is ambiguous. In recent years, there have been a large number of disputes over the purchase of books throughout the country. Yu and Fujian Huachen Real Estate Co., Ltd., Weimou commercial housing sales (reservation) contract dispute, that is, such a typical case. There are five main points of controversy in this case: first, what kind of legal nature of the commercial house admission; second, whether the commercial house acceptance is effective; third, whether the reasons why the plaintiff claims the right of restless defense; fourth, whether the Huachen company should bear the responsibility for breach of contract; Fifth, the release of the purchase of commercial housing to produce what kind of effect. From the reality of our country, the purchase of commercial housing is essentially an appointment contract. In this case, the "Shop admission" is an internal admission. Since the defendant obtained a pre-sale permit for commercial housing before the prosecution, according to Article 2 of the interpretation of certain issues applicable to the trial of disputes concerning the contract for the purchase and sale of commercial housing, It shall be recognized as lawful and effective. In this case, the plaintiff held that the suspension of the payment of the rest of the deposit of 5 million yuan was an exercise of the right of uneasiness. As the plaintiff has no evidence to prove that it has fulfilled its obligation of notification, and has violated the principle of relativity of contract by asserting the right of uneasy defense in this case on the ground of breach of contract by an outsider in the case, The court of first instance and the court of second instance were correct in their decision not to support the plaintiff's claim. As for the legal liability of commercial house purchase, it should be regarded as liability for breach of contract or fault in contracting according to specific circumstances. As the plaintiff's claim of the right of disquiet defense was not established, the court of first instance and the court of second instance found that the defendant was in advance of breach of contract, and the defendant was not liable for breach of contract. The verdict is open to question. Although the plaintiff constitutes a breach of contract in advance and the time limit of performance of the defendant has not yet reached, but after the plaintiff paid most of the deposit, the defendant did not perform the obligation of notice, and sold the shop to others, which violated the principle of good faith. The defendant should therefore constitute an implied anticipatory breach of contract. The court of first instance decided to lift the book because of the lawsuit that the shop had been sold to others. As to the legal effect of the legal rescission of the contract, it is generally considered that the non-continuous contract has retroactive effect and the continuing contract has no retroactive effect. As a non-continuous contract, the defendant should return the deposit and interest received by the defendant.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6

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