| As the legal pre-sale qualification of real estate development enterprises,the logic of Article 2 of the judicial interpretation of commercial housing sales contract seems to regard the effectiveness of pre-sale contract without pre-sale license as "invalid principle,exceptional effectiveness".A large number of judicial practices show that the people's court regards the pre-sale license standard as an effective compulsory standard,and the violation is bound to be invalid.However,the invalidation of the contract can not protect the contract interests of the buyer in advance,and even encourage the developers to take the initiative to resort to the invalidity of the contract to seek improper interests.Therefore,it is necessary to discuss the relationship between presale license and presale contract.In view of the fuzzy division standard between effective and administrative compulsory norms,and the problems of logic reversal and synonymous repetition in practice,it is necessary to jump out of the inertial thinking of defining the nature of norms for normative interpretation,in order to explore the normative purpose of pre-sale licensing,measure the benefits of norms and contracts,and use the principle of proportion to judge the necessity of invalidity of contracts.Through the interpretation of the normative conditions of pre-sale license,it is concluded that the pre-sale license is essentially related to the national land resource control,urban use planning and other public interests,and the state has the necessity of management.If there is no other low-cost and efficient control method,the pre-sale license system has the necessity of existence.However,the necessity of public law to regulate the pre-sale system does not mean the necessity of invalid legal acts.The regulatory purpose of the pre-sale license system is not only to protect the above-mentioned public interests,but also to combine with other regulatory systems of the pre-sale system,which together constitute the public law system effect of pre prevention,in-process supervision and post punishment to protect the rights and interests of pre purchasers.When the relevant mandatory norms can restrict the performance of the contract,the invalidation of the agreement between the two parties should be modest,so that the contract will not be invalid due to one party's violation of the law.System interpretation is to distinguish the conditions of obtaining pre-sale license from substantive factors without pre-sale license and procedural factors without pre-sale license.In the field of pre-sale of commercial housing,the most fundamental condition of pre-sale license is the planning license of construction land,which is the premise of obtaining other pre-sale conditions in the future.In violation of the public laws and regulations related to the use of land resources,there is a reason to determine that the contract is invalid;however,if other pre-sale conditions do not obtain the pre-sale license,it does not have the urgency of control and the necessity of invalid contract.In addition,according to the principle of distinguishing property law,the agreement of sale belongs to the act of burden,and the restriction of disposition right should not affect the effect of the act of burden.Through the above analysis,the influence of pre-sale license on the effectiveness of the contract should not belong to the absolutely invalid contract,and the relevant judicial interpretation fails to respond to the legislative purpose correctly,so it should be amended.The effectiveness of presale contract without presale license should be effective in principle,and giving the right to cancel the contract to the buyer can more protect the expected interests of the buyer.In order to better protect the rights and interests of vulnerable pre purchasers and give full play to the good benefits of pre-sale license,it is not only necessary to improve the supporting control of public law in the field of pre-sale,but also to properly protect the rights and interests of pre purchasers in private law.The law of the people's Republic of China on the protection of the rights and interests of consumers shall be applied to clarify the legal status of the consumers of the pre purchasers of commercial housing,to carry out the fraud of the pre-sale license to the development enterprises,to modify the current standards,and to apply the punitive compensation standard of less than three times of the losses suffered by the pre purchasers.To realize the unification of the purpose of public law regulation and the effect of private law. |
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