“凶宅”买卖合同效力研究

发布时间：2018-03-07 01:05

本文选题：“凶宅”　切入点：民间习俗　出处：《大连海事大学》2015年硕士论文　论文类型：学位论文

【摘要】：进入二十一世纪以来,中国房地产业蓬勃发展,巨大的刚性市场需求推动了二手房的交易量的增长,促进了我国经济的发展,于此同时,也带来了各种各样的房屋买卖合同纠纷,“凶宅”买卖合同纠纷便油然而生。在理论方面,对于“凶宅”买卖合同的效力,在国内并没有形成统一意见,在这一问题上有一定研究的专家和学者,对此有不同的主张与看法。与此同时,从近几年的司法实践来看,对于“凶宅”买卖合同纠纷,在全国不同层级、地区的法院均先后出现多种不同的法律判决结果,出现了很多同案不同判的现象。第一部分,“凶宅”的界定。从“凶宅”的含义和忌讳“凶宅”的民间风俗的识别两方面展开论述。所谓“凶宅”,许多专家、学者给出了各不相同的定义,但其共性为主张“凶宅”的客观性、恐惧性；关于忌讳“凶宅”的大众心理,有人主张其为一种封建迷信,也有人主张其为一种流传已久的民间习俗,本人赞同第二种观点,认为忌讳“凶宅”是一种普遍存在的民间习俗,应给与适当的尊重,不应该被否定。第二部分,梳理目前我国关于“凶宅”买卖合同效力的几种不同观点。结合我国目前是在司法实践中对“凶宅”买卖合同纠纷的不同判决情形,介绍关于“凶宅”买卖合同的无效论、有效论、以及可变更、可撤销论。进而得出结论,影响“凶宅”买卖合同效力判定的关键性要素包括哪些内容。第三部分,对“凶宅”买卖合同进行可变更、可撤销的效力证成。将对“凶宅”买卖合同属于欺诈类型合同进行论述,分别从“凶宅”出卖人隐瞒“凶宅”信息属于欺诈行为、“凶宅”出卖人主观存在欺诈故意、“凶宅”买受人因欺诈行为陷入错误认识,并且基于此做出购房行为,这几方面着重进行论述,对“凶宅”买卖合同为可撤销合同进行效力证成。试图形成理论上的一致观点,在今后关于“凶宅”买卖合同纠纷的司法实践中,起到一定的指导作用。最后为了尽量避免出现、以及更好解决此类纠纷总结几点建议。
[Abstract]:Since 21th century, China's real estate industry has been booming. The huge rigid market demand has promoted the growth of second-hand housing trading volume and the development of China's economy. At the same time, It has also brought all kinds of disputes over the contract of sale of houses, and the disputes over the contract of purchase and sale of "fierce houses" arise spontaneously. In theory, there has not been a unified opinion on the effectiveness of the contracts for the sale of "houses" in China. Experts and scholars who have studied this issue have different opinions and opinions on it. At the same time, judging from the judicial practice in recent years, there are different levels of disputes over the sale of "villas" in the country. District courts have all produced a variety of different legal decisions in succession. There have been many different judgments in the same case. The first part, the definition of "fierce house." it discusses the meaning of "fierce house" and the identification of folk customs of taboo "fierce house." the so-called "fierce house", many experts, Scholars have given different definitions, but their common features are the objectivity and fear of "villainy" and the popular psychology of taboo "villainy", which is advocated by some as a feudal superstition. It is also argued that it is a popular folk custom. I agree with the second view. I think that taboo "villainy" is a widespread folk custom that should be properly respected and should not be denied. Part two, Combing several different views on the validity of the contract of "fierce house" sale in our country at present. Combining with the different judgments on the dispute of the contract of purchase and sale of "fierce house" in judicial practice in our country at present, this paper introduces the theory of invalidity of the contract of purchase and sale of "fierce house". The theory of effectiveness, and the theory of revocability and revocability. Finally, the conclusion is drawn that what are the key elements to determine the effectiveness of the contract of sale and purchase of "mania". The third part is to change the contract of purchase and sale of "villager". Revocable validity certificate... Will discuss that the contract of sale and purchase of "villainy" belongs to the type of fraud contract, It is a fraud to conceal the information from the "villain" seller respectively. The "villain" seller has subjective fraud intention, and the "villain" buyer falls into a wrong understanding because of the fraudulent behavior, and makes the purchase behavior based on this. These aspects focus on discussing the validity of the contract of sale and purchase of "villainy" as a revocable contract, trying to form a consistent view in theory, and in the future judicial practice on the dispute over the contract of purchase and sale of the "villainy". Finally, in order to avoid as far as possible, and better resolution of such disputes summarized a few suggestions.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6

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