First, the second intermediate people's court, the Beijing Railway Transportation Intermediate court;
District, county people's court, the railway transportation court:
"Guiding opinions of Beijing Higher People's Court on the trial of the law applicable to a number of housing sale contract dispute cases (for Trial Implementation)" has been the Municipal Higher People's Court Judicial Committee twenty-first (total 269th) meeting in December 13th to 2010 through discussion, is hereby printed and distributed to you, please carry out seriously implement. Have any problem during the implementation, please report to the Municipal Higher People's court people a court.
Notice is hereby given.

Guiding opinions of Beijing Higher People's Court on the trial of the law applicable to a number of housing sale contract dispute cases (for Trial Implementation)

To properly handle the housing sale contract dispute, judge and referee uniform scale, according to "people's Republic", "general principles of the civil law of the people's Republic of China Property Law", "contract law of the people's Republic of the people's Republic of China", "City real estate management law", "PRC Civil Procedure Law" and other laws and regulations and related judicial interpretation of the Supreme Court rules, combined with the practice of civil trial in our city, the formulation of the opinion.
The first referred to the views of the sale of housing, refers to the state-owned land within the area of the town of "second-hand housing" transaction.
Commercial housing sales contracts dispute cases, reference may be made to the views. But the law, the judicial interpretation provides otherwise, such provisions shall be applied.

(read: the opinion for the second-hand commercial housing sales introduction. At the same time, the developers of a room by reference to the provisions applicable)
The second parties signed the order book, purchase intent agreement have the basic conditions, to purchase price of housing, the price paid by the amount of the contract the main content, can be identified as housing sales contracts, except otherwise agreed by the parties.
Because of the reason can be attributed to a party that fails to housing sales contracts, the appointment agreement with terms of deposit, deposit penalty should be applied; no agreement the deposit clause, or the deposit penalty amount is insufficient to make up for the actual loss of the other party, the breaching party shall compensate the loss of reliance interest Shouyuefang therefore received. The observant party claims the contract may be the loss of benefits, the general will not support.

(read: the generalized explanation to the housing sales contracts. To meet the basic conditions of contract reservation protocol, are inclined to identify. Deposit penalties applicable to the principle of fault, the liability of culpa in contrahendo (part of the protection of the interests of the trust).
Article third "City real estate management law" article thirty-eighth (six) the provisions of a "not to receive a registration certificate management authority" housing shall not be transferable (specify: following estate, shall not transfer, (six) not to receive a registration certificate management authority;) does not belong to the nature, "the Supreme People's' some 'Court concerning the application of the people's Republic of China Contract Law Issues of interpretation (two)" the provisions of article fourteenth of the "mandatory provisions", should not be used as the legal identification of the housing sales contracts invalid.

(read: not to receive a registration certificate management authority still advocated the sale of effective transfer of property. City real estate management law to administrative law, does not affect the civil contract)
Article fourth for ownership housing for the subject to possible future contracts of sale, the court should not only with the seller in the contract have not obtain housing ownership on grounds that the sales contracts. The seller at the expiration of a contract has not made housing ownership, the buyer can not handle the registration of transfer of ownership of the building, it shall bear the liability for breach of contract.
Future may obtain ownership of houses as mentioned in the preceding paragraph, including not obtained ownership of the purchase of commercial housing and purchased by the application of economic housing management housing.

(read: undocumented houses, not achieved the housing should not identified as the only evidence of the sale contract invalid. Unable to transfer certificate, the seller bear)
Fifth the seller will be registered in its own statutory shared housing, without the share of more than 2/3 of the co owners by shares or all the common people agree, or on its own behalf transferred to others, the buyer is good, can be identified housing sale contract. The buyer in accordance with the "property law" the provisions of the first paragraph of article 106th (specific rules: no disposition to immovable property or movable property is transferred to the assignee, the owner is entitled to recover; except as otherwise provided by law, in accordance with the following situations, the transferee of the immovable property or movable property ownership:
(a) the assignee accepted the immovable property or movable property in good faith;
(two) transfer to a reasonable price;
(three) the transfer of immovable property or movable property in accordance with the law shall have the registration registration registration is not required, has been delivered to the transferee.) The bona fide acquisition of elements for the registration of the transfer of the ownership of the house, there are other people to recover the house, not support. 　　

The seller for the purpose of one of the spouses in the preceding paragraph, with the transfer of housing "behavior of the Supreme People's Court on certain issues concerning the application of the people's Republic of China Marriage Law '' interpretation of article seventeenth (a)" (two) paragraph (specify: the husband or wife is not needed in the daily life of the common property of husband and wife make the important decision, couples should be equal consultation, agree. People have reason to believe that the common meaning of both husband and wife, the other party shall not confrontation goodwill third party on the ground that don't agree or do not know.) The regulations, priority should be applied.

(read: the unauthorized disposition, bona fide, conflict of the two system solution. The acquisition in good faith. Internal validity against the third person is invalid)
Sixth the provisions related policies, regulations and restrictions listed transactions within the time limit the sale has to buy economic applicable housing sales contracts, the parties concerned, to support. Policies, regulations of the new regulations, such provisions shall be applied.
Betray a person to transfer the economic application of the housing the original purchase contract is signed before April 11, 2008 (including), the parties in the transfer of the housing has purchased the contract agreed in the restrictions listed transactions after the expiration of the period for re registration or at the first end of the court debate before the housing has been with the conditions listed transactions Housing for the transfer of ownership, contracts can be found effective.
The seller that the housing sales contracts invalid consequences, applicable "contract law" article fifty-eighth (specific provisions: the contract is invalid or cancelled, property obtained under the contract, shall be returned; should discount compensation is not possible or necessary to return. The party at fault shall compensate the other party for the losses, both parties are at fault, they shall bear their respective responsibilities.) Regulations, and consider the residential placement properly handle the issue, in that the buyer the amount of loss should consider the seller for housing appreciation benefits, the buyer the opportunity loss loss, contracting fault degree for factors such as the decoration Housing appended value and both sides, fair and reasonable to determine.

(read: the restrictions listed transactions for a period of compulsory administrative regulations, illegal and invalid for trading. Meet two conditions agreed upon expiration of the effective performance of transfer. To verify the effect of appreciation, accession, fault, loss of opportunity cost factors on)
Seventh the seller transfer has been purchased by the application of economic housing management of the housing, the housing sales contracts invalid that the parties, shall not support.

Interpretation: effective special provisions "of housing management in accordance with the affordable housing".
During the eighth housing mortgage duration, the seller (collateral) without the consent of the mortgagee, the transfer of mortgage housing, shall not affect the validity of a contract for the sale of housing.
The seller agreed in the contract performance period expires still fails to terminate the mortgage right obligation, the buyer can not handle the registration of transfer of ownership housing, the buyer requests the termination of the contract, and request the seller to bear the corresponding liability for breach of contract, it shall be supported; the buyer requested to continue to perform the contract, registration of transfer of ownership housing, the judicial interpretation still insist not to change, not to support his claim, however, buyer agrees and can generation except for debt and terminate the mortgage right.
According to the specific circumstances of the case the court may consult the mortgagee's opinion, when necessary, can add the mortgagee as the third party without independent claim in litigation.

Interpretation: unresolved charge transfer, without the bank agreed to the sale, effective. Unresolved charge, can not transfer, may terminate the contract. Unresolved charge, does not support the performance of transfer. The buyer solution can transfer.
Ninth the seller who has been entitled to state organs to take the attachment measures of housing transfer to others, the sale contract invalid, but the corresponding right to state organs or the application of coercive measures people the right to consent to the transfer, or termination of a court debate before the compulsory measures has been lifted, can be identified valid contract.
The seller has the right to transfer housing, the state of the housing authority to seize and other compulsory measures, does not affect the validity of contract for the sale of housing. The contract expiration clockwise to not compulsory measures the seller of the lift, the buyer can not handle the registration of transfer of ownership of the building, content processing may refer to the provisions of the second paragraph of the eighth views.

Interpretation: the first seal, after the transfer, sale invalid. The applicant agrees to transfer the effective. Transfer first, after the seizure, the effective transfer. Does not support to transfer. The buyer solution can transfer.

Article tenth the housing rights of people on the basis of "property law" the twenty-eighth to the provisions of article thirtieth (specific provisions for twenty-eighth by the people's court, the Arbitration Commission of the legal document or the requisition decision of the people's government, a real right is created, altered, transferred or extinguished, since the legal document or the requisition decision of the people's Government shall come into effect upon the effectiveness. Twenty-ninth due to inheritance or bequest, since the beginning of inheritance or bequest effect. Thirtieth as the legal construction, the demolition of houses in the act of real right is created or eliminated, it shall come into effect upon the accomplishment) Access to housing ownership, not to declare that the transfer of housing registration, shall not affect the validity of a contract for the sale of housing. The buyer registered the transfer of housing ownership, the review claims shall be supported, the court shall the right to housing housing registration to his name, to the buyer for the registration of transfer of ownership.

Interpretation: the basic legal relationship, legal documents, inheritance, bequest, requisition decision of the legal construction, the demolition of houses, processing of subsequent assignment: the buyer sued after the verdict form.
Eleventh the seller for marriage, relocation and other reasons to buy alone enjoy housing ownership, their spouses, other relatives or demolition resettlement for marriage, kinship or demolition policy has the right to live of the housing, and the formation of social fact, people living with the seller to make houses without their consent, violation of its housing rights and interests the grounds, for recognition of the housing sales contracts invalid, does not support. But the rights of people living should be protected by law.

Interpretation: the living rights and ownership of different. To protect the living rights, does not represent a living person disposition. Living without a party to the contract, contract is valid.
Between the twelfth parties will transfer the same housing sales contracts signed number respectively, about the inconsistent housing price, the mode of the performance of this contract, the parties dispute, the parties should be based on the real meaning of the contract agreed to continue the performance of. For the avoidance of tax collection and management, the existence of cheating loan behavior in the sale of housing, when necessary, together with the relevant administrative departments shall be handled suggestions.

Interpretation: a real agreements: authenticity principle. Avoid Piandai can provide legal advice.
Thirteenth the seller on the same housing sales contracts were signed copies, in the contract are effective premise, buyers who want to continue to perform the contract, should be in accordance with the following sequence determines the performance of the contract the buyer:
(1) for registration of transfer of ownership of the building;
(2) are not for the registration of the transfer of housing ownership, have actual possession of housing;
(3) are not for the registration of the transfer of ownership housing, and housing is not lawful possession, should consider the buyer actual payment amount and successively, whether for the sequence of factors, sign contract, fair and reasonable to determine.
The buyer in one to sue for the seller to continue to perform the contract, the seller to housing has been transferred to others for a plea, the court according to the specific situation of the case to decide whether to add other buyer as the third party to participate in the litigation; other buyer shall mention lawsuit demands continued performance of the contract, should be based on processing the principle of coordination.

Interpretation: a real number sequence to sell, transfer.
Article fourteenth housing after several sales, are not for the transfer of registration, the final buyer before hand to sell someone accused lawsuit, requirements for registration of transfer of ownership of the building, the court may in accordance with the application of or according to the case of additional registration rights (first hand the seller) to participate in the proceedings as the third man, after review claims shall be the ruling parties in turn can support, registration of transfer of ownership housing, except otherwise agreed by the parties.
To participate in other seller intermediate transfer, the court can according to the specific situation of the case to decide whether to append it to third.

Interpretation: a real multiple circulation. In order for the registration of the transfer of decision.
Article fifteenth the parties agree that one party in the name of others to buy houses, and housing will be registered in the name of others, borrow real enjoy housing rights and interests by celebrities, celebrities on the basis of contractual registration (celebrity) for registration of transfer of ownership of the building, to support. However, the housing for registration of the creditors seized or other reasons can not handle the transfer of registration in accordance with the law, or to the interests of the bona fide transactions third except.
To provide a party evidence that the housing buy investment relationship does exist, but not enough to have registration agreement between the two sides of the proof, claims that housing to all its or registration for the transfer of housing ownership registration, the registration shall not be supported; to separately claim of creditor's rights investment, should be based on the Contribution Property in accordance with the relevant legal provisions.

Interpretation: support registration of internal validity. Only by investment relationship can not be proved by name registration claim ownership.
Article sixteenth by celebrity in violation of relevant policies, regulations, by name to buy affordable housing policy and housing security, registered in the name of others, borrow housing to all its celebrity advocate confirmation or between the two sides agreed requirements for registration registration of transfer of ownership of the building, are generally not supported.

Interpretation: to circumvent the law and policy, to lend him the names of low-income housing purchase policy, is invalid.
Article seventeenth the registration will be registered under its name housing unauthorized transfer to others, by celebrity with its the enjoyment of housing real rights grounds, asked to confirm the sale contract invalid, does not support, but by celebrities can prove that the buyer knows or should know that housing exist except by name registration. The buyer, by name to per capita demands continued performance of the contract, can consult the opinions of thirteenth the provisions of the first paragraph processing.

Interpretation: the transfer of the housing contract to the registration of real human rights qualification, borrow celebrity may not be against the validity of the contract, unless it is proved that the buyer malicious. The buyer priorities by name to fulfill the transfer of people and the per capita.
Article eighteenth "property law" the provisions of article 106th (106th provisions without the right of disposal will immovable property or movable property is transferred to the assignee, the owner is entitled to recover; except as otherwise provided by law, in accordance with the following situations, the transferee of the immovable property or movable property ownership:
(a) the assignee accepted the immovable property or movable property in good faith;
　(two) transfer to a reasonable price;
(three) the transfer of immovable property or movable property in accordance with the law shall have the registration registration registration is not required, has been delivered to the transferee.
Assignee in accordance with the provisions of the preceding paragraph made of immovable property or movable property ownership, the original owner has the right to dispose of people without a request for damages.
The bona fide acquisition of other property, according to the provisions of the preceding two paragraphs)
No right to dispose of the housing mainly consists of the following circumstances:
(1) non juristic acts of real right alteration to obtain housing ownership based on human rights, but not to declare the registration, housing registration in the name of others, in its own name registration unauthorized punishment housing;
(2) for housing registration errors, resulting in the original record registration of house ownership eliminated, produced a new registration rights registration in its own name, unauthorized disposition of housing;
(3) the couple are common and other statutory housing a total of only registered in some common name, registration without accounted for more than 2/3 of the co owners by shares or all the common people agree, unauthorized disposition house in his own name;
(4) the seller the transfer of housing and for the registration of ownership transfer, the sale contract is confirmed invalid or revoked, lift, not yet registered for ownership registration reply, people (the buyer) to dispose of housing in its own name;
(5) other unauthorized housing situation.

Interpretation: 4+1 case to explain the Property Law Article 106 unauthorized disposition.

Article nineteenth "property law" the provisions of the first paragraph in 106th application should be understood as follows:
(1) the housing acquisition in good faith "bona fide" criteria: buy records about the registration of property rights to be trusted housing registration book, do not know the seller without the right of disposal is presumed to buy by human kindness, but there is evidence that the buyer knew or due to gross negligence, not housing register in the registration error or dissent except for the existing register registration. The rights of indigenous people to buy houses by the burden of malicious.
(2) the "transfer" to the reasonable price refers to the transfer of housing sale transactions at reasonable prices between the two sides, and the buyer has actually pay for all or part of the housing price.
(3) the house of bona fide acquisition to home ownership has been transferred to the buyer's name registration for elements. Housing for the transfer of registration but not yet delivered does not affect the composition of bona fide acquisition, but this fact can be used to judge the buyer is one kind of factors.

Interpretation: the registration of the judgment to housing for good (presumed). The original owner of malicious bear the burden of proof.
Article twentieth housing sales contracts signed, the seller did not turn to the buyer for the registration of transfer of ownership housing, the buyer the right to housing complaints filed, housing to all its demands that, the court shall exercise the right to release tomorrow, inform the alteration shall be litigation request to the seller for the registration of transfer of ownership, the buyer do not change, request the proceedings, shall not support.

Interpretation: the sale contract, performance is not for the transfer, not right, request for transfer.
Article twenty-first housing sale contract, Party constitutes a fundamental breach of contract, the other party shall have the right to terminate the contract, the breaching party shall not enjoy the right to rescind the contract. If can not cause resistance or change of circumstances, the contract can not achieve the purpose of the contract, both parties shall have the right to terminate the contract.

Interpretation: fundamental breach of contract, the other party shall have the right to terminate only. Without force majeure or change of circumstances both parties have the right to.
Article twenty-second housing sales after the signing of the contract, one party does not agree to continue to perform, willing to bear the corresponding liability for breach of contract rescission of the contract price, and the other side to continue to carry out the review, continue to perform the contract does not exist practical difficulties, the court shall both sides continue to perform the contract, but the contract otherwise agreed with "or cancellation deposit etc. under any of the circumstances prescribed in contract law" article 110th (rule 110th if a party fails to perform the non pecuniary debt or non monetary debt obligation does not comply with the contract, the other party may require performance, except for the following circumstances: (a) in law or in fact can not perform; (two) the subject matter of the obligation is unfit for compulsory or the cost of performance is too high; (three) the obligee does not require performance within a reasonable time.) Except.

Interpretation: the decision to continue performance principle, unless there are practical difficulties or cancellation deposit "can't" or "not suitable for" not required ""
The twenty-third party in housing sales contracts on the nature of the deposit agreement is not clear, should not be regarded as a cancellation deposit.
Housing sales contracts agreed at the same time understanding agreed and damages for breach of contract, a party constitutes a breach of contract, in the contract when the conditions are fulfilled the cancellation deposit penalties and penalty can also apply.

Interpretation: restrictive interpretation "cancellation deposit". At the same time agreed cancellation deposit and liquidated damages and.
Article twenty-fourth housing sales contracts signed after a party, because of fundamental breach the objective can not be another party to enter into a contract, the other party to terminate the contract, and request the party in breach compensation for loss, post housing resale profit loss can get profit loss, should be appropriate to support, except otherwise agreed by the parties.
Can get profit loss calculation in the identification and, should the observant party advocated the benefits can be deducted the observant party fails to take reasonable measures to improper expansion loss, the other party has fault caused by the loss, the observant party so the benefits and the observant party benefit requires the expenditure of the necessary transaction cost, and considering the the other party's performance to determine such factors.

Interpretation: fundamental breach of contract, the rescission of the contract, the calculation of attainable interest (as appropriate)
Article twenty-fifth a contract for the sale of housing is not established, is confirmed invalid or revoked, the trust contract valid induced damage a party to require the other party to the reliance interest compensation losses, shall support. The reliance interest losses include the damage and the loss of interests (party trust contract established under other lucrative contract lost the opportunity loss etc.), amount of compensation for damages not to exceed the performance benefits.

Interpretation: the trust benefit protection.
Article twenty-sixth lessor housing transfer to third, against the right of preemption of lessee, the lessee requests the judgement of the established the sale contract with the lessor and the third people in the same condition, the lessor is the registration of transfer of ownership housing, after review the lessee to purchase housing expressed their true meaning, and have the contract performance ability to support his claim, the court decision, and the lessee to pay housing price within a reasonable period of time for the same conditions, but the law, judicial interpretation unless otherwise stipulated. The court may according to the actual situation of cases require the lessee to provide corresponding guarantees to prove its performance of the contract capacity in the process of trial.
The lessee only Court confirmed that the housing has the priority to purchase requirements in the proceedings, and does not require the exercise the preemptive right, the judicial interpretation still insist not to change, to the lessee shall not support the claim.

Interpretation: the right of preemption protection: not sure, only exercise. The true meaning of the contract and have the ability to.
Twenty-seventh housing intermediary for the contracting house ownership status and other related matters and for contracting parties are actively investigating and truthful reporting obligations.
Housing intermediary institutions in violation of the obligations of faithfulness, seriously damaging the interests of the client, not necessary expenses require the client to pay intermediary fee and brokerage. The client has the loss, the housing intermediary institution shall bear the corresponding liability for damages.

Interpretation: the intermediary for the ownership status, capacity to contract the obligation of report. Violation of the obligation, harm the principal's interests shall not be required to pay the cost of intermediary services.
Article twenty-eighth in the sale of housing and other non ownership disputes in civil cases, one party to the other party as evidence of ownership housing register and provide the certificate of ownership of objection, the court in principle only for housing registration review the authenticity of the book and the certificate of ownership form, verified, can be used as evidence in civil procedure the use of.

Interpretation: Court of non ownership dispute, in the form of review shall prevail.
Twenty-ninth a lawsuit brought for the sale of housing contract disputes, in accordance with the principles of "civil law" article twenty-fourth of the contract dispute jurisdiction (the provisions of article twenty-fourth a lawsuit brought on a contract dispute, the defendant has his domicile or the contract under the jurisdiction of the people's court.) To determine the jurisdiction.

Interpretation: the jurisdiction of the court house sale contract.
Article thirtieth the opinions shall be implemented as of the date of issuance.
The specific provisions of this opinion and new laws, regulations and judicial interpretations inconsistent, not to implement the relevant provisions of these opinions.
A second case, after the implementation of the views have not yet concluded, the applicability of this opinion; the views already before the implementation of final appeal, retrial petition or decide to retrial according to the procedure of judicial supervision, not applicable this opinion.