存量房买卖网签的法律效力

发布时间：2018-06-30 21:10

本文选题：存量房买卖 + 网签　；参考：《当代法学》2017年01期

【摘要】：存量房买卖的网签在实践中相当常见,但因法律未明文规定,理论和实务对其法律效力存在不小的争议,亟需予以明确。网签有成立买卖合同的效力,当事人自行交易的,买卖合同自签署网签申请文书时成立;通过经纪中介交易的,买卖合同自当事人线下签署买卖合同书时成立。除了通过网签成立的买卖合同,相同当事人就同一房屋还签订内容不同的买卖合同的,应推定网签成立的买卖合同符合当事人的真实合意,反对者要负担反证的证明责任,这体现了网签推定当事人真实意思的效力。在一房数卖时,网签有保障买方债权的效力,应优先实现通过网签成立的合同中买方的债权。根据这一效力,在网签后、房屋所有权转移登记前,卖方不能把网签的房屋抵押给他人。
[Abstract]:The net sign of stock house purchase and sale is quite common in practice, but because the law is not clearly stipulated, there is no small dispute on its legal effect in theory and practice, so it needs to be clarified. The net sign has the effect of establishing the contract of sale and purchase, if the parties trade on their own, the contract of sale shall be established when signing the application document of the net; if the transaction is done through a broker, the contract of purchase and sale shall be established when the contract of sale is signed under the line of the parties. In addition to a contract of sale established through a net, where the same party has also signed a different contract of sale for the same house, it shall be presumed that the contract signed by the net is in conformity with the true agreement of the parties, and the objector shall bear the burden of proof against it. This reflects the validity of the presumption of the true intention of the parties concerned. In the case of one-house sale, the net has the effect of protecting the buyer's creditor's rights, and the buyer's creditor's rights in the contract established through the net sign should be realized first. According to this effect, after the net sign, the seller cannot mortgage the net-signed house to others until the house ownership transfer registration.
【作者单位】：北京大学法学院;
【分类号】：D923.6

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