On The Perfection Of China’s Commercial Housing Presale System

With the booming development of real estate market and the deepening of housing system reform,the pre-sale of commercial housing has become the most important sales mode in China.However,while the pre-sale gives full play to the advantages of financing,its disadvantages are increasingly obvious.Developers have huge advantages in capital,connections,knowledge and other aspects.In order to grab more profits and graft development risks,they often take advantage of their strong position and the asymmetry of transaction information to infringe on the buyers.In addition,developers through bank lending and pre-sale financing these two means,under the double leverage of development and expansion,capital chain has a great risk.And the buyer in the advance sale of the house payment without any protection,the two sides of the risk bearing mechanism serious imbalance.In recent years.with the changes of policies and market environment,these problems have been amplified,and the disputes and problems related to the pre-sale of commercial housing have been increasing year by year,posing a severe challenge to the protection of the rights and interests of buyers.In practice,the legitimate rights and interests of the buyer are often infringed.The developer’s delayed delivery is the most common infringement,but the harmfulness of delayed delivery is small.Through the analysis of commercial housing pre-sale dispute cases in practice,and combing the court’s thinking of judgment,it is found that the following situations cause the biggest loss to the buyer:The first is the developer fraud,including subject qualification fraud,mortgage fraud and illegal sale of commercial housing,etc.The subjective malignancy of fraud is relatively large,such as the second sale of housing,post-sale mortgage and other behaviors,may result in the buyer being unable to acquire ownership of the commercial property.The second is false advertising,although false advertising exists in a variety of transactions,but because there is no physical reference in the pre-sale,so more confusing and hidden than the general transaction.Many developers play word games on price,and make articles on the traffic location,environmental conditions and real estate types of commercial housing.The third is that the standard terms are set unfairly,the rights and obligations in the pre-sale of commercial housing are complicated,and developers often use standard terms to evade responsibility.The fourth is the bankruptcy of developers and the rotten tail of commercial houses.At present,many developers in China’s real estate market are expanding wildly,and there are more and more cases of capital chain fracture.The current situation and system design of the laws and regulations in the United States and China’s Hong Kong and Taiwan can provide reference for us to explore the perfect path of the pre-sale system of commercial housing.The pre-sale system in the United States mainly solves transaction risks through sufficient pre-preventive design.There are strict procedures in the construction,sales and occupancy stages,and the information disclosure is comprehensive and updated in time.The buyer does not have to pay the house price in advance,and the deposit is kept by the third-party escrow account.The mechanism of risk sharing between buyer and seller is perfect,and there is almost no infringing operating space for developers.China’s Hong Kong developers have a h igher threshold,pre-sale conditions are also very strict,in the development of capital investment,land mortgage value,deposit number and other aspects have strict provisions.In addition,Hong Kong lawyers are involved in the entire process,from pre-sale to commercial property registration,dealing with the size of the contract and monitoring the funds and the behavior of both parties.Taiwan implements the payment middleman system for pre-sale funds,and actively promotes the development of real estate securitization,enriches the financing means of developers,and solves transaction risks through the construction manager system.China’s current commercial housing pre-sale system and its supporting laws seriously lag behind the objective needs,the rights and interests of buyers have not been effectively protected,in order to fully protect the rights and interests of buyers,it is necessary to improve the pre-sale law and innovate the pre-sale system,In order to resolve transaction risks and balance the rights and interests of buyers,this paper opens up ideas and points out the path of improvement from the aspects of legal system construction and practice.The construction of the legal system mainly includes strengthening the supervision of pre-sale funds,improving the pre-sale registration and filing system,improving information disclosure,improving the access qualifications of developers,and improving the punishment mechanism for pre-sale infringement,etc.,to provide legal support for the protection of the rights and interests of buyers.In practice,mainly starting from the main situations of damage to the rights and interests of buyers in practice,we regulate pre-sale fraud,rectify false advertising,standardize unfair standard terms,and actively explore the localization development of compulsory completion guarantee system,real estate securitization and construction manager system in order to enrich developers’ financing means,ensure the smooth completion of projects,and prevent developer bankruptcy and real estate failure.