购房预约合同中同时履行抗辩权研究

发布时间：2019-04-13 19:13

【摘要】：在房屋买卖过程中,购房人与房地产开发商通过数次磋商,最终往往会签订诸如意向书、认购书、备忘录等,约定在将来的某个时间签订正式的房屋买卖合同,理论上,此类意向书、认购书称之为预约合同。实践中,购房预约合同的应用非常广泛,起到了固定双方交易机会的作用。伴随着预约合同在房地产行业广泛的应用,纠纷也日益增多。近几年,一种新型的纠纷让法官疲于应付,购房人与房地产开发商在预约合同中约定的房屋于正式的房屋买卖合同签订时间到来之前,质量出现了瑕疵,致使房屋不适宜居住甚至无法居住,此时购房人陷入两难:首先,基于预约合同中约定的义务,自己必须按时签订正式的房屋买卖合同,否则构成违约,需要承担违反预约合同的违约责任;反之,一旦按时签订正式的房屋买卖合同,自己将要得到有瑕疵的房屋,有违公正。实践中,购房人往往不会按时签订正式的房屋买卖合同,而法官倾向于基于此认定购房人违约,进而承担相应的违约责任,至于房屋质量存在的瑕疵问题,待正式的房屋买卖合同签订之后,再去追究房地产开发商的违约责任。如此解决纠纷的思路倾向,使得纠纷不能一次性得到解决,致使之后司法资源的再次启动,浪费社会成本,易引发社会矛盾。另外,鉴于当前我国关于预约的立法处于缺失状态,理论上观点各异,如此认定将会导致司法裁判标准无法统一等问题。鉴于此,本文尝试通过同时履行抗辩权去解决上述问题,将房屋的完好履行作为房地产开发商基于预约合同的从给付义务,从给付义务的瑕疵履行在影响合同目的实现的情况下可以适用同时履行抗辩权,排除迟延签订本约的违约责任,进而法官可以判决双方同时履行,在房地产开发商提供适宜居住的房屋的同时,购房人与其签订正式的房屋买卖合同,可达到尽快解决纠纷,实现诉讼经济,节约社会成本,平衡双方利益的良好效果。
[Abstract]:In the process of buying and selling houses, the buyer and the real estate developer through a number of negotiations, eventually often sign letters of intent, subscription, memorandums and so on, agreed to enter into a formal contract for the sale of housing at some time in the future, theoretically, Such a letter of intent, the subscription is called an appointment contract. In practice, the application of purchase reservation contract is very wide, which plays the role of fixed trading opportunities between the two sides. With the extensive application of appointment contract in the real estate industry, disputes are increasing day by day. In recent years, a new type of dispute has left judges struggling to deal with it, and the quality of the houses agreed between buyers and real estate developers in advance of the formal contract for the sale of houses has been flawed before the time of signing of the formal contract for the purchase and sale of houses. Because the house is unfit to live or even unable to live, the buyer is caught in a dilemma: first of all, based on the obligations stipulated in the appointment contract, he must sign a formal contract for the sale of houses on time, otherwise it would constitute a breach of contract. To be liable for breach of contract; On the other hand, once a formal contract for the sale of houses is signed on time, it is against justice that one will get a defective house. In practice, buyers often do not sign formal contracts for the sale of houses on time, and judges tend to find that buyers are in breach of contract on the basis of this, and then bear the corresponding liability for breach of contract. As for the defects in the quality of housing, the judge tends to conclude that the buyer is in breach of contract. After the formal house sale contract is signed, then investigate the real estate developer's default responsibility. So the train of thought tendency to solve the dispute, makes the dispute can not be resolved once, resulting in the re-start of judicial resources, waste social costs, easy to lead to social conflicts. In addition, in view of the lack of legislation on appointment in our country at present, there are different views in theory, which will lead to problems such as the inconsistency of judicial standards. In view of this, this article attempts to solve the above-mentioned problems by performing the right of defense at the same time, and regards the perfect performance of the house as the contingent obligation of the real estate developer based on the appointment contract. The performance of the defective performance of the payment obligation may apply to the simultaneous performance of the right of defense under the circumstances affecting the realization of the purpose of the contract, and excludes the liability for the delay in signing this contract, so that the judge may judge both parties to perform the contract at the same time. While real estate developers provide livable houses, buyers sign formal house sale contracts with them, which can solve disputes as soon as possible, realize litigation economy, save social costs and balance the interests of both sides.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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