Legal Analysis In The Transfer Of Advanced Sale Commercial Housing

The article 46 of Law of the People’s Republic of China on Urban Real Estate Administration authorizes the State Department in China to formulate specific regulatory documents in the transfer of advanced sale commercial housing(also known as pre-sale commercial Housing).However the State Department in China has been not issued the corresponding administrative regulations. Departmental rules by Ministry of Construction and other six ministries and commissions, local regulations by local people’s congresses and local government regulations by the local government departments were drew up to regulate the transfer of pre-sale commercial Housing, but various provisions are inconsistent, even contradictory, causing confusion in the judicial practice.The paper makes existing laws, regulations and other normative documents as the basis and appropriate legal theory to support, so that It can give a clear explanation of the pre-sale of real estate to solute disputes reasonably in practice.In this paper, in addition to the introduction, epilogue, It includes four parts: case summary, the focus of the case and disagreements, legal analysis of the case, problems and suggestions in legal system of the transfer of advanced sale commercial housing.Part I is case summary. It introduces the disputes due to the transfer of advanced sale commercial housing. The contents consist of the basic circumstances of the case. At the same time, It also includes that the court identifies the nature of the act as the outlined transfer of contractual rights and obligations, and the contract signed by both parties is legitimate and effective. Because of the above premise, the court draws the appropriate verdict.Part II is the focus of the case and disagreements. It analyzes the main controversial focus of the quality of the case. It also elaborates different opinions and reasons on the case processing.Part III is legal analysis of the case. This section is the core of the paper that discusses two main issues. The first is the analysis of the legal nature of the act in the transfer of advanced sale commercial housing. Different views are clarified on the transfer of forward house legal nature, which have Property say, Special Rights say and Claims say. I agree with Claims say, and think the legal nature of the act in the transfer of pre-sale commercial Housing is the transfer of original contractual rights and obligations. The second is the analysis of the effectiveness of the contract in the transfer of pre-sale commercial Housing. For this problem, It exists two views, invalid say and valid say. Effective say is supported from the angle of the legislative intent, existing laws and regulations, the civil law concept, and economics.Part IV is problems and suggestions in legal system of the transfer of advanced sale commercial housing. For the problems on the provisions of laws and regulations in a systematic order, I intends to propose the harmonization of legislation that should clarify certain attitude towards the sale of real estate transfer issues. The legislation has to confirm the effectiveness of the contract in the transfer of pre-sale commercial Housing in order to safeguard the legitimate interests of the original pre-human, pre-buyer and transferee.