预售商品房再转让法律问题研究

发布时间：2018-06-03 18:22

本文选题：预售商品房 + 法律性质　；参考：《兰州大学》2017年硕士论文

【摘要】：预售商品房再转让,也即期房再转让,是指预购人和开发商(预售人)订立预售商品房买卖合同之后,预购人出于牟利或者其他原因将其购买的没有获得房产证的预售商品房转让给第三人的行为。近年来,我国房地产市场快速发展,房价也持续上涨,但从开发商取得商品房预售许可证开始,到开发商办理完毕初始登记取得房屋产权证书之间的这段时间内,由于种种原因不可避免地会出现预购人再转让已购买的预售商品房的交易行为,但目前我国法律对于预售商品房的再转让没有统一的立法规定,各地方的地方性法规也是混乱不堪,有些允许自由转让,有些则严格禁止。因此,没有统一的法律调整和解决预售商品房的再转让所引起的纠纷,必然导致市场混乱,严重影响我国房地产市场的健康发展。本文由一个预售商品房再转让纠纷的典型案例引入,结合法学基础理论知识,对预售商品房再转让行为进行释义,对预售商品房再转让的性质、预售商品房再转让合同的效力以及我国预售商品房再转让法律规制的现状和完善预售商品房再转让制度等方面做出了较为详细的阐述,具体分为四章加以论述:第一章:案情回顾及争议焦点,叙述了基本案情以及法院认定的预售商品房再转让行为的性质和最终裁判,分析案情,提出案件争议焦点。第二章:预售商品房再转让相关法律理论概述,从法学理论出发对预售商品房再转让进行分析。第三章:我国预售商品房再转让立法现状及评析,从国家立法层面和地方立法层面对预售商品房再转让立法进行分析和评述。第四章:对我国预售商品房再转让法律规制的思考和建议。在前文分析的基础上,从统一立法、转让的条件和程序、预告登记、建立完善的“转按揭”制度、预购人的权利瑕疵担保责任以及实行强制登记备案制度等方面对我国预售商品房再转让提出立法建议。
[Abstract]:Retransfer of pre-sold commercial housing, that is, retransfer of prospective housing, refers to the conclusion of a pre-sale contract between the buyer and the developer (pre-seller) for the purchase and sale of commercial housing, The act of transferring a pre-sold commercial house purchased by the buyer for profit or otherwise to a third party without a real estate certificate. In recent years, the real estate market in our country has developed rapidly, and the house prices have continued to rise. However, from the time when developers obtain pre-sale permits for commercial housing, to the period between the completion of initial registration by developers and the acquisition of house title certificates, Due to various reasons, there will inevitably be the transaction behavior of pre-buyers retransferring the pre-sold commercial housing, but at present, there is no unified legislative regulation on the retransfer of pre-sold commercial housing in our country's laws. Local laws and regulations are also chaotic, some allowing free transfer and others strictly prohibited. Therefore, the lack of unified legal adjustment and settlement of the disputes caused by the retransfer of pre-sale commercial housing will inevitably lead to market chaos and seriously affect the healthy development of the real estate market in our country. This article is introduced by a typical case of pre-sale commercial housing retransfer dispute, combined with the basic theoretical knowledge of law to explain the retransfer behavior of pre-sale commercial housing, and the nature of retransfer of pre-sale commercial housing. The effectiveness of the retransfer contract of pre-sale commercial housing, the current situation of legal regulation of retransfer of pre-sale commercial housing in China and the improvement of retransfer system of pre-sale commercial housing are elaborated in detail. It is divided into four chapters: the first chapter: review of the case and the focus of the dispute, the basic case and the court decided that the nature of the retransfer of commercial housing and the final decision, analysis of the case, put forward the focus of the case dispute. Chapter two: the legal theory of retransfer of pre-sale commercial housing is summarized, and the retransfer of pre-sold commercial housing is analyzed from the perspective of legal theory. Chapter three: the present situation and analysis of the legislation of retransfer of commercial housing in advance in China, and analyze and comment on the legislation of retransfer of commercial housing in advance from the level of national legislation and local legislation. Chapter four: thinking and suggestion on the legal regulation of retransfer of commercial housing in our country. On the basis of the previous analysis, from the aspects of uniform legislation, conditions and procedures for transfer, advance registration, and the establishment of a perfect "remortgage" system, This paper puts forward some legislative suggestions on the retransfer of pre-sale commercial housing in China from the aspects of the guarantee responsibility of the rights and defects of the buyers and the enforcement of the compulsory registration and filing system.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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