房地产合作开发合同法律问题探究

发布时间：2018-03-09 02:16

本文选题：土地使用权　切入点：房地产　出处：《河北师范大学》2017年硕士论文　论文类型：学位论文

【摘要】：房地产合作开发促进了土地与资金的结合,具有整合资源、化解风险的意义,是房地产市场化进程的必然产物。然而,由于此类开发涉及的资金庞大、程序复杂、加之相关法律不完善,实际开发过程中仍面临诸多问题。房地产合作开发合同是此类开发中最常见的合同,引发的争议十分常见,尤其此类合同效力与转性问题引发的纠纷最多。本文旨在分析房地产合作开发合同涉及的法律关系,着重探讨研究其中引发争议最多的法律问题,针对我国现行法律规定和相关制度没有得到补充和完善的情形,借鉴国内外学者的研究成果,从立法、执法层面去寻找解决房地产合作开发合同纠纷的对策,促使此类开发步入合法有序的轨道。本文以房地产合作开发合同为研究对象,基于理论与实践,探讨防范、减少此类合同纠纷的法律途径与对策,主要从以下四部分展开论述。第一部分阐述房地产合作开发合同基础法律问题。首先,结合我国房地产法律法规阐述了房地产合作开发的基本概念;其次,参考学界观点并结合房地产开发实践,论述了房地产合作开发存在的形态和模式。在此基础上,系统地阐述了房地产合作开发合同的法律概念、法律特征与法律性质。第二部分探讨房地产合作开发合同的效力问题。从合同成立与生效的一般原理出发,围绕房地产合作开发主体资格、土地使用权性质与取得方式和行政审批,分析房地产合作开发合同的成立与生效,阐述影响此类合同效力的因素。第三部分分析房地产合作开发合同转性问题。首先,从法理上寻找房地产合作开发合同转性的依据,有意思表示说与无效法律行为转换说。其次,分析阐述房地产合作开发合同四种常见的转性情形,即名为合作开发实为土地使用权转让、名为合作开发实为房屋买卖、名为合作开发实为借贷及名为合作开发实为房屋租赁,着重探讨此类合同转性的成因及转性后效力的认定。第四部分阐述房地产合作开发合同的完善构想。针对此类合同立法存在的缺陷以及行政监管不力、执法不严的现状,从完善我国房地产立法与加强行政干预两方面建言献策。提出将房地产合作开发合同作为有名合同列入法律,明确此类合同的法律概念与性质并增加对合同的指导性规定;同时完善此类合同效力与转性条款的相关规定,要求合同当事人均应具备房地产开发经营资质、严格限制划拨土地与集体土地参与房地产开发、禁止采用补办行政手续的方式补正合同效力、合同无效后恰当地平衡当事人各方利益、扩大意思表示理论的适用范围;最后建议加强对房地产合作开发合同的行政干预,应建立此类合同的预审制度、切实做好行政审批工作、加大对违法行为的处罚力度等。
[Abstract]:The cooperative development of real estate promotes the combination of land and capital, has the significance of integrating resources and defusing risks, and is the inevitable outcome of the process of real estate marketization. However, because of the huge funds involved in such development, the procedures are complicated. In addition, the relevant laws are not perfect, the actual development process still faces many problems. Real estate cooperative development contract is the most common contract in this kind of development, the disputes caused by it are very common. This paper aims to analyze the legal relationship involved in the real estate cooperative development contract, focusing on the most controversial legal issues. In view of the fact that the current laws and regulations and related systems of our country have not been supplemented and perfected, we can learn from the research results of domestic and foreign scholars and seek the countermeasures to solve the disputes in the contract of cooperative development of real estate from the aspects of legislation and law enforcement. This article takes the real estate cooperative development contract as the research object, based on the theory and practice, discusses the legal ways and countermeasures to prevent and reduce this kind of contract dispute. The first part expounds the basic legal problems of the real estate cooperative development contract. First, it expounds the basic concept of the real estate cooperative development combined with the real estate laws and regulations of our country; secondly, Referring to the academic point of view and combining with the real estate development practice, this paper discusses the form and mode of the real estate cooperative development. On this basis, it systematically expounds the legal concept of the real estate cooperative development contract. The second part discusses the validity of the real estate cooperative development contract. Based on the general principles of the formation and effectiveness of the contract, it revolves around the qualification of the subject of the real estate cooperative development. The nature of land use right, the way of obtaining and the administrative examination and approval, analyzes the establishment and effectiveness of the real estate cooperative development contract, expounds the factors that affect the effectiveness of the contract. The third part analyzes the conversion problem of the real estate cooperative development contract. Looking for the basis for the conversion of cooperative development contracts in real estate from the legal point of view, it is interesting to say that the transfer of legal acts is invalid. Secondly, four common cases of conversion of real estate cooperative development contracts are analyzed and expounded. That is to say, cooperative development is the transfer of land use rights, it is called cooperative development, it is real house trading, it is called cooperative development real loan, and it is called cooperative development real estate lease, Part 4th expounds the perfect conception of the real estate cooperative development contract. In view of the defects existing in the legislation of this kind of contract and the weak administrative supervision and the lax enforcement of the law, the article mainly discusses the causes of this kind of contract transference and the confirmation of its post-conversion effect. This paper puts forward some suggestions from the aspects of perfecting the legislation of real estate and strengthening administrative intervention. It puts forward that the contract of cooperative development of real estate should be included in the law as a famous contract, clarify the legal concept and nature of this kind of contract and increase the guiding provisions of the contract. At the same time, it is necessary to perfect the relevant provisions of the validity and transposition clauses of such contracts, to require all parties to the contract to possess real estate development and management qualifications, and to strictly restrict the allocation of land and collective land participation in real estate development. It is prohibited to use the method of supplementary administrative formalities to correct the effectiveness of the contract, to properly balance the interests of the parties concerned after the contract is invalid, and to expand the scope of application of the theory of expression of intention. Finally, it is suggested that the administrative intervention in the contract for the cooperative development of real estate should be strengthened. It is necessary to establish the pre-examination system of this kind of contract, do a good job in administrative examination and approval, and increase the punishment for illegal acts and so on.
【学位授予单位】：河北师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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