本文選題：商品房認購書 + 性質(zhì)��； 參考：《湖南大學(xué)》2012年碩士論文

【摘要】：商品房認購書廣泛存在于商品房交易過程中，由于商品房價格波動幅度大，加上商品房認購書的法律性質(zhì)、效力和責(zé)任等界定模糊，近些年來全國各地發(fā)生了大量的認購書糾紛。俞某與福建華辰房地產(chǎn)有限公司、魏某商品房買賣（預(yù)約）合同糾紛案，即為此類典型案件。本案主要有五個爭議焦點：一是商品房認購書屬于何種法律性質(zhì)；二是商品房認購書是否有效；三是原告主張不安抗辯權(quán)的理由是否成立；四是華辰公司應(yīng)否承擔(dān)違約責(zé)任；五是商品房認購書的解除產(chǎn)生何種效力。從我國現(xiàn)實情況看，，商品房認購書本質(zhì)上屬于預(yù)約合同。本案中的《商鋪認購書》屬于內(nèi)部認購書，由于被告在起訴前取得了商品房預(yù)售許可證，根據(jù)《關(guān)于審理商品房買賣合同糾紛案件適用法律若干問題的解釋》第2條規(guī)定，應(yīng)認定合法有效。本案原告認為其暫緩支付訂金余款500萬元的行為，屬于行使不安抗辯權(quán)。由于原告無證據(jù)證明其履行了通知義務(wù)，且以案外人違約為由在本案中主張不安抗辯權(quán)，違反了合同相對性原則，因此，一審法院和二審法院對原告主張不予支持的判決是正確的。至于商品房認購書的法律責(zé)任，應(yīng)根據(jù)具體情況分別認定為違約責(zé)任或者締約過失責(zé)任。由于原告不安抗辯權(quán)的主張不成立，因此一審法院和二審法院均認定其先行違約，被告不承擔(dān)違約責(zé)任。此項判決值得商榷。雖然原告構(gòu)成先行違約，且被告的履行期限尚未屆至，但是在原告支付絕大部分訂金后，被告未曾履行通知義務(wù)，而將商鋪售予他人，違反了誠實信用原則。因此被告應(yīng)構(gòu)成默示預(yù)期違約。由于訴爭商鋪已售予他人，一審法院判決解除《商鋪認購書》。關(guān)于合同法定解除的法律效力，一般認為非繼續(xù)性合同有溯及力，繼續(xù)性合同無溯及力。商品房認購書作為非繼續(xù)性合同，原則上有溯及力，因此被告應(yīng)返還其收受的訂金及利息。
[Abstract]:The acceptance of commercial housing widely exists in the course of commercial housing transactions, due to the large fluctuations in the price of commercial housing, coupled with the legal nature, effectiveness and responsibility of the purchase of commercial housing is ambiguous. In recent years, there have been a large number of disputes over the purchase of books throughout the country. Yu and Fujian Huachen Real Estate Co., Ltd., Weimou commercial housing sales (reservation) contract dispute, that is, such a typical case. There are five main points of controversy in this case: first, what kind of legal nature of the commercial house admission; second, whether the commercial house acceptance is effective; third, whether the reasons why the plaintiff claims the right of restless defense; fourth, whether the Huachen company should bear the responsibility for breach of contract; Fifth, the release of the purchase of commercial housing to produce what kind of effect. From the reality of our country, the purchase of commercial housing is essentially an appointment contract. In this case, the "Shop admission" is an internal admission. Since the defendant obtained a pre-sale permit for commercial housing before the prosecution, according to Article 2 of the interpretation of certain issues applicable to the trial of disputes concerning the contract for the purchase and sale of commercial housing, It shall be recognized as lawful and effective. In this case, the plaintiff held that the suspension of the payment of the rest of the deposit of 5 million yuan was an exercise of the right of uneasiness. As the plaintiff has no evidence to prove that it has fulfilled its obligation of notification, and has violated the principle of relativity of contract by asserting the right of uneasy defense in this case on the ground of breach of contract by an outsider in the case, The court of first instance and the court of second instance were correct in their decision not to support the plaintiff's claim. As for the legal liability of commercial house purchase, it should be regarded as liability for breach of contract or fault in contracting according to specific circumstances. As the plaintiff's claim of the right of disquiet defense was not established, the court of first instance and the court of second instance found that the defendant was in advance of breach of contract, and the defendant was not liable for breach of contract. The verdict is open to question. Although the plaintiff constitutes a breach of contract in advance and the time limit of performance of the defendant has not yet reached, but after the plaintiff paid most of the deposit, the defendant did not perform the obligation of notice, and sold the shop to others, which violated the principle of good faith. The defendant should therefore constitute an implied anticipatory breach of contract. The court of first instance decided to lift the book because of the lawsuit that the shop had been sold to others. As to the legal effect of the legal rescission of the contract, it is generally considered that the non-continuous contract has retroactive effect and the continuing contract has no retroactive effect. As a non-continuous contract, the defendant should return the deposit and interest received by the defendant.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D923.6

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本文編號：1903669