商品房预售广告若干民事责任研究

发布时间：2018-07-03 06:20

本文选题：商品房预售广告 + 违约责任　；参考：《内蒙古大学》2013年硕士论文

【摘要】：伴随着商品房的快速销售,房地产业的迅速发展,广告作为这个时代一种威力无比的营销工具,被广泛用于商品房的销售过程中。现阶段我国商品房销售主要采取预售方式。商品房预售广告便成为房地产开发商销售商品房普遍采用的宣传方式。由于商品房预售标的物是尚未建成或尚不存在的房屋,使得许多企图谋取暴利的开发商利用这一特殊性发布虚假商品房预售广告,误导、欺骗购房者与其签订购房合同。此类纠纷频频出现且数量激增,不仅严重损害了购房者的利益,也扰乱了房地产市场的正常秩序。审判实践中发现,大多数商品房预售广告的纠纷的争议焦点源于对商品房预售广告性质的认定和开发商不履行广告承诺的行为是否够构成欺诈,是否应对购房者进行双倍赔偿的问题。本文通过案例穿插引出问题出现的具体形式,结合理论梳理进行分析,从而总结出问题的具体解决方式。全文主要内容如下：第一部分从商品房预售广告的种类及立法情况介绍了商品房预售广告的现状。由商品房预售广告种类繁多及立法不完善的现状分析出商品房预售广告宣传中存在广告违反《广告法》,广告性质认定存在分歧及是否应适用惩罚性赔偿的问题。第二部分通过案例引出商品房预售广告性质的认定问题。重点分析商品房预售广告及宣传资料的内容哪些属于要约邀请,哪些属于要约。对于符合要约性质的商品房预售广告应视为合同内容,开发商不履行合同或不适当履行合同的,应当承担继续履行、赔偿损失的违约责任。第三部分论述了虚假广告的表现形式,提出认定虚假商品房预售广告应从预售广告的真实性及是否对购房者的认识构成误导两方面进行判断。如果开发商发布的虚假商品房预售广告符合欺诈的构成要件,开发商的行为就被认定为欺诈,购房者可以行使撤销权,撤销购房合同。开发商这种违反前合同义务的行为,给购房者造成信赖利益损失,应承担缔约过失责任。第四部分主要论述了虚假商品房预售广告发布者适用惩罚性赔偿制度的确立问题。本部分首先从发布虚假商品房预售广告属于恶意行为,利益调整中应注重对购房者的救济两方面提出发布虚假商品房预售广告适用惩罚性赔偿的的必要性。其次,针对实践中购房者主张适用《消费者权益保护法》不被支持的现状,从三方面分析了购房者是具有消费者地位的。鉴于目前对开发商发布虚假商品房预售广告是否适用惩罚性赔偿的模糊性,建议扩大《最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》第9条的内容,明确开发商发布虚假商品房预售广告适用惩罚性赔偿制度,以期更好的保护购房者的合法权益不受侵犯。
[Abstract]:With the rapid sale of commercial housing and the rapid development of real estate, advertising, as a powerful marketing tool in this era, is widely used in the process of sale of commercial housing. At this stage, the sale of commercial housing in China mainly adopts the way of pre-sale. Commercial housing pre-sale advertising has become the real estate developers to sell commercial housing generally adopted the way of publicity. Because the subject matter of commercial housing pre-sale is not built or does not exist, many developers who try to obtain huge profits make use of this particularity to issue false commercial housing pre-sale advertisements, mislead, and deceive buyers to sign a house purchase contract. The frequent and soaring number of such disputes not only seriously damaged the interests of buyers, but also disturbed the normal order of the real estate market. In the trial practice, it is found that the dispute over most commercial housing pre-sale advertising disputes stems from the recognition of the nature of the commercial pre-sale advertisement and whether the developer's failure to fulfill the advertising promise constitutes fraud. The question of whether buyers should be paid double compensation. In this paper, the concrete form of the problem is brought out by case insertion, and the analysis is carried out by combing the theory, and the concrete solution to the problem is summed up. The main contents of this paper are as follows: the first part introduces the current situation of commercial housing pre-sale advertising from the categories and legislation of commercial housing pre-sale advertising. Based on the present situation of various kinds of pre-sale advertisements and imperfect legislation of commercial housing, the author points out that there are some problems in advertising of commercial housing pre-sale, that is, the advertisement violates the "Advertising Law", the nature of the advertisement is found to be different and whether punitive damages should be applied. The second part leads to the identification of the nature of commercial housing pre-sale advertising through cases. Focus on the analysis of commercial housing pre-sale advertising and publicity materials which belong to the offer invitation, which belong to the offer. For the commercial housing pre-sale advertising in accordance with the nature of the offer should be regarded as the content of the contract. If the developer does not perform the contract or does not properly perform the contract, he shall continue to perform and compensate for the loss of breach of contract. The third part discusses the manifestation of false advertising, and puts forward that the determination of false commercial housing pre-sale advertising should be judged from two aspects: the authenticity of pre-sale advertisements and whether the understanding of the buyers is misleading. If the presale advertisement of the false commercial house issued by the developer accords with the constitutive requirements of fraud, the behavior of the developer is considered to be fraud, and the buyer can exercise the right of rescission and cancel the purchase contract. The developer's behavior of violating the pre-contract obligation causes loss of trust interest to the buyer and shall bear the responsibility of contracting negligence. The fourth part mainly discusses the establishment of punitive damages system. This part firstly puts forward the necessity of applying punitive compensation to publish false commercial housing pre-sale advertisement from two aspects of interest adjustment, which should be paid attention to the remedy to the buyers. Secondly, in view of the fact that the property buyers advocate that the Consumer Rights and interests Protection Law should not be supported in practice, this paper analyzes that the buyers have the status of consumers from three aspects. In view of the fuzziness of whether punitive damages are currently applicable to developers issuing pre-sale advertisements for false commercial housing, It is suggested that the Supreme people's Court should expand the interpretation of Article 9 of the Supreme people's Court on the legal issues applicable to the trial of disputes over the sale of commercial housing contracts, and clarify the system of punitive damages applicable to developers issuing false commercial housing pre-sale advertisements. In order to better protect the legitimate rights and interests of buyers from infringement.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.294;D923.6

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