论商品房预售合同转让的法律规制

Study on the Legal Regulations of the Assignment of the Commercial Housing Pre-selling Contract

我国法律没有明确规定是否允许商品房预售合同的转让,但从法理和制度价值上来看,应当采允许的态度。商品房预售合同转让的性质是合同的转让,因此其法律要件就应当与合同转让的法律要件相对应。通过完善现有的商品房预售合同登记备案制度来构建商品房预售合同的转让登记制度,能够切实解决投机炒房和"一合同二卖"两大问题。

The law of China doesn't ordain whether the assignment of the commercial housing pre-selling contract is permitted.But according to the legal theory and institutional advantages,the law should allow it.Besides,the assignment of the commercial housing pre-selling contract should satisfy the following four requirements: the valid commercial housing pre-selling contract,the consensus on assigning the commercial housing pre-selling contract and the valid assignment contract,the notice to the Real Estate Company and the assignment registration and the agreement of the Real Estate Company if involving the assignment of debts.By improving the existing registration and filing institution of the commercial housing pre-selling contract,the registration institution of the assignment of the commercial housing pre-selling contract could solve the problems of speculating and 'contracts being sold twice'.