| Due to the rapid and sharp rise in housing prices,a large number of cases of breach of contract for the sale of houses in stock has occurred in large numbers in which the seller refused to perform the sales contract in order to ensure its own interests.After the dispute occurs,the buyer and the seller often believe that as long as the seller refuses to specific performance,the buyer can only ask for other liabilities for breach of contract.The results of the refereeing case of the Tianjin Municipal Court for the specific performance of the purchase of a house are also different,which needs to be studied.China’s "General Principles of Civil Law" and "Contract Law" stipulates remedies for the specific performance.because it best reflects the purpose of the parties to the contract initially concluded,it is in line with the principle of honesty and credit,so it should be vigorously promoted.Article 107 and 110 of the Contract Law of PRC respectively stipulate the positive and negative conditions for specific performance.However,due to the generality,the operational details in the trial practice are not uniform.In addition to the introduction and conclusion,the full text is divided into four parts.The first part mainly introduces the general theory about specific performance,and clarifies that specific performance is the best remedy when breach of contract occurs,and should be applied preferentially.The second part mainly discusses the appropriateness of using the online registration as a criterion for specific performance.Through the analysis of the nature of the specific performance and the collation and analysis of the real judicial cases,we draw a negative conclusion.The third part clarifies the preconditions and restrictions for the application of the specific performance in the disputes over the sales contract of houses in stock.In the fourth part,the analysis points out that in the dispute over the sales contract of houses in stock,the impact of counterargument right for simultaneous performa on the specific performance.In the procedure,it is suggested to draw lessons from foreign judgment mode of simultaneous performance of judgment.In the current judicial practice in Tianjin,the restriction that the plaintiff(buyer)must pay in full if he wants to appeal for specific performance is unreasonable.This restriction actually aggravates the burden of the observant party and is not conducive to the protection of the observant party,which violates the legislative intent and should be improved. |
