One of the interpretation of the commercial housing sales contracts, refers to the real estate development enterprises (hereinafter referred to as the seller) will be completed or not completed the sale and transfer of social housing to home ownership in the buyer, the buyer pays the price for the contract.

Core content: the scope of application of this judicial interpretation.

Interpretation: this form is the definition of the commercial housing sales contracts, the essence is the scope of application of this judicial interpretation. It is necessary to pay attention to affordable housing and underground shopping does not apply to this judicial interpretation.

Discussion: because of affordable housing and underground shopping (Civil Engineering) how to sale contract dispute applicable law?

First, in accordance with the agreed deal with the contract, the contract is not agreed, in accordance with the "contract law", "affordable housing management approach", "people's air defense law," "the people's air defense assets management regulations" and other relevant laws and regulations and policy. At the same time on some issues can be dealt with according to the provisions of judicial interpretation.

  

  

Article second the seller did not obtain permits for commercial housing units, and the buyer signed commercial housing sale contract, it shall be deemed as invalid, but obtain pre-sale permit in the prosecution of former, can be identified effectively.

The core problem of correcting effect: pre-sale contract potency and contract commercial housing.

The relevant provisions on the contract effect correction:

"Judicial interpretation of contract law" (a) ninthLaws and administrative regulations, the contract should apply for approval, or approval, registration procedures to take effect, in the first instance court before the end of the debate the party still fails to apply for approval of, or does not go through the formalities of approval and registration, the people's court shall determine the contract has not come into force.

Interpretation: "the judicial interpretation of contract law" (a) ninth of the correction effect of contract to determine the time for "a trial before the conclusion of the court debate," but the judicial interpretation of the validity of contract for the sale of commercial housing correction time referred to "the prosecution of former". The two reasons: 1, "rules of evidence" of time limit for adducing evidence is limited, if the correction time identified as "a trial before the conclusion of the court debate," means that a court before the end of the debate can submit evidence, have it conflicts with the "rules of evidence"; 2, related theories of civil litigation to ask the court to hear after the case, the procedure should be in a relationship, the constant, constant, constant action litigation request constant state. If the prosecution, legal relationship is still in a state of uncertainty, qualitative the legal relationship of the court to the will of the parties but also by the impact, will obviously affect the judicial authority.

  

Third commercial housing sales information for advertising and promotional offer invited, but the seller on the commercial housing development planning within the housing and related facilities for the description and promised to establish a precise, and the commercial housing sales contracts entered into and determine housing prices have a significant impact, it should be regarded as an offer. The description and the promise of even if not included in the commercial housing sales contracts, the contract should be regarded as the content, contrary to the parties, it shall bear the liability for breach of contract.

The core content: Sales of commercial property advertising as the contents of the contract conditions and civil liability.

Sales of commercial property advertising as the contents of the contract requirements: 1, the advertisement content is limited to "commercial housing development planning framework"; 2, the advertisement content "to determine the specific"; 3, the commercial housing sales contracts entered into and determine housing prices have a significant impact.

Discussion a: which of the following advertising content can be regarded as the contents of the contract? A, with a commitment to the garage; B, the door is the statement "three real Muzi mother door"; C, the statement "spring into people's homes"; D, 2000 square metres of leisure square, fountain built statement within the community greening rate of more than 40%; E, small shopping malls, supermarkets, statement of hospital, school, kindergarten and other supporting agencies complete; (not, because they do not belong to the scope of commercial housing development planning) f, claims to be the ideal home, the appreciation potential is limitless. (not, it is not specific; the second is a commercial boast, house should have identification ability)

Study two: if the developers continue to perform and to take remedial measures, not the actual loss, and cannot be determined, the specific amount of the purchase should be how to determine the claim? (can be in accordance with the purchase of 10% to 20% to determine the litigation request)

Fourth the seller through subscription, ordering, reservations to the buyer accepts the deposit as a contract for the sale of commercial housing guarantee, if not because of one of the parties conclude the commodity housing sales contracts, should be dealt with in accordance with the provisions of the law on deposit; can not due of the subject matter in both parties, leading to the failure to commercial housing the sale of the contract, the Seller shall refund the deposit to the buyer.

Core content: commercial housing in the subscription agreement deposit.

Discussion: because the parties did not agree to the terms of the contract, but failed to establish commercial housing sales contracts, the Seller shall return the deposit?

Here to analyze the formation reason of "not agree" on the terms of the contract.

In the current commercial housing transactions, "commercial housing sales contracts" and the supplementary agreement is usually provided by the developers in the form of contracts, and developers often in the format of the contract with a lot of "overlord clause", its purpose is to avoid some of the responsibility of their own, increasing the risk of buying. In this case, case failed to conclude the contract, the developer should refund of deposit.

Of course, does not rule out the purchase made unfair, unequal terms and failed to conclude the contract situation, in this case, the developer can not return of the purchase deposit.

Fifth commercial housing subscription, ordering, reservation protocol has "sales of commercial property management approach" the provisions of article sixteenth of the sale of commercial housing the main elements of the contract, and the seller has received the purchase in accordance with the agreement, the agreement should be identified as commercial housing sales contracts.

The core content: the sale of commercial housing for the book as a contract for the sale of commercial housing conditions.

"Sixteenth way" sales of commercial property management:

Commercial housing sales, real estate development enterprise and the buyer shall conclude a written contract for the sale of commercial housing.

Commercial housing sales contracts should specify the following contents:

(a) the name or name and domicile;

(two) the basic status of commercial housing;

(three) the commercial housing sales approach;

(four) way of fixing the price, and the total price, mode of payment, payment time;

(five) conditions of use and delivery date;

(six) the decoration, equipment standards commitments;

(seven) water supply, power supply, heating, gas, communications, roads, afforestation and other supporting infrastructure and public facilities and the commitment to the delivery of rights, responsibility;

(eight) public facilities construction and property ownership;

(nine) treatment area differences;

(ten) for property registration related matters;

(eleven) method of dispute resolution;

(twelve) the liability for breach of contract;

(thirteen) other matters as agreed upon by both parties.

Interpretation: the intention of this article is to improve the judicial interpretation of the legislation of commercial housing sales contract signing rate, promote the development of the real estate industry.

Article sixth the parties to the contract is not in accordance with the provisions of laws, administrative regulations on the procedures for registration, request that the contract was invalid, not support.

The parties agreed to handle registration procedures for the entry into force of commercial housing pre-sale contract, from its agreement, but if one party has performed its main obligation, the other party to accept except.

Core content: the registration or not does not affect the validity of the contract of sale.

Interpretation: the record of commercial housing sale contract registration of advance notice registration in nature, is to preserve the future change of the real property for the purpose of, once registered, the buyer gets the effect against third persons. But this registration is only administrative organs of the pre-sale of commercial housing for the administration behavior, effect is not involved in the contract itself.

Seventh of the demolition and the demolition in accordance with the ownership transfer form a minimum compensation for the agreement, residents who agreed to clear the location, use of a particular housing demolition resettlement compensation, if the demolition of the compensation and resettlement housing will be sold to third people, the demolition request priority in obtaining compensation and resettlement housing, should be supported.

The demolition request compensation for the relocation agreement, in accordance with the provisions of article eighth of this interpretation.

The core content: people were taken to the priority for housing property.

  

Article eighth under any of the following circumstances, lead to commercial housing sales contracts objective cannot be achieved, unable to obtain housing buyer can request cancelling the contract, the return of prepaid purchase, and interest, damages, and may request the seller to bear the responsibility of compensation does not exceed the prepaid purchase times:

(a) a commercial housing sales contracts, the seller did not inform the buyer of the housing and mortgage to third people;

(two) a commercial housing sales contracts, the seller and the housing sold to third people.

The core content: malicious breach of contract and punitive damages. This article is mainly on the first vendee rights relief provisions.

Case study: developers sell a house purchase, contract, prices for 300000 yuan, a breach of the contract should pay 10% of the total 1629 liquidated damages to the other party. After signing the contract, buyers pay the full purchase to developers, the developers of the housing to 400000 yuan (prices rose 100000 yuan) price sold to unwitting third people, and for the transfer procedures, the purchase by the signing of the purchase contract hire lawyers spent 2000 yuan. If you are the real people's lawyer, how do you propose specific claims in the lawsuit?

There is no dispute litigation request: 1, the two sides signed the purchase contract; 2, order the defendant to the plaintiff to return immediately to the purchase of 300000 yuan and interest; 3, order the defendant to compensate the plaintiff lawyers costs 2000 yuan and profit loss 100000 yuan; 4, order the defendant to the plaintiff to pay punitive damages of 300000 yuan.

The controversial claim: order the defendant to the plaintiff to pay default payments 30000 yuan.

Not to mention the penalty of 10% reasons: in this case the agreed "10% default payment", is to calculate way agreement on default loss. When people purchase request developers to pay legal fees, loss of 2000 yuan and profit loss 100000 yuan, show that the purchase in the calculation of default loss, no longer comply with the purchase of 10% ways of calculating the loss of this agreement. People can only purchase in the two calculation method to choose a default loss as calculated default loss standards, buyers can choose the results higher standards, but not all of that.

The other two stations in the developers point of view:

1, the purchase of people choose to terminate the contract can not be asked to pay default payments litigation request. In the non continuous contract, the effect of termination of the contract have retroactive effect, the contract was lifted from the beginning was of no effect. Therefore, in the selection of the termination of the contract under the condition, the effectiveness of the contract from the beginning to lose, and breach of contract is a contract has the effect as the premise, therefore in the termination of the contract under the condition of no payment default issues.

2, in the case of cancelling the contract, cannot demand compensation of expectant interest. Made available interests is to contract both sides continue to perform the contract as the premise, if one of the parties choose to terminate the contract, that the termination of the contract a party gave up the performance of the contract, namely the abandoned available interests, in this case, there is no available interests, the termination of the contract conditions next, cannot demand compensation of expectant interest.

  

  

Ninth the seller entered into commercial housing sales contracts, is under any of the following circumstances, cause the contract invalid or revoked, the lifting, the buyer may request the return of prepaid purchase, and interest, damages, and may request the seller to bear the responsibility of compensation does not exceed the prepaid purchase times:

(a) has not been deliberately concealed the pre-sale of commercial housing permits to prove the facts or providing false pre-sale permit;

(two) the sale of housing has deliberately concealed the fact of mortgage;

(three) deliberately concealing sold houses have been sold to third party or for the removal of compensation for housing facts.

The core content: fraud and punitive damages. This article is mainly on the second buyer (bear) rights relief provisions.

  

Article tenth the buyer to the seller and the third party malicious collusion, otherwise enter into a contract for the sale of commercial housing and housing will be delivered for use, make it unable to obtain housing on the grounds, requesting confirmation of the seller and the third person to enter into commercial housing sales contracts invalid, it shall be supported.

The core content: due to malicious collusion cause the contract invalid.

The provisions of this article shall have great difficulty in the actual operation, the key lies in the request of "malicious" bears the burden of proof.

  

On "the two sale (sell)"

1, eighth, ninth, tenth are involved in "a room two sell (sell)". "A two sell (sell)" contract in the effect, are the effective contract. Failure to obtain housing property buyers, can be in accordance with the provisions of the contract or legal responsibility developers default responsibility.

2, "a two sell (sell)" housing property is confirmed according to the following rules:

A, who handled the registration of transfer of property rights, registration for transfer of the property to obtain housing ownership.

B, in the absence of the transfer of property rights registration situation, usually for the filing of the registration of commercial housing sales contracts, for the record contract for the sale of commercial housing registered buyers who have priority in the ownership of houses.

In C, not for property registration and transfer of commercial housing sales contracts registration situation, housing delivery, have been used for buyers who have priority in the ownership of houses.

D, in the absence of the transfer of property rights registration, no commercial housing sales contracts registration, has not delivered for use cases, the signing of the contract prior to purchase, have priority in the ownership of houses.

E, belonging to the demolition resettlement housing, relocation of people enjoy the priority to the above a and D rules. In addition, the Ac rule in "collusion" exception.

  

Case study: a developer on the same house and has A, B two people signed a commercial housing pre-sale contract, the house belongs to the non demolition resettlement housing. If after the signing of the contract, the delivery of housing developers to use A possession, then B for the property permits, B legally obtained the ownership of the house, but the house is in the possession of the use of A, B by what means to achieve the possession of a house?

Note: the possession in order to have legal reasons as the standard, can be divided into the right to possess and unauthorized possession. Have an explanation on law plays as a right, if the lessee, borrower occupies the object belongs to the right to occupy. The opposite of possession without legal reason for unauthorized possession, such as a robber to loot possession is a kind of unauthorized possession. The legal effect of the two is, have the right to possess during the legal relationship continues to exist, the possessor has refused to others to demand the surrender of possession rights; and the unauthorized possession have surrendered possession obligations.

In this case, A is the possession of a house belonging to have the right to possess, possession is in the purchase contract signed with the developers as the basis. B to achieve the possession of a house, you must first remove between A and developers of commercial housing sale, the A has become the unauthorized possession, so as to realize the housing tenure.

In actual operation, the developers and A as a co defendant, proposes the following claims: 1, cancel the sale of commercial housing developers in the contract relationship between A and A; 2, to make housing, and delivered to the plaintiff.

Note: the tort can not be mentioned in this case.

  

  

Transfer eleventh of the housing tenure, as housing delivery, except otherwise agreed by the parties.

Risk property is damaged or lost, shall be borne by the seller before delivery, after delivery of the buyer; written notice by the people to buy the seller, rejected without justified reasons, the housing damage, the risk of loss from the written notice to determine the delivery date the buyer people assume, but otherwise or the parties stipulate otherwise.

Core content: the transfer of commercial housing in the delivery risk.

The provisions of the "contract law" on the transfer of risk

Transfer the ownership of 133rd subject matter from the delivery of the object, but the legal provisions or the parties have agreed otherwise.

142nd the risk of the subject matter is damaged or lost, shall be borne by the seller prior to the delivery of the object, by the buyer after the delivery, but the legal provisions or the parties have agreed otherwise.

The provisions of the "contract law" article two above to determine risk transfer with ownership transfer principle. For real estate, risk transfer delivery; for real property, the transfer of risk transfer of the registration.

Interpretation: the interpretation of the traditional risk shift theory breakthrough, the immovable property risk transfer as chattel transfer risk to deal with, also is the delivery of movables way as risk standard, its purpose is to protect the interests of developers. Its theoretical basis lies in the sale of commercial housing is usually the first sought after, permit, permit in the launch of this period of time, the housing is in the possession and management of real people, and some of the risks are to prevent by management, rights management, if developers lose control of housing, housing is difficult to effectively safeguard to prevent the occurrence of risks, in this case by the developers to assume the risk is biased, so the judicial interpretation to determine the transfer of risk in the commercial housing delivery rules. But the "delivery" is not equal to the "delivery", the effectiveness is not real right transfer, not confrontation third person.

Risk can be divided into "without responsibility of risk" (such as volcano eruptions, tsunamis) and "responsibility of risk" (such as risk is caused by one of the parties based). The risk in this article refers to "without responsibility of risk", if because of the risk of developers fault, belong to "the responsibility of risk". For the "responsibility of risk", in the transfer of registration formalities before, developers form of liability can be chosen in breach of contract and infringement; the transfer of the registration formalities, can require developers to assume liability for tort.

Discussion: this section "unwarranted" symmetrical "justification", then the purchase in the circumstances under which the real reason refused to answer right? Such as: Housing Water Leakage, not agreed water electricity, there are security risks, equipment and facilities are not in conformity with the agreed requirements, design is not reasonable, community greening rate did not meet the agreed requirements?

Twelfth as the main structure of the housing quality standards can not be delivered for use, or delivery of housing, housing quality by verifying the main structure is not qualified, the buyer requests rescission of the contract and compensation for losses, shall support.

The core content: the main structure of the housing quality unqualified may rescind the contract.

Interpretation: the main structure of the house usually includes the house foundation, column, beam, wall, floor and other weight-bearing space system or plane. If these parts quality problems arise, the other part of the construction quality again good also cannot ensure the quality and safety of the project. Therefore, the subject of substandard quality can be regarded as the fundamental breach developers, buyers can terminate the contract.

Article thirteenth of the housing quality problems seriously affect the normal residential use, the buyer requests rescission of the contract and compensation for losses, shall support.

The delivery of housing quality problems exist, in the warranty period, the Seller shall bear the responsibility for repair; the seller refused to repair or delay the repair within a reasonable time, the buyer can repair themselves or entrust others. Other damage caused during the repair costs and repair shall be borne by the seller.

The core content: treatment of house of quality defects.

Interpretation: housing quality defects is the main structure of the housing outside the roof waterproof engineering, ground floor, windows and doors project, engineering, electrical engineering, installation of pipeline, water pipeline for heating, the quality problems of cooling system engineering etc.. These problems can usually be taken to repair remedies. But living normal use in the serious influence situation, the house purchase purpose can not be achieved, so buyers can terminate the contract.

"Seriously affect the normal use of living," generally refers to the purchase of the purchase of housing serious quality problems, and the quality problem to repair measures, still can not guarantee that people purchase personal, property safety and the normal use of the living situation.

Discussion a: building design defects, whether to belong to the category of housing quality problems? The purchase should be how to remedy?

Housing design defects can be divided into two kinds, one is the housing design does not meet the requirements of the specification, another is the unreasonable design, two cases are all the consequences caused by the housing safety hazard or inconvenience. For developers, this problem should bear what responsibility, no provisions in the relevant laws and regulations, but also less the purchase contract agreement, the judicial interpretation is not involved. I think that, from a theoretical point of view, developers to purchase the deliverables meet design specifications and consistent usage of housing is the obligation of developers. Developers breach of this obligation, it shall bear the liability for breach of contract. Housing design defect and housing quality defects are similar, so the design defects can take account of this treatment.

Study two: how to deal with problems of purchase quality defects and design flaws found in the real or the housing?

In practice, some buyers who found in the next room housing quality defects and design defects, often will not take real against developers, some for the delay in real for months or even longer. But in practice, gain acceptance for registration certificate and have two books in the developers ("warranty" and "manual") and other necessary living facilities conditions, purchase delay real loss is often difficult to developers to recover.

I think, in the purchase of housing quality defects encountered or design defects, first of all, should be timely to the developers in the form of a written paper, and let the developers signed and sealed, fixed evidence. Secondly, it seriously affected the living use to judge the quality defects or design defects, if seriously affected the living use, shall refuse to housing, the developers do not take remedial measures in a timely manner, or take remedial measures still can not eliminate the impact of exercise the right to rescind the contract, should be promptly; if not seriously affect the residential use, and no other reason the termination of the contract, or the first real is appropriate.

The fourteenth houses the seller delivered the construction area of the construction area of commercial housing sales contracts with an area does not match, the contract has an agreement, in accordance with the agreement; the contract is not agreed or the agreement is not clear, according to the following principles:

(a) the area of error than the absolute value in the range of 3% (including 3%), according to the agreed contract price just settlement, the buyer requests to terminate the contract, shall not support;

(two) the area beyond the 3% error than absolute, the buyer requests the termination of the contract, the return of prepaid purchase, and interest, and should be supported. The buyer agrees to continue to perform the contract, the housing area of more than contractual area, the area within 3% error than in (including 3%) of Fangjiekuan by Buyer in accordance with the agreed price up, the area of error than the more than 3% Fangjiekuan assumed by the seller to the buyer, the ownership of the actual area of housing; less than contractual area, the area within 3% error than in (including 3%) Fangjiekuan and interest in part by the seller to the buyer, the area of error than the more than 3% Fangjiekuan by the seller to double the return of the buyer.

The core content: dealing with the housing area error.

Case study: developers to 3000 yuan / square meters sold to purchase a set of 100 square metres of housing, then the housing the actual area of 105 square meters. If the parties have not in the purchase contract agreed to the area error, the purchase also choose not to check-out, please purchase should be to the developers pay the purchase? (100100 * 3%) * 3000 = 309000 yuan

Case study two: developers to 3000 yuan / square meters sold to purchase a set of 100 square metres of housing, and has received the price 300000 yuan, then run down property permits, the house the actual area of 95 square meters. If the parties have not in the purchase contract agreed to the area error, the purchase also choose not to check-out, shall return the money to purchase without considering the developers the interest rates? 3000 x 33000 * 2 * 2 = 21000 yuan

  Case study three: developers to 3000 yuan / square meters sold to purchase a set of 100 square meters of housing, the contract also agreed to the area and the actual area of inconsistency, 1629 total amount. The actual size of the housing for the 80 square meters. Obviously, the agreed area and the actual area is too large, is the legitimate rights and interests of buyers can remedy? How to remedy? Divides two kind of situations: if a contract format terms provided by developers, may request the court to confirm the agreement is null and void; if it is a voluntary agreement, the purchase can display fair grounds to request to revoke or change this agreement.

Fifteenth according to the "contract law" in article ninety-fourth, if the seller delays the delivery of housing or the buyer delays payment, a reasonable time limit after being urged not fulfilled within three months, a party requests to terminate the contract, it shall be supported, except otherwise agreed by the parties.

The law does not stipulate or the parties have not agreed, theThe other partyAfter a reminder, a reasonable period of time to exercise the right to terminate for three months. The party has no right to terminate the exhortation, shall be exercised within one year from the date of occurrence of the rescission right in; overdue fails to do so, ending the right of rescission.

Core content: the exercise of right to rescind the contract period, the right to terminate the contract elimination period.

"Provisions on the right of rescission of contract law":

Ninety-fourth in one of the following cases, the parties may rescind the contract:

(a) be caused by force majeure to achieve the purpose of the contract;

(two) before the time of performance, a party expressly or by their actions that it will not perform its main debt;

(three) if a party delayed performance of its main obligations, a reasonable time limit after being urged not fulfilled within;

(four) if a party delays performing the debt or other breach of contract and can not achieve the purpose of the contract;

(five) other circumstances stipulated by law.

Article ninety-fifth the provisions of the law or the parties prescribe a period for exercising the right of rescission, at the expiration of the time limit, the extinguishment of rights.

The law does not stipulate or the parties have not agreed to exercise the right to terminate the time limit after being urged, within a reasonable time, fails to do so, the right to eliminate.

Interpretation: the exercise of rights must be limited, "contract law" article ninety-fifth is the exercise of right to rescind the contract in the time limit, the exercise of Rescission Right overdue, the eradication of the principle. But for the elimination of right of rescission is not clearly defined, become the loopholes in the law, the judicial interpretation is the supplement to this loophole. The exercise of right of rescission period is a scheduled period, cannot be extended, there is no suitable suspension or interruption.

Right to terminate the elimination system is justly protect the interests of the debtor. In a major breach of contract, rescission become the means of salvation, but if the creditor fails to ex long-term solutions, contract relationship is long-term in a state of uncertainty, the debtor is long-term in do not know whether to continue to perform the contract condition, make the debt in human choice becomes quite difficult, and the solution can be ex elimination system to solve this problem.

The legal consequences of ending the right of rescission is the contract must continue to perform the. Destroy the right of termination does not affect the validity of the contract, does not affect the creditors in accordance with the contract or in accordance with the law shall be investigated for responsibility debtor.

Case study: developers of commercial housing pre-sale contract signed with the purchase contract, the launch date is December 1, 2004, but until December 1, 2005, the developers still others, after the market downturn and the financing difficulties developers and other reasons, the developers gave up on the property. If the two sides did not on the rescission period agreed, the two sides did not urge each other, in this case, the interests of real people how to remedy? What can remedy? (that is, right of cancellation has been eliminated, but the debtor can not fulfil the situation appears, the rights and interests of creditors and how to remedy?)

In this case, the rescission right have been eliminated, therefore cannot be brought to terminate the contract lawsuit. But this does not affect the other liability for breach of contract purchase in accordance with the law for developers.

"Contract law" provisions of article 107th, if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract. This article determined the three kinds of remedies in the default case, which requires to continue to perform its obligations, to take remedial measures, or to compensate for losses.

In this case, for developers to continue to perform is not realistic, it can be considered to require developers to take remedial measures, or to compensate for losses. If there are other property developers, for developers to other projects can be considered equivalent to remedy the house.

In the absence of remedial measures, can only ask developers to pay compensation for the losses, while the property loss is mainly embodied in the purchase of loss and profit loss, but in determining the specific litigation request, should not be proposed cancelling the contract litigation request, should avoid "refund the purchase" expression, can be described as "order the defendant to compensate the plaintiff purchase loss X Yuan; can get profit loss x yuan."

Case study two: in the last case, if the developers in November 1, 2004 to purchase issued a notice to terminate the contract, please purchase is entitled to terminate the contract before December 1, 2005 to February 1, 2005 right?

Buyers can exercise the right to rescind. As long as a year of the period, the other party notice to terminate the exercise of right of rescission, termination right to eliminate the deadline shall be postponed accordingly three months.

Article sixteenth the parties agreed to the request on the grounds of breach of contract payments reduced, it should be to default payments exceed resulted in the loss of 30% for the standard appropriate reduction; the parties to the breach of contract caused by the loss of the request on the grounds of increased, should take the losses caused by breach of contract to determine the amount of the liquidated damages.

The core content: to adjust the amount of liquidated damages and adjustment of the standard.

"Contract law" the provisions of penalty:

Article 113rd if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the contract, thereby causing loss to the other party, the amount of compensation for losses shall be equal to the losses caused by the breach of contract, including contract can gain, but shall not exceed the party in breach the contract was foreseen or breach of contract may result in losses should have been foreseen by the.

114th the parties to a contract may agree that one party shall pay a certain amount of liquidated damages under the default to the other party, also can agree on a method for the calculation of damages for the loss resulting from.

Liquidated damages are lower than the losses caused, the parties may request the people's court or an arbitration institution to increase; the agreed liquidated damages is excessively higher than the losses caused, the parties may request the people's court or an arbitration institution to make an appropriate reduction.

The parties prescribed liquidated damages for delayed performance, the party in breach to pay liquidated damages, shall perform the obligations.

Interpretation: "contract law" article 113rd of the liquidated damages should be commensurate with the actual loss principle; 114th confirmed the agreed liquidated damages are too high or too low case, the default party may request the appropriate to reduce or increase the principle. But the "contract law" on the increase or decrease of the standard is not clear, the judicial interpretation has to be added.

In judicial practice, the referee organization is usually required by the requesting party for the actual losses amount to bear the burden of proof, in the actual loss is determined, as the standard to judge the agreed liquidated damages are too high or lower than the loss. If extension others, if the developers agreed liquidated too high, developers should be appraised for housing assessment agencies rent standards for housing, as a standard for judging the agreed liquidated damages are too high. And vice versa.

Case study: the developers of commercial housing pre-sale contract signed with the purchase contract, late others, developers should be a day to purchase to pay liquidated damages 200 yuan. After the purchase by developers late others lawsuit, ask developers to pay default payments according to the agreed. In the proceedings, the developers make the agreed liquidated damages are too high, asking the court to reduce the amount of default payment, after the assessment agencies assessment, to rent the house to 100 yuan. Excuse me, how should the court to determine the standard calculation in the case of default payment? In accordance with the 130 yuan / day (beyond the loss of part of the penalty was reduced to 30%)? Or in accordance with the 170 yuan / day (beyond the loss of part of the liquidated damages to reduce 30%)?

Seventeenth commercial housing sales contract is not agreed default calculating method of compensation amount or the amount of loss, damages or compensation for losses can be determined with reference to the following standards:

Overdue payment, in accordance with the unpaid purchase amount, calculated with reference to the provisions of the people's Bank Chinese financial institutions of interest on overdue loans standard.

Late delivery of housing use, in accordance with the relevant departments of overdue delivery of housing during the use of the publication or to determine assessment qualified real estate appraisal institution with lots of similar housing rent standards.

The core content: overdue payment, overdue others legal penalty calculation standard.

Eighteenth due to the seller, the buyer in the following expiration failed to obtain housing ownership certificate, unless otherwise agreed by the parties, the Seller shall bear the liability for breach of contract:

(a) the sale of commercial housing contract with the housing ownership registration deadline;

(two) the sale of commercial housing contract object has not yet built housing, since housing delivery date of 90 days;

(three) the sale of commercial housing contract subject matter for the completed housing, since the conclusion of the contract within 90 days from the date of.

No breach of contract or agreement is difficult to determine the amount of loss, can according to the total prepaid purchase, calculated with reference to provisions of the people's Bank of Chinese financial institutions of interest on overdue loans standard.

The core content: late rush to affirm and statutory penalty calculation standard.

This article "unless otherwise agreed upon between the parties", refers to the parties have agreed to do except special permit deadline.

About the processing problem:

Developers and real people under 1, the relevant laws and regulations in the processing of obligation.

A, the obligation of developers (assist processing duties): submission shall the developers submitted information, including: A, the initial registration information (i.e. total card)B, building surveying and mapping dataC, "commercial housing sales contracts" etc..

B, the purchase obligation (certificate of obligations of the subject: 1), submitted by the purchase of materials shall be submitted, including proof of identity, the purchase contract, payment vouchers; 2, the application for the registration of housing management authority; 3, delegate, shall submit a power of attorney.

C, both parties shall bear their respective required to pay taxes. The specific tax collection items and standards in Yuzhong District Housing stock commercial housing transaction taxes and charges levied as an example:

A total of housing transaction taxes and fees: 1.6%6 yuan / ㎡ 85 yuan value of the housing market. Among them:

Seller: transfer fee: 3 yuan / square meters; stamp tax: 0.05%

Buyer: transfer fee: 3 yuan / square meters; the stamp tax: 0.05%5 yuan / piece; the transfer of registration fee: 80 yuan / piece; the deed tax: 1.5%

Total non housing transaction taxes and fees: 8.1%5 yuan housing market value. Among them:

Seller: transfer of registration fees: 1%; transaction fees: 1%; the land value added tax stamp tax: 0.05%: 1%

Buyer: transfer of registration fees: 1%; transaction fees: 1%: 3%; taxes; Tax: 0.05%5 yuan / piece

Note: the above standard be adjusted tax items, and the exchange in the specific charge is not completely consistent.

The specific operation 2, commercial housing processing in practice.

Commercial housing processing in actual operation, often by those who purchase a developer for, some directly in the contract agreed by the developers for housing management authority certificate department, usually require reunification by the developers, not real people and personal application. In the next room, developers often require the purchase offer required to fill in the data, including housing ownership registration book and commissioned by the developer certificate proxy etc.. For specific information and both parties should submit to the requirements of the exchange, in the concrete operation of roughly the same, but not the same.

Nineteenth commercial housing sales contracts agreed or the "Regulations" City real estate development and management thirty-third provisions for more than a year the housing ownership registration deadline expires, the reasons of the seller, the buyer was unable to handle the housing ownership registration, the buyer requests rescission of the contract and compensation for losses, shall support.

The core content: for expiry certificate purchase may terminate the contract at the time.

Interpretation:

A, for expiry certificate and make the solution of exemption period.

The judicial interpretation of article fifteenth of the late launch and delay in payment of the termination of the contract time limit for exercising the right to make the rules, but this is due to the late processing and make provisions for the right of rescission. Specifically, this article is for expiry certificate and the statutory provisions solution ex period, this article does not involve the exercise of the right of cancellation for expiry certificate of the agreed period, therefore, when the two sides in the contract for expiry certificate cancelling the contract period is about timing, shall be in accordance with the contract, the purchase people have not agreed period in the exercise of right of rescission, termination right elimination. The two sides in the contract for expiry certificate cancelling the contract period no agreement, the termination of the contract term is in accordance with the regulations.

In this section "with the housing ownership registration deadline expires after more than a year" is the prerequisite for the exercise of right of rescission, but also for the exercise of the right of cancellation of the starting time of the provisions.

An ancillary obligations permit in the trading of commercial housing developer (relative to the delivery of housing developers), late rush did not reach a certain term does not constitute a fundamental breach of contract, but still did not permit in the year grace period, developers constitutes a fundamental breach of contract can be identified, so this article explaining to determine "for more than a year" housing ownership registration deadline expires, the purchase can exercise the right to rescind the contract.

At the same time, exercise of the right of rescission period is a scheduled period, also be fifteenth second on the right of Rescission in a year of this judicial interpretation (the following exhortation for three months) shall exercise the. Therefore, for expiry certificate and the legal right of rescission shall be handled during more than a year the housing ownership registration deadline expires after one year (the urge for three months) exercise, if not exercised within this period, ending the right of rescission.

Two, about the request developers to fulfil the assist limitation problem of certificate obligations.

In case of termination right elimination, real people can no longer request cancelling the contract, only requires developers to perform its obligations (permit provisions of relevant laws and regulations, developers only have to permit obligations). This request developers to perform its limitation problem of certificate obligations arise, for this problem, this article does not involve the judicial interpretation, judicial interpretation is not involved, the relevant laws are not involved. But in practice, developers late four or five years not to permit the prosecution to the court, how to deal with, understanding the differences of limitation in practice. But in the Supreme People's court people a court edited a book to be clear, the book argues for expiry certificate is usually caused by the seller's fault, the default behavior is the continuation and as a whole, so this case does not exceed the limitation of action.

  

The following three relates to real estate sales agent related issues.

Twentieth the seller and underwriter underwriting agreement entered into commercial housing contract, the seller will be the development and construction of housing by the underwriter to sell to sell on behalf of, the underwriting period of not selling houses, purchased by the underwriter in the underwriting price stipulated in the contract, unless otherwise agreed by the parties.

The core content: the determination of nature of commercial housing underwriting contract.

Twenty-first the seller to sell has been agreed by the underwriters underwriting underwriting housing, people ask the seller to pay for the damage, should be supported, except otherwise agreed by the parties.

The core content: developers in violation of the underwriting contract liability for breach of contract.

Article twenty-second the buyer for the commercial housing sales contracts and the seller disputes, the people's court shall notify the underwriter to participate in the litigation; the seller, the underwriter and the buyer on their respective rights and obligations are clearly agreed, determine the litigation status of each party according to the agreed content.

The core content: underwriter litigation status in the commercial housing sales contracts.

  

  

Mortgage loans five relates to the sale of commercial housing.

On the sale of commercial housing, legal relations between developers, buyers and banks:

A specific legal relationship:

1, developers and real people is the relationship between commercial housing sales contracts;

2, between the buyer and the bank is lending contract relationship;

3, developers and banks are usually secured contracts;

4, between buyers and banks also are the mortgage contract, the buyers will purchase houses mortgaged to the bank.

The relationship between the two, four of the contract:

A, the relationship of loan contract fails, the sale of commercial housing contract can be lifted, embodied in article twenty-third.

Destroy the relationship between B, commercial housing sales contracts, the relationship of loan contract may rescind, embodied in article twenty-fourth.

C is the main contract, loan contract, the guarantee contract and mortgage contract from the contract, between them is the main contract and the contract relationship.

Three, developers, buyers and banks in practice link:

To some extent, mortgage procedures become a service developers to provide to the purchase, developers will help buyers for mortgage loans procedures. Buyers to the bank loans by banks as buyers who purchase paid directly to the developers in the purchase, not to fulfill the repayment obligations, the developers to banks bear joint and several liability or bear the housing repurchase obligation.

  

Twenty-third commercial housing sales contracts, the buyer to guarantee loans payments, not because of one of the parties conclude the commodity premises secured loan contract and cause no commercial housing sales continue to fulfil the contract, the other party may request cancelling the contract and compensation for losses. For reasons not attributable to the parties for failing to enter into commercial housing loan guarantee contract and cause no commercial housing sales continue to fulfil the contract, the parties may request cancelling the contract, the Seller shall accept the mortgage principal and interest or refund the deposit to the buyer.

The core content: mortgage loans can not be the consequences of liability.

Interpretation: the provisions of this article and the provisions of the fourth principles is consistent. The cause of the contract can not mortgage contract mainly come from three aspects. First, from the developers. If developers credit changes, lose confidence in the banks of the guarantee ability. Secondly, from the purchase. If buyers provide proof of income and other false information or due to deterioration of the economic loss of ability to pay. Thirdly, from not attributable to developers and real people cause. The reasons for the first, from two two aspects, opposite party can request cancelling the contract and compensation for loss. For the reasons from third aspects, the Seller shall accept the mortgage principal and interest or refund the deposit to the buyer.

Twenty-fourth because of commercial housing sales contracts invalid or revoked, the lifting of commercial housing, the loan guarantee contract can not achieve the purpose of the request, the lifting of commercial housing loan guarantee contract, shall support.

Core content: the relationship between the contract for the sale of commercial housing and commercial housing mortgage loan contract.

Article twenty-fifth in loan guarantees for the payment of commercial housing sale contract where a party requests to confirm the sale of commercial housing contract is invalid or revoked, the termination of the contract, if the guarantee right is an independent right of claim third people claim, should be with the commercial housing loan guarantees contract dispute proceedings; non litigation request, only commercial housing sales contracts and disputes. Guarantor, commercial housing loan guarantee contract dispute be prosecuted, and the sale of commercial housing contract dispute proceedings.

The contract for the sale of commodity housing invalid or revoked, after the lifting of commercial housing, loan guarantee contract is rescinded, the Seller shall receive the principal and interest on the purchase loan and were returned to the guarantor and the buyer.

The core content: Processing mortgage bank in commercial housing sales contracts disputes in the litigation status and commercial housing sales contract relationship after eradication limit.

Article twenty-sixth the buyer does not guarantee in accordance with the commercial housing loan contract agreed to repay the loan, nor with the guarantor for commercial housing mortgage registration, guarantor, sued the buyer request disposition, commercial housing sales contract the buyer contract rights, it shall notify the seller to participate in litigation; Guarantor at the same time, sue the seller, if the seller for the purpose of commercial housing loan guarantees contract guarantees, shall be as a co defendant.

The core content: litigation status of developers in the mortgage loan contract disputes.

Article twenty-seventh the buyer does not guarantee in accordance with the commercial housing loan contract agreed to repay the loan, but has obtained the certificate of house ownership and management of the commercial housing mortgage registration and the guarantor, the mortgagee requests the buyer to repay the loan or mortgage housing priority of compensation, the Seller shall not be added as a party, but sell to provide assurance except.

The core content: litigation status of developers in the mortgage loan contract disputes.

Article twenty-eighth the interpretation shall be implemented as of June 1, 2003.

Occurrence of estate management law "implementation" of the people's Republic of China city housing after a contract for the sale of commercial housing dispute cases the interpretation is, after the promulgation of the first and second stages, the applicability of this interpretation.

Occurrence of estate management law "implementation" of the people's Republic of China city housing after a contract for the sale of commercial housing dispute cases, in this interpretation has been made prior to the promulgation of final appeal, retrial petition or decide to retrial according to the procedure of judicial supervision, the interpretation shall not apply.

"Implementation of the sale of commercial housing acts before the occurrence of the estate management law" of the people's Republic of China city housing, apply the old law, regulations and the "Supreme People's Court on the trial of 'real estate management law implementation of real estate development business case certain questions'".

The core content: the provisions of judicial interpretation of the execution time and about how to handle a case.