预购商品房转让纠纷的法律适用
发布时间：2018-09-07 16:09
【摘要】：预购商品房转让,是指商品房预购法律关系中的预购人将尚未竣工验收合格的商品房再行转让的法律行为。我国对预购商品房转让行为并没有制定相关的法律或行政法规,《房地产管理法》第四十六条授予国务院对预购商品房转让进行规定的权利。2005年4月30日,国务院七部门联合发布了《关于做好稳定住房价格工作的意见》,禁止商品房预购人将购买的未竣工的预售商品房再行转让。《关于做好稳定住房价格工作的意见》对司法实践产生了较大的影响,有不少法官据此认为预购商品房转让合同无效,且受让人不具有进行权属登记的权利。笔者不赞成以上观点,并对这类观点进行了批判。笔者认为,预购商品房转让交易类型复杂,不同的交易类型中当事人的法律关系、负担行为和处分行为的内容也大相径庭,需要深入研究,才能正确地适用法律。本文第一部分介绍了预购商品房转让纠纷产生的背景及问题焦点。本文第二部分结合具体的司法案例,对预购商品房转让合同效力、受让人是否有申请权属登记权利的争议进行了具体的归纳整理。本文第三部分首先论证了预购商品房转让合同的有效性,然后对不同交易类型的预购商品房转让中的法律关系进行剖析,最后对受让人是否具有申请权属登记的权利进行分析和论证。本文第四部分就预购商品房转让行为的效力、受让人面临合同履行问题时如何处理提出了法律适用建议。本文的第五部分是结语,简单总结了这篇文章的所有论点。
[Abstract]:Advance purchase of commercial housing transfer, refers to the legal relationship in the advance purchase of commercial housing buyers will not have completed the acceptance of the commercial housing transfer again. China has not formulated relevant laws or administrative regulations on the transfer of pre-purchased commercial housing. Article 46 of the Real Estate Management Law grants the State Council the right to stipulate the transfer of pre-purchased commercial housing. The seven departments of the State Council jointly issued the opinions on doing a good job in stabilizing Housing prices, prohibiting the retransfer of unfinished pre-sold commercial housing purchased by advance purchasers of commercial housing. < opinions on doing a good job in stabilizing Housing prices] Has had a great impact on judicial practice, According to this, many judges hold that the contract of transfer of pre-purchase commercial housing is null and void, and the transferee does not have the right to register the title. The author disagrees with the above views and criticizes them. The author believes that the transaction types of pre-purchase commercial housing transfer are complicated, and the legal relationship, burden behavior and disposition behavior of the parties in different transaction types are also very different, so we need to study deeply in order to apply the law correctly. The first part of this paper introduces the background and focus of the disputes over the transfer of pre-purchase commercial housing. The second part of this paper combined with the specific judicial cases, the transfer contract effectiveness of pre-purchase commercial housing, whether the transferee has the right to apply for ownership registration dispute has been concretely summarized and sorted. The third part of this paper first demonstrates the validity of the contract for the transfer of pre-purchase commercial housing, and then analyzes the legal relationship in the transfer of pre-purchase commercial housing of different types of transactions. Finally, whether the transferee has the right to apply for ownership registration is analyzed and proved. In the fourth part, the author puts forward some suggestions on how to deal with the problem of the transferee when facing the problem of contract performance. The fifth part of this paper is the conclusion, briefly summarizes all the arguments of this article.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.29
本文编号：2228749
[Abstract]:Advance purchase of commercial housing transfer, refers to the legal relationship in the advance purchase of commercial housing buyers will not have completed the acceptance of the commercial housing transfer again. China has not formulated relevant laws or administrative regulations on the transfer of pre-purchased commercial housing. Article 46 of the Real Estate Management Law grants the State Council the right to stipulate the transfer of pre-purchased commercial housing. The seven departments of the State Council jointly issued the opinions on doing a good job in stabilizing Housing prices, prohibiting the retransfer of unfinished pre-sold commercial housing purchased by advance purchasers of commercial housing. < opinions on doing a good job in stabilizing Housing prices] Has had a great impact on judicial practice, According to this, many judges hold that the contract of transfer of pre-purchase commercial housing is null and void, and the transferee does not have the right to register the title. The author disagrees with the above views and criticizes them. The author believes that the transaction types of pre-purchase commercial housing transfer are complicated, and the legal relationship, burden behavior and disposition behavior of the parties in different transaction types are also very different, so we need to study deeply in order to apply the law correctly. The first part of this paper introduces the background and focus of the disputes over the transfer of pre-purchase commercial housing. The second part of this paper combined with the specific judicial cases, the transfer contract effectiveness of pre-purchase commercial housing, whether the transferee has the right to apply for ownership registration dispute has been concretely summarized and sorted. The third part of this paper first demonstrates the validity of the contract for the transfer of pre-purchase commercial housing, and then analyzes the legal relationship in the transfer of pre-purchase commercial housing of different types of transactions. Finally, whether the transferee has the right to apply for ownership registration is analyzed and proved. In the fourth part, the author puts forward some suggestions on how to deal with the problem of the transferee when facing the problem of contract performance. The fifth part of this paper is the conclusion, briefly summarizes all the arguments of this article.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.29
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