To be told clear " the buying and selling of the house property that do not have card " problem, small make up make relevant law, statute above all in order to cite, so that everybody reads,inmost palpability can accomplish when rising:
1, " estate of city of People's Republic of China administers a law " thirtieth sets 8 times: "Following estate, must not make over: (One) gain land access with means of sell one's own things, do not accord with the requirement that Benfadi sets 39 times; (2) judiciary and executive authority ruling, decision closes down or limit estate right with other form lawfully; (3) call in lawfully the;(of land access 4) mutual estate, without other and mutual person written agree; (5) authority is belonged to open to question; (6) the;(that did not register the authority that get to belong to certificate lawfully 7) the other state that regulation of law, administrative regulations prohibits making over. (6) the;(that did not register the authority that get to belong to certificate lawfully 7) the other state that regulation of law, administrative regulations prohibits making over..
2, " contract law of People's Republic of China " fiftieth 2 regulations: "Have one of following state, the contract is invalid: (One) one party concludes with con, threatening method contract, harm national interest; (2) ill will is colluded with, damage country, collective or interest of the 3rd person; (3) mask illegal purpose;(with legal form 4) damage a society public interest;(5) of lawbreaking, administrative regulations mandatory regulation. (3) mask illegal purpose;(with legal form 4) damage a society public interest;(5) of lawbreaking, administrative regulations mandatory regulation..
3, " contract law of People's Republic of China " the 60th regulation: "Party ought to fulfil his obligation in the round according to the agreement. Party ought to follow honest credence principle, the property according to the contract, purpose and trade the habit is fulfilled announcement, assistance, confidential wait for obligation. The property according to the contract, purpose and trade the habit is fulfilled announcement, assistance, confidential wait for obligation..
4, " contract law of People's Republic of China " the 107th regulation: "Obligation of contract of nonperformance of party one party perhaps fulfills contract obligation not to accord with an agreement, ought to assume continue to fulfill, take remedial action perhaps compensates for the responsibility of breach of contract such as the loss.
5, " contract law of People's Republic of China " the 135th regulation: "Betray a person to ought to fulfill the content to vendee consign mark or the only evidence of the content of consign extraction mark, transfer the obligation of the content droit of mark. Transfer the obligation of the content droit of mark..
6, " top people court about applicable < contract law of People's Republic of China > the explanation of a certain number of problems (2) " the 14th regulation: "Contract law is fiftieth 2 (5) of the regulation ' mandatory set ' , it is to show effectiveness sex is mandatory regulation. It is to show effectiveness sex is mandatory regulation..
7, " top people court about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 2nd regulation: "Betray a person to did not obtain commodity house to open to booking a license to prove, the commodity house that concludes with vendee opens to booking a contract, ought to maintain invalid, but commodity house is obtained to open to booking a license to prove before sue, can maintain effective. Can maintain effective..
Relevant case:
(One) below the circumstance that opens to booking licence without commodity house in estate development company, vendee and the commodity house deal that estate development business signs close invalid.
Top people court to Sun Haitao and China town name, Jilin Xuan Yu house property develops finite liability company to carry out demur issue desk to make a ruling, the court thinks: In Xuan Yu the company opens to booking the case that permits a proof to fall without commodity house, sun Haitao and company of world of a small room signed the contract of commodity house business with a heavy doubtful point, administer a law according to urban estate the 45th the first (4) open to booking about commodity house, ought to " is dealt with to management department of house property of government of people of prefectural class above open to booking register, the provision that obtains commodity house to open to booking a license to prove " and courtyard of top person civil code " about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " betray a person the 2nd times to did not obtain goods about " the room is opened to booking, the commodity house that concludes with vendee opens to booking a contract, ought to maintain invalid, but commodity house is obtained to open to booking a license to prove before sue, can maintain the provision of effective " , this contract is invalid. As a result of invalid contract from only then invalid, break the law, whether does law decide an evaluation to what its undertake, accordingly Sun Haitao and the contract that high world company is signed do not suffer law to protect. Assume Sun Haitao and company of world of a small room abide by legal regulation, the both sides below the case that in Xuan Yu the company has commodity house to open to booking a license to prove just signs contract of commodity house business, handle this contract later put on record register, when the courtyard closes down, people standard can know whether experience case building has sold. If know to had sold, people court can continue to examine Sun Haitao to whether pay a part total perhaps cost, have whether actually, sun Haitao has the circumstance such as fault to decide to whether close down to dealing with change the name of owner in a register to register formalities. But actual condition is however, sun Haitao and both sides of company of world of a small room are inobservant legal regulation, the both sides below the circumstance that opens to booking permissive proof without commodity house in company of world of a small room still signs contract of commodity house business, bring about a contract to be registered without manage of deal with according to law put on record, because this ability meets occurrence person,civil code courtyard closes down the condition that this site cannot know to whether had been sold by company of world of a small room when bring a case to court contends for a site, sequential to this, can assume by Sun Haitao and company of world of a small room only, and cannot close down by application name of person China town is assumed. [this content cites from top people court (2013) civilian explain word book of the 675th civil ruling " this academy thinks " part. ]
(2) the building business issue that causes to construction of forcibly occupy farmland, before taking up to breaking the law in the executive authority the behavior of farmland is handled, the court does not grant to accept to this.
Intermediate people court is opposite even cloud harbor appellant Qiu because with appellee one case makes dispute of contract of business of building of Sun Ning spring ruling, the court thinks: Collect to fulfilling relevant land, the dispute of building business contract that commandeer formalities takes up farmland undertakes building construction is caused namely, should solve by the executive authority first by the protective issue of embezzlement farmland. Before taking up to breaking the law in the executive authority the behavior of farmland undertakes handling, people court does not grant to handle to this. [this content cites to join court of intermediate people of cloud harbor city oneself (2015) is connected civilian eventually word of book of the 02013rd civil ruling " this academy thinks " part. ]
(3) decide contract of business of the building that do not have card is active, should view action of buying and selling lawbreaking reach sex of administrative regulations effectiveness is mandatory regulation.
Court of people of the city zone of another name for Hubei province of city of state of Hubei province another name for Hubei province is right dispute of contract of business of accuser Qin Chenghong, Qin Chuan and building of the accused Qin Chenghan one case enters a judgement, the court thinks: The accused argue says experience case building did not handle card of building property right, conduct of business of building of former, the accused belongs to conduct of business of the building that do not have card, lawbreaking mandatory regulation, the agreement should be maintained to disable. " contract law " fiftieth 2 (5) Xiang Zhijiang makes a gender set, belong to effectiveness sex mandatory regulation, the law that law and administrative regulations prohibit sexual regulation behavior just produces a contract to disable or holding water about disobeying is sequential, reason " urban estate administers a law " the basis that 7 regulation cannot regard thirtieth as cognizance contract effectiveness. [this content cites to save E Zhou from Hubei court of people of the city zone of city another name for Hubei province (2017) another name for Hubei province 0704 civilian first of 469 civil judgment " this academy thinks " part. ]
(4) the contract of business of the building that do not have card that both sides signs, because did not obtain license of construction project program, lawbreaking mandatory regulation, belong to invalid contract.
Court of people of the county austral Zhejiang province dark green is right first instance of dispute of contract of business of building of Lu Hui, Chen Aihua and Yang Hua abundant, Chen Huaxian makes civil report, the court thinks: China abundant is in the accused poplar to did not obtain circumstance of licence of construction project program to fall, illicit is comfortable be located at clever brook of the county austral dark green to press down B of city north market 601 rooms house is built on top layer build 701 rooms house, to this, housing of the county austral dark green and bureau of urban and rural plan and construction already put on record is investigated, although Hua Feng of the accused poplar applies for hearing of witnesses, but still fail to offer up to now relevant and lawful examine and approve formalities, reason the contract that former, the accused signed on December 26, 2013 is lawbreaking mandatory regulation, should maintain disable for the contract. [this content cites to save court of people of the county austral dark green from Zhejiang (the word at the beginning of 2014) Wen Cangmin of the 430th civil judgment " this academy thinks " part. ]
Case of integration analysis above, the opinion of the deal issue that the court handles the house property that do not have card is basic it is consistent, main content includes the following fields:
(one) the contract of business of the building that do not have card that building buyers and sellers signs, this contract won't because of house property card be short of break and same court decision is invalid. But because cannot obtain house property evidence,be like, bring about buyer to cannot deal with loan procedures by conventional time, bargainor agree carries responsibility of breach of contract. " estate of city of People's Republic of China administers a law " thirtieth 8 (6) set " did not register the authority that get to belong to certificate lawfully " the building must not be made over. But mandatory formulary branch is effectiveness sex mandatory regulation and administrative sex are mandatory regulation, and basis " top people court about applicable < contract law of People's Republic of China > the explanation of a certain number of problems (2) " the 14th, disobey effectiveness sex only mandatory formulary ability is belonged to invalid. And " estate of city of People's Republic of China administers a law " thirtieth 8 (6) management should be belonged to on property model mandatory regulation, should not regard contract of cognizance building business as invalid legal basis.
Providing rational and compulsive provision is to show law and administrative regulations did not make clear a regulation to disobey this kind of regulation to will bring about the regulation with invalid contract. This kind of regulation aims to manage and penalize the behaviour of deregulation, but do not deny this behavior to be in civilian the effectiveness on commercial law. Effectiveness sex is mandatory the regulation is to show law and administrative regulations make clear a regulation to disobey this kinds of regulation to will bring about the regulation with invalid contract, although was not made clear,the contract perhaps will be brought about to disable after the regulation is disobeyed, but if make,the contract continues to will damage national interest and society effectively the regulation of public interest. This kind of regulation aims to punish the act that violate not only, and meaning denying its are in civilian the effectiveness on commercial law. Accordingly, of the compulsive regulation that violated effectiveness sex only, ability ought to maintain a contract to disable.
(2) after building business contract is signed, sell a person in order to do not have house property card by reject to continue to fulfil a contract, the person that buy a house accuses to the court the requirement continues to fulfill, the court can increase development business to be the 3rd person according to powers and authorities of office, sentence make its assistance handles card, building business contract continues to fulfill. The person that buy a house ought to consider to trade in the round when signing business contract risk, avoid to buy the house that do not have card as far as possible. Business contract signs before be necessary to obtain droit evidence in the building of mark truly, the deadline that ought to make clear an agreement to betray a person to obtain evidence of building property right in the contract and the time that help vendee deal with building change the name of owner in a register to register formalities, the item of responsibility of breach of contract that restricts phasing to answer. Should betray a person to have not obtain house property evidence with oneself for, when going back on his word to deal agreement, vendee can be sued to the court with betraying factitious the accused, the requirement continues to fulfil a contract, right now the court can increase development business to be the 3rd person according to powers and authorities of office, adjudicate its assistance betrays a person to handle card of building property right, so that the contract continues,fulfill.
(3) betray a person to did not obtain commodity house to open to booking a license to prove, the commodity house that concludes with vendee opens to booking a contract, ought to maintain invalid, the risk of this contract should be assumed by vendee proper motion. " the courtyard is opposite top people standard to make work about having card the answer of room problem " in clear: "One of, open to booking a license to prove to sell commodity house namely to business is being developed to was not obtained in practice, basis " top people courtyard about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 2nd regulation, this commodity house opens to booking a contract to disable, but business of the development before be being sued has obtained commodity house to open to booking a license to prove, can hold contract of business of this commodity house effective. Secondly, after commodity house opens to booking a contract to be maintained to disable, basis " contract law of People's Republic of China " fiftieth 7 regulation, the contract is invalid, do not affect the self-existent concerns the provision that settles controversy method effectiveness in the contract. Accordingly, if should open to booking commodity house contract to concern the agreement at settling dispute, criterion the effectiveness that people court should respect this party to agree, regard processing as party this agreement between the basis of controversy. Disable in the contract and do not have in the contract fall about the case that settles controversy method, should further ground " contract law of People's Republic of China " fiftieth 8 regulation, because of the property that this contract acquires, ought to give return still, cannot return return or not was necessary to return return, ought to compensation of convert into money. Meanwhile, the one party that has fault ought to recoup the loss that the other side gets accordingly, both sides has fault, ought to assume corresponding responsibility severally. Thirdly, how is the compensatory loss issue after opening to booking commodity house contract to disable without card handled in be being carried out to be solved further, " top people court about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 9th regulation, in development business conceals the fact that did not obtain commodity house to open to booking a license to prove intentionally to perhaps offer false commodity house to open to booking the case that permits a proof to fall, development business ought to return what still buy room person to had paid to buy house money and interest, should assume already did not pay the money that buy a house the liability to pay compensation of one times more than, stipulated in the light of development business the castigatory sex of fraudulent action is compensated for namely. As to development business does not have the condition that conceals intentionally perhaps false, answer the regulation according to afore-mentioned contract law, have law applicable, accordingly, if people court can be maintained, development business disables to all have fault to the contract with the person that buy a house, answer the fault degree with bilateral basis, the court decision assumes corresponding responsibility severally, this is the result of applicable contract law. This is the result of applicable contract law..
(4) when carrying out the house property that do not have card about people court, how to handle the issue that property right registers. " the case that top people court helps executive writ deal with property right to register concerned issue about having basis of card house property about transmit housing and < of ministry of urban and rural construction > announcement " [law 〔 2012 〕 151] the 2nd regulation: "Deal with to was not dealt with in executive program initiative when the building that register, have the initiative requirement that register. The orgnaization can be registered to give out to the building lawfully after executive court handles " assistance carries out advice note " ; does not have the initiative requirement that register temporarily, after executive court handles, can give out to the building orgnaization that register " assistance carries out advice note " , carry bright wait for building vendee or bear after the person perfects relevant formalities to have the initiative requirement that register, register an orgnaization by the building according to " assistance carries out advice note " give the; that register does not have the initiative requirement that register, in principle undertakes " the current situation deals with " , building of the exposure before dealing with namely does not have the current situation of the initiative condition that register, vendee or bear the person acquires a building according to the right current situation of the building. Follow-up property right registers item by vendee or bear person proper motion is responsible. " the 3rd regulation: "Executive court is given out to the building orgnaization that register " assistance carries out advice note " , the building registers an orgnaization to think not to have the initiative requirement that register and make written specification, executive court should be mixed in law of the according to inside 30 days concerned regulation, consult administrative regulations, explain to its reason undertakes checkup. Reason holds water, cancel or change " assistance carries out advice note " building of written announcement registers an orgnaization: Reason does not hold water, deadline of the orgnaization of written announcement building that register is pressed " assistance carries out advice note " deal with. Deadline of the orgnaization of written announcement building that register is pressed " assistance carries out advice note " deal with..
(5) the legal effectiveness that buying and selling replies change house without card. Alleged the room that answer change is to show development business is in when collecting land, admeasure replies the house of change door. Some change door gives the room that answer change directly processing, formed a few issue thereby. Although answer the buying and selling of change room to be able to break through the confine that house of a few commodity trades, the price also may a few cheaper, but the risk with the buying and selling of the room that answer change or a lot of existence: When answering change room to handle house property card for instance, it is the name that makes clear when signing agreement of the room that answer change according to owner decides house property everybody commonly, won't list the name of house property card directly in under one's name of the person that buy a house. Below this kind of circumstance, if betray a person to go back on one's word, the person that buy a house will not obtain wanted house property. Say accordingly, the house answering change that did not obtain house property evidence can not have business. Be based on this, when buying redemptive change house, must ask Qing Dynasty answers change room to whether have house property card. If still do not have house property card, should cogent make clear the move formalities that building property handles inside the proper time after answering to obtain house property evidence oneself. Because answer change room to have certain uncertainty, before obtaining house property evidence, if the bargainor dies, the room that answer change should be broken up by heir as bequest lawfully, so, when signing contract of business of the house that answer change, the first ordinal heir of best requirement bargainor signs, be approbated in order to make clear to what the bargainor betrays behavior and of benefit of right of inheritance abandon.
(6) find a place for without card the business problem of the room. Alleged find a place for the room is to because the reason such as development of town planning, land undertakes tearing open change,point to, and find a place for person of the change that be torn open or tenant live use building. Find a place for the object includes town dweller to be torn open change user and the peasant household that sign the house that tear open change, find a place for the room is a government or the company is right the form of a kind of compensation of the object that tear open change. Because its find a place for the object is specific resettlement,find a place for door, the buying and selling of this kinds of building removes the standard that accepts law, code besides, still accept the obligation of local government policy, trade with average commodity room so have very big different. But if tear open change to find a place for the room obtains a room,counterpoise, and did not stipulate limitation sells external, perhaps limit cession time full already, such tearing open change finds a place for room and common commodity house that's all right are distinguished, such finding a place for the room is OK buying and selling. If do not have house property card, building business agreement does not accept legal protection commonly.
