房产交易合同解除案法律问题研究

发布时间：2019-03-21 09:09

【摘要】：摘要：冯某与刘某基于房产交易发生纠纷,争议焦点：交易合同履行说与交易合同解除说。房产交易合同履行说是指继续履行合同。其适法理由为《合同法》第107条的规定。实施困境在于不动产物权过户不能实现。房产交易解除说是指解除双方当事人的合同。合同解除的效力存在五种学说：直接效果说、间接效果说、折中说、债务关系转换说、清算了结说。各国采用不同的合同解除效力学说将使合同解除后的损害赔偿范围不同,我国采用的是“修正的直接效果说”。我国理论界有关合同解除后损害赔偿的范围形成了三种主张。房产交易合同解除说依据合同自由原则、保护当事人权益原则、鼓励交易原则等理论设立。房产交易合同解除的类型有约定解除和法定解除。法定解除包括任意解除、不可抗力解除、违约解除和预期违约解除。交易合同解除后会产生损害赔偿,不同类型的合同解除的损害赔偿的范围不同。本案应坚持合同解除说,合同解除后损害赔偿应包含可得利益,可得利益应限制在合理的范围之内并按一定的标准进行计算。建议消除交易合同履行说的法律障碍、确立房产评估机构的法定性、树立房产交易的市场风险意识。
[Abstract]:Abstract: Feng some dispute with Liu some based on the real estate trade dispute, the dispute focus: the transaction contract performance said that the transaction contract is released. The performance of the real estate trade contract refers to the continued performance of the contract. The reason for its adaptation is the provisions of Article 107 of the Contract Law. The implementation of the dilemma is that the transfer of real property right cannot be realized. The release of the house-producing transaction means the dissolution of the contract of the parties. There are five theories in the effect of the cancellation of the contract: the direct effect said, the indirect effect said, the trade-off said, the debt relationship conversion said, the liquidation and the settlement said. The use of different contracts to release the doctrine of force will make the damage scope of the contract to be different, and China adopts the "the direct effect of the correction". The scope of the compensation for damages after the cancellation of the contract in the theoretical circle of our country has formed three claims. According to the principle of freedom of contract, the principle of protecting the rights and interests of the parties and the principle of encouraging the transaction are set up according to the principle of freedom of contract. The type of termination of the contract of the house-production transaction is agreed to be released and the statutory release is terminated. The statutory release includes the release of any release, the release of force majeure, the termination of the default and the anticipated termination of the default. The compensation for damages will be generated after the cancellation of the transaction contract, and the scope of the damages for the different types of contracts will be different. In the present case, the contract is to be released, and the damages after the termination of the contract shall include the available benefit, and the available benefit shall be limited within a reasonable scope and calculated in accordance with a certain standard. It is suggested to eliminate the legal obstacles to the performance of the transaction contract, establish the legal nature of the real estate appraisal institution and establish the market consciousness of the real estate transaction.
【学位授予单位】：中南大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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