The Content Of The Obligations Of The Commercial Housing Subscription Agreement And The Continuation Of The Application Problem Research

Commercial housing subscription agreements are frequently used in the sale of commercial housing,and the related housing purchase disputes are gradually increasing.China's "General Principles of Civil Law","Contract Law" and "Civil Code and Contracts"(draft)have not made specific provisions on commercial housing subscription agreements.At present,only the Supreme People's Court has applied legal issues concerning trials of sales contract disputes.Article 2 of the Interpretation(hereinafter referred to as "Explanation of Sale Contracts")and "Civil Code and Contracts"(Draft)clarify that the legal nature of the commercial housing subscription agreement is an appointment contract,and breach of the contract of appointment shall be liable for breach of contract,but Whether the content of the obligation of the commercial housing subscription agreement is the same as the content of the commercial housing sales contract,that is,the content of the obligations of the parties to the commercial housing subscription agreement,and the application of the continuation of this breach of contract remedy are not clearly defined.What are the obligations of the parties involved in the signing of the commercial housing subscription agreement? At present,the academic circles mainly have three viewpoints of “negotiation” obligation,“contracting”obligation,and“content determination”obligation.The three viewpoints have their own advantages and disadvantages.The obligations of the parties to the agreement shall be based on the “ content determination ” obligation.Regarding whether the commercial housing subscription agreement default liability is applicable to continue to perform,the current academic circles mainly have two viewpoints: “affirmative” and “negative”.Both views have advantages and disadvantages.This paper believes that commercial housing subscription should be considered under the specific conditions.Theagreement continues to apply the liability for breach of contract.China currently stipulates the obligations of the parties to the transaction in the "Contract Law" and "Civil Code and Contracts"(draft),affirming that the liability for breach of contract in the appointment contract should be applied to continue to perform,and the Civil Code and Contracts(draft)also have Similar provisions,but the current regulations are too general,lack clear and specific standards,and cannot meet the needs of social development.China should improve the relevant provisions of China's commercial housing subscription agreement in the formulation of the Civil Code and Contract Compilation and related judicial interpretations.First,it should be stipulated that the content of the obligations of the parties to the commercial housing subscription agreement should be determined according to the classification of the appointment contract,and the criteria for the “integrity negotiation” and the obligation to “contract the commercial housing contract” should be clarified.Second,China should be clear in the legislation.The liability for breach of contract for the commercial housing subscription agreement shall apply to the continuation of performance,but shall not be used as the main remedy.Instead,the principle of fairness and efficiency shall be introduced in the event that the damages are insufficient to compensate the losses of the parties,and the remedies will continue to be implemented as supplementary remedies.Thirdly,under the premise of continuing to perform the supplementary remedy,it should also retain several restrictive conditions of Article 110 of the Contract Law(legally or in fact not fulfilled;the object of the debt is not suitable)On the basis of continued performance or excessive performance fees;creditors are not required to perform within a reasonable period of time,the increase of three may not apply to the restrictive conditions for continued performance:first,continued performance will harm the interests of third parties;second,the parties can Obtain the same effect as the contract performance;the third is to continue to perform The person caused particularly inappropriate damage or caused great unfairness.