我国商品房预售法律监管制度研究

发布时间：2018-03-01 11:26

本文关键词： 商品房预售制度制度存废监管　出处：《西南交通大学》2011年硕士论文　论文类型：学位论文

【摘要】：商品房预售是指房地产开发企业将正在建设中的商品房预先出售给买受人,并由买受人支付定金或者房价款的行为。商品房预售制度起源于我国香港地区,作为房地产商融资和缓解购房者付款压力的一种重要途径,它一经推出,便迅速发展,并为许多国家和地区所采用。在一定时期内,商品房预售制度对于促进我国商品房销售,推动房地产业、金融业的的发展以及改善老百姓的住房条件等方面都起到了积极的作用。然而,由于该制度本身存在的一些缺陷、我国相关法律规制的不完善以及预售监管等方面的问题,使得由此引发的大量商品房纠纷不断涌现。面对现实中出现的如预售资金非法挪用、虚假广告、房屋质量不合格、延期交房等违规、欺诈行为,如何作出正确的法律价值判断,平衡各方主体的利益,成为了房地产市场继续健康发展道路上不得不面对的重大课题。由此而来的商品房预售制度的存废问题也引起了专家学者、各界人士的广泛探讨与研究。本文除绪论和结束语外,共分五个部分,主要内容如下：第一部分,介绍了商品房预售制度的产生、发展及其特征。商品房预售作为一种特殊的买卖交易形式,具有预售条件的法定性、预售标的的特殊性、法律关系的复杂性、较强的国家干预性以及较大的风险性等特征。第二部分,以世界各国及地区对商品房预售监管宽严程度为标准,划分为严格的预售监管模式和较为宽松的监管模式。通过对这两种监管模式中代表国家立法成果的介绍和分析,总结出值得我国学习和借鉴的宝贵经验。第三部分,针对我国商品房预售的制度设计,在介绍我国商品房预售制度现状的基础上,剖析我国现有制度存在的缺陷,主要有预售许可条件偏低及市场退出机制的空缺、对预售资金的监管不力、预告登记的管理不够完善以及商品房预售广告管理缺位等。第四部分,从实践和理论两个方面阐述我国商品房预售制度的缺陷所引发的问题,充分考虑商品房预售制度存废分歧中利益各方的理由和意见,对商品房预售制度的存废提出自己的观点,认为目前全面取消商品房预售制度时机还不成熟,因此,进一步完善商品房预售制度是我们根据当前形势做出的最好选择。第五部分,提出完善我国商品房预售制度的构想：第一,完善我国商品房预售主体的市场准入及退出制度：第二,完善我国商品房预售资金的监管制度；第三,健全我国预售商品房的预告登记制度；第四,建立、健全我国商品房预售的信息披露制度
[Abstract]:Pre-sale of commercial housing refers to the act of a real estate development enterprise selling a commercial house under construction to a buyer in advance and paying a deposit or a house price by the buyer. The pre-sale system of commercial housing originated in Hong Kong, China. As an important way for real estate developers to raise funds and ease the pressure on buyers to pay for housing, it develops rapidly and is adopted by many countries and regions. In a certain period of time, the pre-sale system of commercial housing can promote the sale of commercial housing in China. The promotion of the real estate industry, the development of the financial industry and the improvement of the housing conditions of the common people have all played a positive role. However, due to the shortcomings of the system itself, The imperfection of relevant laws and regulations in our country and the problems of pre-sale supervision make a large number of commercial housing disputes emerge constantly. In the face of the reality, such as illegal misappropriation of pre-sale funds, false advertisements, unqualified housing quality, etc. How to make a correct judgment on legal value and balance the interests of all parties, It has become an important subject that the real estate market has to face on the road of continuous and healthy development, and the problem of storing and abolishing the pre-sale system of commercial housing has also aroused the extensive discussion and research of experts and scholars and people from all walks of life. In addition to the introduction and conclusion, this paper is divided into five parts, the main contents are as follows:. The first part introduces the emergence, development and characteristics of the pre-sale system of commercial housing. As a special form of trading transactions, the pre-sale of commercial housing has the legal nature of pre-sale conditions, the particularity of the subject matter of pre-sale, and the complexity of legal relations. Strong national intervention and greater risk and other characteristics. The second part is based on the standards of wide and strict supervision of commercial housing pre-sale in various countries and regions of the world. It can be divided into strict pre-sale supervision model and looser supervision mode. Through the introduction and analysis of the representative national legislative achievements of these two regulatory models, the valuable experience worthy of our country's study and reference is summed up. The third part, aiming at the system design of the commercial housing pre-sale in our country, on the basis of introducing the present situation of the commercial house pre-sale system in our country, analyzing the defects of the existing system of our country, there are mainly the low conditions of the pre-sale license and the vacancy of the market exit mechanism. The supervision of pre-sale funds is weak, the management of pre-sale registration is not perfect, and the management of pre-sale advertisement of commercial housing is absent, etc. In the 4th part, the author expounds the problems caused by the defects of the pre-sale system of commercial housing in China from two aspects of practice and theory, and gives full consideration to the reasons and opinions of all interested parties in the differences between the pre-sale system of commercial housing and the abolition of the pre-sale system. The author puts forward his own viewpoint on the storage and scrapping of the pre-sale system of commercial housing, and thinks that the time is not ripe to abolish the pre-sale system of commercial housing in an all-round way. Therefore, it is our best choice to further perfect the pre-sale system of commercial housing according to the current situation. In the 5th part, the author puts forward the ideas of perfecting the pre-sale system of the commercial housing in China: first, perfecting the market access and withdrawal system of the main body of the pre-sale of the commercial housing in China; second, perfecting the supervision system of the funds for the pre-sale of the commercial housing in our country; third, Improve the advance registration system of commercial housing in China; 4th, establish and improve the information disclosure system of the advance sale of commercial housing in China
【学位授予单位】：西南交通大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.29;F293.3

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