商品房预售监管法律制度研究

发布时间：2018-01-25 04:08

本文关键词： 商品房预售监管　出处：《西南政法大学》2006年硕士论文　论文类型：学位论文

【摘要】：商品房预售是随着我国房地产业的蓬勃发展而发展起来的。商品房预售不仅对房地产开发商自身广筹资金、搞活经营、避免风险等起着重要作用，而且对活跃房地产市场，促进居民住房条件的改善也有积极意义。但近几年在商品房预售过程中出现了很多问题。商品房预售合同的标的，实质上是在房屋建成后依约交足房价款并获得其所有权的一种“期待权”。在合同约定的期限届满，房屋建成后，购房人才可凭这种“期待权”，要求房地产开发商依约交付所预购的房屋，向自己转让房屋的所有权。商品房预售合同的标的决定了消费者在购买预售商品房时，买卖双方交易是不对称的，消费者只能依据房地产开发商的宣传介绍决定购买与否，面临的不确定因素很多，如销售合同不规范、预售款被非法挪用、交房误期、建筑质量不过关、配套设施及绿化状况与许诺不符、在建工程抵押后预售或预售后再抵押、“一房二卖”等等行为频频发生，严重地损害了消费者的利益，扰乱了商品房预售市场秩序，影响了整个房地产市场健康、有序的发展。据统计，2003年至2005年第三季度，四川各级消协组织共受理商品房投诉案件7623件，其中涉及商品房预售的案件就高达91、3％。在网上搜索“商品房预售”这个词，，关于商品房预售的消息可谓铺天盖地，其中大部分都是关于消费者合法权益受侵害的报道。2005年10月19日，中消协特邀社会各界人士，从不同角度对商品房预售模式进行了论证。可见商品房预售已经引起了全社会的广泛关注。其实，无论是商品房预售还是商品房现售都是房地产市场的一种选择，有其存在的必然性。基于这样的认识，笔者认为，从1995年商品房预售制度在我国得到法律认可至今，不过十年的时间，在制度的设计上，难免会有不足之处。鉴于商品房预售市场存在的种种问题，解决的办法不是取消商品房预售制度，而是完善我国商品房预售制度，从而使商品房预售制度在良性轨道上健康发展。监管在商品房预售制度中占有重要的地位。因为商品房预售是一个动态过程，从房地产开发商办理预售许可证起，到房屋建成交付，在这个复杂的过程中，如果没有监管，就没有对消费者合法权益的保障，消费者自然会产生“不敢买”的心理，商品房预售也就无法进行下去。从这个角度说，商品房预售监管制度为创造满意、放心的商品房预售市场环境，起到
[Abstract]:The advance sale of commercial housing is developed with the booming development of the real estate industry in our country. The advance sale of commercial housing not only plays an important role in raising funds, invigorating management and avoiding risks, but also plays an important role in raising funds for real estate developers themselves. And active real estate market, to promote the improvement of housing conditions also have positive significance. However, in recent years, there have been many problems in the process of pre-sale of commercial housing. In essence, it is a kind of "right of expectation" which pays the full house price according to the contract and acquires its ownership after the building is completed. After the term of the contract expires, the house buyer can rely on this kind of "right of expectation". Real estate developers to deliver the pre-purchase of housing, to transfer their ownership of housing. The target of the pre-sale contract determines that consumers in the purchase of pre-sold commercial housing, buyers and sellers are asymmetric transactions. Consumers can only decide whether to buy or not according to the propaganda introduction of real estate developers, faced with many uncertain factors, such as non-standard sales contracts, pre-sale funds were illegally misappropriated, late delivery of housing, construction quality is not up to standard. The supporting facilities and greening condition do not accord with the promise. The behavior of pre-sale or remortgage after the pre-sale of the construction project, "one house and two sales" and so on frequently occurs, which seriously damages the interests of consumers. Disturbed the commercial housing pre-sale market order, affected the entire real estate market healthy, orderly development. According to statistics, 2003 to in the third quarter of 2005. Sichuan Association for Consumer Affairs at all levels to accept a total of 7623 complaints of commercial housing cases, including the sale of commercial housing cases involving as high as 91Q3. Online search for "commercial housing presale" this word. The news about the advance sale of commercial housing can be described as overwhelming, most of which are about the infringement of the legitimate rights and interests of consumers. In October 19th 2005, China Consumer Association specially invited people from all walks of life. This paper demonstrates the pre-sale model of commercial housing from different angles, which shows that the pre-sale of commercial housing has attracted wide attention of the whole society. In fact, whether the pre-sale of commercial housing or the current sale of commercial housing is a choice of the real estate market, there is its inevitability. Based on this understanding, the author thinks. Since 1995, the pre-sale system of commercial housing has been recognized by law in our country, but in the past ten years, there will inevitably be deficiencies in the design of the system, in view of the problems existing in the market of pre-sale of commercial housing. The solution is not to cancel the pre-sale system of commercial housing, but to perfect the pre-sale system of commercial housing in our country, so that the pre-sale system of commercial housing can develop healthily on the benign track. Supervision plays an important role in the pre-sale system of commercial housing, because the pre-sale of commercial housing is a dynamic process, from the real estate developers handling pre-sale permits to the completion of the delivery of housing. In this complex process, if there is no supervision, there will be no protection of the legitimate rights and interests of consumers, consumers will naturally have the mentality of "not dare to buy", commercial housing pre-sale will also be unable to proceed. From this perspective. In order to create a satisfactory and reassured market environment for the pre-sale of commercial housing, the system of supervision and control of the pre-sale of commercial housing has played a role in
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.181

【引证文献】