A Study On The Contract Rescission Right Of The Developer After Performing Guarantee Liability When Housing-Purchasing With Loans

In commercial housing trading,homebuyers mostly apply for bank mortgage loans after paying part of the payments,while developers provide joint and several guarantees to banks in mortgage loans.Prior to the registration of commercial housing mortgage,once the buyer ceases to pay,the mortgage loan contract will be cancelled by the bank,and the developer will bear the joint liability of early payment of the loan.This is quite passive for developers,so does developers have the right to defend their rights by rescinding contracts for the sale of commercial housing? To this problem,the domestic academic circles have not formed a unified view,it is also very controversial in judicial practice,the judicial precedent of supporting or objecting to the contract rescission is not few.At present,the study of this problem by domestic scholars has not formed a more thorough work,which is only discussed in the journal references and lacking the special systematic elaboration.The study of financial loan payment disruption in foreign countries is in-depth,while the study of rescission right of the contract for sale of commercial housing after loan payment disruption is not through enough.Empirical research methods are adopted in this paper,starting from the analysis of the practice of commercial housing contract disputes in China,the paper analyzes the practical problems and obstacles faced by developers to realize the right to rescind the contract in the condition of the buyer terminating loan payment,and explores the necessity and practical significance of entitling developers the right to rescind the contract,and makes beneficial theoretical exploration for the legal construction and perfection on this problem in our country.This paper is divided into Introduction and Five-Part Text,about 32,000 words.The introduction mainly describes the background,significance and thinking of this thesis.At the same time,it gives a brief introduction to the current situation of the domestic and international research on the rescission right of commodity house sales contract under the circumstances of mortgage payments breaching.In the first part,from the practical case,the dispute over the rescission right for commercial housing sales contract in the context of “the house buyer stopping loan payments”.From the case,the specific problems and disputes existing in the different judgments for the same case in the first and second instance are analyzed.The second part,about the application of the relevant contract system in the sale of commercial housing.Through the analysis of the multiple legal relations in the loan purchase transaction,the relationship between the commercial housing sales contract and the loan contract is analyzed.Apply the German system of associated contracts,The relationship between commercial housing sales contract and loan contract is analyzed theoretically from two aspects of loan purpose relevance and economic integrity.It also points out that the correlative system is a breakthrough to the relativity of current contract,Because the associated contract system is only applicable in the field of credit consumption,combined with the current situation of our country,this paper points out the embodiment and deficiency of the associated contract system in the sale of commercial housing in our country.The third part introduces the exercise of the contract rescission right when the contract purpose cannot be realized.Through the combing of the "contract purpose" in China’s contract system,the paper analyzes and demonstrates the relationship between the contract purpose and the contract breach,rethinks the system of rescission in China,and seeks the theoretical logic support for the developer to exercise contract rescission right.The fourth part elaborates the necessity of entitling the developer with the contract rescission right in case of “the house buyer stopping loan payments”.Combined with the previous analysis and the current practice situation in China,the necessity and practical significance of granting the developer with the rescission right of commercial housing contract are explained.The fifth part expounds the proposal for developers to realize the contract rescission right.In response to the previous analysis,this paper proposes methods and recommendations to solve the problem of the sales contract rescission right realization after the developer has fulfilled the joint guarantee liability,from the aspects of the appointed rescission right,the statutory rescission right and the contract system improvement.