Analysis Of The Risk Burden Rule In The Sale Contract Of Houses

The risk burden of the subject matter in the sale and purchase contract has been a concern,although " Contract Law of the People ’s Republic of China" on the risk burden rules have been defined,but did not clearly distinguish between movable and real estate.Most of the legal provisions and scholars will focus on the chase,rarely involved in real estate,which makes real estate due to incapacity caused by loss of specific rules,disputes can not be properly resolved.Housing as a typical real estate,Article 11 of “the Judicial Interpretation of Contracts for Commercial Housing Sale Clarification”clarifies the risk burden model of "Deliveryism",but there is still a great controversy as to whether the "Deliveryism" can solve the problem well for the sale and purchase contract.In order to find a set of more comprehensive housing sales contract risk burden rules to guide the judicial practice,this paper based on the basic theory of risk burden rules,explores the benefits and disadvantages of the "burden of delivery" in China’s housing sales contracts in combination with the study of the legislative model of foreign law on risk burden rules and the legislative changes of risk burden rules in China.This paper will be divided into four parts to discuss:The first part: From the Chengdu Heyi Investment Co.,Ltd.and Chen Haimei,Zhu Lvshan,Chen Chonggui housing sales contract dispute case,the problem of the housing sales contract risk burden rules surfaced.The second part :Focuses on the basic theory of risk burden rules,defines the connotation of "risk" and "risk burden" in risk burden rules.By examining the relationship between the risk burden rules and other related systems and analyzing the timing of the risk,the scope and application of the risk burden rules are clarified.This paper analyzes the legislative changes of the law of risk burden in American law and German law,explores the reasons for the replacement of “Ownershipism” by the method of historical analysis and comparison,and discusses the shortcomings of China’s risk burden rules in light of the legislative changes of China’s risk burden rules.According to the analysis,this paper argues that the risk should be defined as the price risk;the risk burden rules are arbitrary rules,the agreement has a priority effect;risk occurs after the establishment of the contract has not yet fully implemented before;China’s real estate risk burden model worthy of recognition,but can not solve all practical problems.The third part: Focuses on the risk burden rules of housing contract in the delivery mode,analyzes the case model under different situations by using the principle of risk and profit,and discusses the risk burden rules under the default situation,boldly put forward the general principles of the burden of risk,"Generalism of Deliveryism,the Ownership of the supplement,"The fourth part: Puts forward a series of perfect suggestions on the current risk burden rules of our country;from the point of view of the risk diversification,analyze the risk burden rules and the earthquake catastrophe insurance system,and make perfect suggestions on the dispersion mechanism;using the results of the previous analysis,the paper analyzes the dispute between Chengdu Heyi Investment Co.,Ltd.and Chen Haimei,Zhu Lvshan and Chen Chonggui,and tries to solve the problem.