论商品房认购合同

发布时间：2018-03-12 15:05

本文选题：本约　切入点：预约　出处：《华中科技大学》2015年硕士论文　论文类型：学位论文

【摘要】：随着我国经济持续、稳定增长,人民人均收入也有了一定提升,人民生活日益富裕,买房已经成为千家万户所要面对的首要问题,因此,商品房交易市场也日趋火爆。然而,商品房市场行情瞬息万变,对于广大房地产开发商而言,商机转瞬即逝;而对于广大购房人而言,也希望能够及早缔结购房合约,固定房屋交易机会,以避免日后因为政策、房价上涨等不利因素干扰,因此,商品房认购合同应运而生,并且大量应用在现实生活中。商品房认购合同是目前广泛应用于商品房预售交易中的一种特有的法律文书样式,是买卖双方签订正式房屋买卖合同之前所订立的用来约束买卖双方的文书。现实生活里,因商品房认购也引发出了很多纠纷,目前在我国《合同法》、《商品房销售管理办法》等现行法律法规中皆无商品房认购合同的相关概念。2012年3月,最高人民法院出台了《关于审理买卖合同纠纷案件适用法律问题的解释》(以下简称买卖合同解释),在此司法解释中第二条明确了商品房认购合同属于预约合同性质。但是,我国现行法律涉及商品房认购合同的法律条款依旧很少,仅仅依靠几条司法解释并不能解决实践中出现的很多问题,直接导致实践中解决商品房认购合同纠纷依旧很棘手。本文创新之处在于,首先是以我国现行法律为基础,在我国现有研究成果之上,运用综合分析方法,分析英美法系和大陆法系国家预约法律制度以及相关学者观点,将其中有利于我国预约理论构建,适用于我国现实情况的相关立法和观点加以加纳。其次,在此基础之上,运用均衡利益分析方法,结合我国当前实际生活中所发生的商品房认购合同纠纷案例,就商品房认购合同中的法律效力问题、违反商品房认购合同的法律责任以及救济方式进行进一步论述,更加透彻地分析这些问题,并且针对交易过程中开发商的强势地位,购房人弱势地位的现状,期望能够使商品房预售过程中商品房认购双方的地位更加平等;权利义务更加合理;利益分配更加公平;整个市场的交易行为更加合法。最后,期望能够对实践中解决我国的商品房认购合同纠纷提供些许帮助,同时也为我国将来的预约立法提供一点借鉴意义。
[Abstract]:With the sustained and steady growth of China's economy, the per capita income of the people has also been raised to a certain extent, and the people's daily life has become increasingly prosperous. Buying a house has become a primary problem facing thousands of families. Therefore, the commercial housing market is also becoming increasingly popular. However, The market for commercial housing is changing rapidly, and for the vast number of real estate developers, business opportunities are fleeting. For the vast number of property buyers, they also hope to conclude purchase contracts as soon as possible, so as to secure opportunities for housing transactions, so as to avoid future policies. Because of the interference of unfavorable factors such as rising house prices, commercial housing subscription contracts have emerged as the times require, and have been widely used in real life. At present, commercial housing subscription contracts are widely used in commercial housing pre-sale transactions in a unique legal document style. It is a document signed before the buyer and seller sign a formal housing sale contract to bind the buyer and seller. In real life, a lot of disputes have arisen because of the subscription of commercial housing. At present, there are no relevant concepts of the contract for the subscription of commercial housing in the current laws and regulations, such as the contract Law of our country, the measures for the Management of Commercial Housing sales, etc. In March 2012, The Supreme people's Court has issued the interpretation of the legal issues applicable to hearing cases of disputes relating to sale and purchase contracts (hereinafter referred to as the interpretation of the contract of sale and purchase. Article 2 of this judicial interpretation clearly states that the contract for the subscription of commercial housing is an appointment contract. However, The current law of our country concerning the contract of commercial housing subscription is still very few, only relying on a few judicial interpretations can not solve many problems that appear in practice. The innovation of this paper lies in that, first of all, it is based on the current law of our country, on the basis of the existing research results in our country, the comprehensive analysis method is used. This paper analyzes the reservation legal system of Anglo-American law system and civil law system as well as the views of relevant scholars, and puts the relevant legislation and views which are beneficial to the construction of reservation theory in our country and applicable to the reality of our country to Ghana. Secondly, on the basis of this, By using the method of equilibrium interest analysis, combining with the disputes of commercial house subscription contract that happened in our country's actual life, this paper discusses the legal effect of the commercial house subscription contract. The legal liability of violating the commercial housing subscription contract and the way of relief are further discussed, and these problems are analyzed more thoroughly, and in view of the strong position of the developer in the course of the transaction and the current situation of the weak position of the buyer, It is expected to make the status of both parties in the pre-sale process of commercial housing more equal; the rights and obligations are more reasonable; the distribution of benefits is fairer; and the transaction behavior of the whole market is more legal. Finally, It is expected to provide some help to solve the contract dispute of commercial housing subscription in our country in practice, and at the same time, it can also provide some reference significance for the future legislation of reservation in our country.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.29;D923.6

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