The so-called commercial housing contract registration and filing means that after the developer and the commercial housing buyer sign the commercial housing sales contract, according to the law, the contract will be sent to the real estate authorities for examination and registration. China implements a compulsory registration system. People's Republic of China (PRC) Urban Real Estate Management Law, People's Republic of China (PRC) Urban Real Estate Development and Management Regulations and Urban Commercial Housing Pre-sale Registration Management Measures all stipulate that after the commercial housing sales contract is signed, the developer must send the contract to the real estate authorities for registration and filing. Its main purpose is obviously to standardize the pre-sale behavior of developers and avoid "real estate speculation" and "selling more in one room"
In practice, due to the developer's reasons, commercial housing sales contracts are often not registered and filed according to law, and disputes with buyers claiming that the contract is invalid also occur from time to time. How to correctly judge the effectiveness of this kind of contract is particularly important, which is very important to help ordinary buyers rationally and correctly defend their rights.
In fact, similar to the effectiveness analysis method of contracts signed without pre-sale permission, administrative regulations only regulate and standardize the contract registration and filing behavior of developers, but have no right to restrict the contract itself. Judging the validity attribute of a contract must be stipulated by civil laws and regulations. In view of the detailed analysis of the legal common sense explanation of rights protection in commercial housing contract disputes, I will not repeat it here.
According to the differences agreed in the unregistered commercial housing sales contract, it can be judged in the following two ways; First, the agreement is superior to the statutory.
A contract is essentially a contract. According to the spirit of "freedom of contract", it can be done without legal prohibition. In the civil field, especially in the contract, as long as there is no explicit prohibition by laws and regulations, the parties can make an agreement on related matters according to their own will and embody it in the contract terms. Article 45 of the Contract Law: "The parties may stipulate that the validity of a contract is subject to conditions. A contract with effective conditions shall take effect when the conditions are met. " It clearly gives the parties the right to choose the validity of the contract under the agreed conditions. Reflected in the commercial housing sales contract, the developer and the buyer can stipulate the conditions in the contract, and "registration and filing of commercial housing sales contract" is the condition for the contract to take effect. At this time, if a dispute arises because the contract has not been filed, the buyer may claim that the contract is invalid according to the agreed conditions; Second, there is no legal agreement. If this kind of contract does not stipulate "contract registration and filing" as the effective condition of the contract, the legal provisions can only be applied to judge the effectiveness of the contract. Article 44 of the Contract Law: "A contract established according to law shall take effect upon its establishment.
Where laws and administrative regulations stipulate that examination and approval, registration and other procedures shall be handled, such provisions shall prevail. "The commercial housing sales contract was established after the developer and the buyer signed it, but there are no laws and administrative regulations in China that require the approval and registration procedures before the commercial housing sales contract takes effect, so this contract takes effect after the two parties sign it according to law. Third, the judicial interpretation clearly stipulates the validity of such contracts. Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "If a party requests to confirm that the contract is invalid on the grounds that the pre-sale contract of commercial housing has not been registered and filed in accordance with the provisions of laws and administrative regulations, it will not be supported. If the parties agree that registration and filing procedures are the effective conditions for the pre-sale contract of commercial housing, such agreement shall prevail, except that one party has fulfilled its main obligations and the other party has accepted them. "