An Empirical Analysis of the Rules of Adjudication of Commercial Housing presale Contract Disputes -- From the Perspective of the Judicial Precedents of Jinan City from 2015 to 2017

[Abstract] In order to clarify the judgment rules of several typical cases of commercial housing presale contract disputes, the author mainly based on the judgment documents made by the relevant courts in Jinan from 2015 to 2017, and referring to the judgment documents of the Supreme People's Court and other relevant courts, made an empirical analysis and research, in order to deal with commercial housing presale contract disputes in accordance with the law.

【Key words】Commercial housing presale contract litigation referee

Commercial housing presale contract disputes are very common in judicial practice. Courts across the country have countless judicial judgments on commercial housing presale contract disputes, and the judgment rules are also different. Using empirical methods to study and sort out the judicial judgment rules of commercial housing presale contract disputes is of great significance to all parties to commercial housing presale contract disputes.

1. Main Types of Typical Cases of Commercial Housing presale Contract Disputes in China

On February 18, 2011, the Supreme People's Court's Decision on Amending the Provisions on the Cause of Action in Civil Cases (Law [2011] No. 41), Item 82, "Disputes over Contract of Sale and Purchase of Houses", is divided into: 1. Disputes over contract of reservation of commercial houses; 2. Disputes over contract of presale of commercial houses; 4. Disputes over contract of entrusted sales of commercial houses; 5. Disputes over contract of transfer of affordable housing; 6, rural housing sales contract disputes. "Commercial housing presale contract dispute" is only one of the causes of "housing sales contract dispute", and the Supreme Court has not classified the cause of "commercial housing presale contract dispute.

Limited by the scope of judicial documents collected by the author, in order to facilitate empirical research, the author divides the common commercial housing presale contract disputes into the following categories according to the main disputes in the common commercial housing presale contract disputes in judicial practice: 1. Commercial housing delivery disputes:(1) disputes over delivery conditions;(2) disputes over overdue delivery of housing;(3) disputes over voluntary acceptance of housing without reaching the agreed or legal delivery conditions;(4) Disputes over the statute of limitations of the buyer's claim for liquidated damages for overdue delivery of the house;(5) Disputes over the delivery of "temporary power"; 2. Disputes over the overdue issuance of certificates for commercial housing; 3. Disputes over the loan guarantee contract for commercial housing presale:(1) Disputes over the settlement of the "Commercial Housing Sales Contract" due to the default of the buyer's loan contract;(2) Disputes over the down payment for the buyer's loan for meeting the mortgage loan conditions;(3) The seller has not yet handled the property right certificate of commercial housing disputes.

Analysis of the Judgment Rules of Some Typical Cases of 2. Commercial Housing presale Contract Disputes

(I) Commercial Housing Delivery Conditions Dispute Cases
The delivery of commercial housing is the most important obligation of real estate development enterprises in the "Commercial Housing presale Contract", and it is also the focus of much controversy during the performance of the "Commercial Housing presale Contract.

1, the contract agreed delivery conditions of the validity of the dispute dispute.
The "single completion acceptance" stipulated in the "Commercial Housing presale Contract" is the delivery condition. Whether it violates the mandatory provisions of laws and administrative regulations, and whether it is a valid agreement, Jinan Licheng District People's Court and Jinan Intermediate People's Court have two different opinions on this:

(1) In the case of (2014) Jimin No. 644, the Jinan Intermediate People's Court held in the second instance that "according to the regulations on the Management of Urban Real Estate Development and Operation, the delivery and use of commercial housing is conditional on the completion and acceptance of development projects, not just the quality acceptance of individual projects. The use of the house by the Buyer shall include the use of the infrastructure and supporting facilities of the residential area. In the contract, after the completion and acceptance of the single commercial house, both parties shall consider that the house has reached the delivery conditions and the buyer who has passed the completion acceptance shall not refuse to accept the agreement. The standard clause drawn up in advance for the seller exempts the seller from the above The obligation to complete the comprehensive acceptance before the house is handed over shall be invalid." According to this, the agreement on the delivery conditions of the house in the commercial housing sales contract is invalid. If the seller fails to deliver the house in line with the provisions of the comprehensive acceptance and filing measures for the completion of real estate development projects in Shandong Province within the delivery period of the contract, the buyer shall have the right to terminate the contract.

(2) The Licheng District People's Court of Jinan City held in the first instance in a similar case in July 2016 that "the conditions for the delivery of commercial housing have been reduced, which violates the mandatory provisions of laws and regulations on the conditions for the delivery of commercial housing and is invalid. The comprehensive acceptance/phased comprehensive acceptance should be taken as the delivery condition, and the seller's failure to obtain the comprehensive acceptance record certificate of the development project before the end of the court debate constitutes a breach of contract and shall be liable for the contract."

(3) In the case of (2016) Lu 0112 Minchu No. 1895, the People's Court of Licheng District, Jinan City held in the first instance: "The commercial housing sales contract signed by the original and the defendant is an expression of the true intentions of both parties, and does not violate the mandatory provisions of laws and regulations. The contract is legal and valid, and both parties should fully perform their contractual obligations, and accordingly dismissed the plaintiff owner's claim.

(4) In the case of (2016) Lu 01 Min Zhong No. 4152, the Jinan Intermediate People's Court held in the second instance that: "According to the" Decision of the State Council on the Third Batch of Cancellation and Adjustment of Administrative Approval Projects ", the administrative approval for the comprehensive acceptance of the completion of real estate development projects in residential communities and other groups has been canceled. Articles 17 and 18 of the" Regulations on the Management of Urban Real Estate Development and Operation "are no longer mandatory regulations, the buyer and seller of commercial housing can agree on the standard of commercial housing delivery in the contract. In this case, the two parties did not select the" Comprehensive Acceptance Filing Certificate "or the" Staged Comprehensive Acceptance Filing Certificate "stated in Article 8 of the" Commercial Housing Sales Contract ", but agreed in the supplementary agreement: After the completion and acceptance of the single commercial housing, both parties It is deemed that the house meets the delivery conditions, and the outdoor project is not a necessary condition for the delivery of the house. This agreement between the parties does not exempt the seller from liability, increase the buyer's liability, exclude the buyer's main rights, the provision is legal and valid."

To sum up, the two-level courts of Jinan have different understandings in different periods on whether the agreement that "monomer completion acceptance" is the delivery condition violates the mandatory provisions of laws and regulations and whether it is invalid. According to Article 52 of the Contract Law, Article 14 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Contract Law, Articles 17 and 18 of the Regulations on the Administration of Urban Real Estate Development and Operation, and Item 83 of the Decision of the State Council on the Third Batch of Cancellation and Adjustment of Administrative Examination and Approval Items, judging from the relatively new judicial precedents, the two-level courts in Jinan are inclined to determine that the contract agreement of "monomer completion acceptance" as the delivery condition is valid.

2, the contract agreed "monomer completion acceptance" delivery conditions whether the achievement of disputes.
The "Commercial Housing Sales Contract" stipulates whether the delivery conditions of "single completion acceptance" are fulfilled, which determines whether the seller fully fulfills the obligation of house delivery and whether it should bear the responsibility for breach of contract of overdue house delivery. According to the relevant judgment of Jinan intermediate people's court, the standard of fire control acceptance and construction project completion acceptance record are often taken as the measurement standard.

(1) To obtain the "construction project completion acceptance record" or "single completion acceptance record" as the delivery condition achievement. In the case of (2016) Lu 01 min zong No. 1483, before delivery, the house involved in the case passed the fire control acceptance of Jinan public security fire brigade, and obtained the "opinion on fire control acceptance of construction project", and passed the acceptance of construction unit, survey unit, design unit, construction unit and supervision unit, and obtained the record form of completion acceptance of construction project. After moving in, the owners of the residential area involved can directly sign user agreements with water, electricity, natural gas and other franchised enterprises to enjoy the corresponding municipal services normally. Accordingly, the court found that the house delivered by the seller to the buyer had basic normal conditions for use.

(2) "fire acceptance" as the determination of late delivery of breach of contract liability conditions. In (2016) Lu 01 min zong No. 4152 case, the court held that the commercial housing delivered by the seller to the buyer should comply with the mandatory provisions of laws and administrative regulations such as articles 11 and 13 of the the People's Republic of China fire protection law, otherwise the buyer has the right to refuse to accept the house; if the buyer accepts the house, the seller shall still bear the corresponding legal liability for the overdue delivery of the commercial housing in line with the mandatory provisions. In view of the fact that the building where the involved house is located belongs to the construction project prohibited from use without fire control acceptance stipulated in the the People's Republic of China Fire Protection Law, the seller shall deliver the involved house to the buyer before fire control acceptance, and shall bear to the buyer the liquidated damages for overdue delivery from the next day of the house delivery date stipulated in the Commercial Housing Sales Contract to the date when the building where the involved house is located passes fire control acceptance in accordance with the mandatory provisions of the the People's Republic of China Fire Protection Law.

3, the buyer in the case of the house did not reach the agreement or the legal delivery conditions of the voluntary housing dispute.
The Jinan Intermediate People's Court made different determinations on the legal consequences of the buyer's voluntary acceptance of the house involved in the case when distinguishing whether the commercial house was delivered in violation of the legal provisions or contractual agreements on the delivery of the house:

(1) As a change to the agreed delivery conditions.

In the case of (2015) Jimin Yizong Zi No. 1319, the parties agreed in the contract that the delivery condition of the house was "comprehensive acceptance and filing". Although the actual delivery did not meet the delivery conditions agreed in the contract and did not pass the "comprehensive acceptance", the "quality completion acceptance and filing certificate" has been obtained. The buyer still chooses to accept the house involved in the case knowing that the house involved has not met the agreed delivery conditions, it is regarded as that it has changed the delivery conditions agreed in the house purchase contract by this behavior. Therefore, the court does not support the buyer's claim of liquidated damages for overdue delivery after the actual house is taken over.

(2) Discretionary criteria for reducing the seller's late delivery of liquidated damages

In the case of (2016) Lu 01 Min Zhong No. 4152, although the commercial housing involved in the case has passed the "acceptance of the four parties of construction, design, construction, and supervision" when it was delivered, because the house involved did not meet the mandatory provisions of the house delivery stipulated in the Fire Protection Law, the seller is still ordered to pay the liquidated damages for overdue delivery during the period from the next day of the house delivery date agreed in the Commercial Housing Sales Contract to the date of passing the fire control acceptance in accordance with the mandatory provisions of the the People's Republic of China Fire Protection Law. Because the buyer voluntarily accepts the house, the standard for the seller to bear the liquidated damages for overdue delivery is adjusted from the agreed "one ten thousandth of a day" to "0.3 ten thousandths of a day".

4, the buyer claims the statute of limitations for late delivery of the house.
As for the limitation of action for liquidated damages for overdue delivery of commercial housing, 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 and relevant laws and regulations are not clearly stipulated. There are also different views on this in judicial practice. The more recognized view is that when the time limit for the seller to deliver the house expires in the commercial housing sales contract, the buyer can request the seller to bear the liquidated damages for overdue delivery according to the contract; the right of claim belongs to the right of claim, and the provisions of the General Principles of Civil Law on the statute of limitations shall apply. However, in the calculation of the limitation period, the specific circumstances should be distinguished: the house has the legal or agreed delivery conditions, and the limitation period shall be calculated from the date of expiration of the delivery period agreed in the contract; if the house does not yet have the delivery conditions, the limitation period shall be calculated from the date when the house has the legal or agreed delivery conditions.

5, commercial housing delivery when the "temporary power" is a default delivery.
(1) What is the determination of "meeting the conditions for use"
If the delivery conditions stipulated in the Contract for the Sale and Purchase of Commercial Housing are comprehensive acceptance or comprehensive acceptance by stages, water and electricity must pass the special acceptance and meet the municipal access conditions before the house is delivered. However, as mentioned above, if the parties change the delivery conditions in the supplementary agreement to the completion acceptance of the monomer, the completion acceptance of the monomer itself is the acceptance of the main structure of the building, and does not involve the special acceptance of supporting facilities such as water and electricity. In this case, how to determine whether the water and electricity meet the conditions for use?

In the case of (2017) Lu 01 Min Zhong No. 3030, the Jinan Intermediate People's Court held that the "Commercial Housing Sales Contract" stipulates that water and electricity will meet the conditions for use from the date when the house is actually delivered for use, and reaching the conditions for use should be interpreted as having the official municipal use. The reasons are as follows: 1. The use of temporary power in residential areas does not meet the requirements of relevant administrative regulations and departmental rules. Article 24 of the "Regulations on Power Supply and Use" of the State Council Order No. 666 implemented on September 1, 1996 stipulates that the power facilities in newly-built communities can only be put into use after passing the inspection of power supply enterprises. The first and second paragraphs of Article 12 of the "Power Supply Business Rules" issued and implemented by the Ministry of Electric Power Industry Order No. 8 on October 8, 1996 stipulate that non-permanent electricity for infrastructure construction sites, farmland water conservancy, municipal construction, etc., Can supply temporary power. Except with the permission of the power supply enterprise, the temporary power supply period shall not exceed six months. If the extension or permanent formal power use procedures are not completed within the time limit, the power supply enterprise shall terminate the power supply. Users who use temporary power sources shall not transfer power to other users, nor shall they transfer power to other users, and power supply enterprises shall not accept their changes in power consumption. If it is necessary to change to formal electricity, it shall be handled as newly installed electricity. 2. There are some differences in technical parameters between temporary power supply and formal power supply. Compared with formal power supply, temporary power supply has some problems, such as insufficient power supply capacity, unstable voltage and poor power supply reliability. The use of temporary power in residential areas is not enough to protect the normal life of residents. 3. According to the provisions of Article 41 of the Contract Law, if there are more than two interpretations of the standard clause, an interpretation that is not conducive to the party providing the standard clause shall be made. 4. The delivery condition of the house involved in the case is that the completion and acceptance of the single commercial house is qualified, which is not the comprehensive acceptance record certificate required by the real estate development department. Therefore, the agreement on public infrastructure in the contract should be strictly interpreted. According to this judgment, the developer shall, in accordance with the standard of liability for breach of contract stipulated in the "Commercial Housing Sales Contract", bear the overdue liquidated damages for "electricity not reaching the conditions for use" during the period from the date of delivery of the house to the date of access to municipal electricity.

(2) The standard of liquidated damages for the use of electricity that does not meet the conditions of use.

In the above-mentioned case, the Jinan Intermediate People's Court ruled that the developer should bear the liability for breach of contract in accordance with the "Commercial Housing Sales Contract". The author believes that it is open to question. Although the house is delivered for temporary electricity, according to the local electricity price, the electricity price for "failing to connect to the municipal 10KV power supply" is much higher than the electricity price for "connecting to the municipal 10KV power supply". Since the house involved was delivered, the buyer has been paying the electricity price according to the residential electricity price standard of 0.5469 yuan/kWh stipulated by Shandong Province and Jinan City, and the high difference between the two is made up by the developer to the power supply company, the buyer did not suffer any actual loss due to the power supply "not connected to the municipal 10KV power supply", and the developer was judged to pay liquidated damages in accordance with the standard of liability for breach of contract agreed in the contract, which obviously increased the developer's responsibility.

Chongqing Fifth Intermediate People's Court (2015) Chongqing Fifth Intermediate People's Court No. 07032 case is similar to the above case. The Chongqing Intermediate People's Court believes that "if the parties claim that the agreed liquidated damages are too high and request an appropriate reduction, the people's court shall Take the actual loss as the basis, taking into account the comprehensive factors such as the performance of the contract, the degree of fault of the parties, and the expected benefits, and make a ruling. In this case, the buyer did not provide evidence to prove that the electricity did not conform to the contract and suffered actual losses. Therefore, the court of first instance determined that the liquidated damages agreed by both parties were obviously too high, and taking into account the performance of the contract, the degree of fault of both parties was comprehensively considered. It is not improper to reduce the amount of liquidated damages paid by the developer to 1000 yuan as appropriate. Therefore, with regard to the liquidated damages for commercial housing "failing to connect to the municipal 10KV power supply", the above-mentioned decision of the Chongqing Fifth Intermediate people's Court more appropriately balances the legitimate rights and interests of both the developer and the buyer.

(II) Commercial Housing Overdue Certificate of Breach Liability for Limitation of Action Dispute Cases

If the certificate of ownership of commercial housing is overdue due to the seller, the seller shall pay liquidated damages to the buyer according to the liquidated damages standard stipulated in the commercial housing sales contract. However, there is no clear stipulation on how to apply the limitation of action to the right of claim for liquidated damages caused by overdue certificate. In judicial practice, according to different situations stipulated in the standard of liquidated damages for overdue certificate, different views are held:

1. Both parties to the contract clearly agree on the specific amount of liquidated damages. In case of overdue payment, the liquidated damages of this determined amount (for example, 1% of the total house price has been paid) shall be paid. The request for payment of this liquidated damages amount is a temporary creditor's right, that is, the creditor's right whose content has been determined at a certain point in time. In this case, the application of the statute of limitations is basically uncontroversial, and the buyer shall request the seller to pay liquidated damages within the statutory statute of limitations period after the expiration of the certification period.

2. The parties to the contract agree to calculate the amount of liquidated damages on a daily and monthly basis, and the amount of liquidated damages increases with the persistence of the breach (e. g., one in ten thousand a day), in which case, there are three different views on how to apply the statute of limitations:

(1) In the second issue of the Bulletin of the Supreme People's Court in 2008, the Chongqing Higher People's Court held in the first instance of the dispute over the commercial housing presale contract between Pan-China Engineering Co., Ltd. Southwest Company and China Life Insurance (Group) Company that: "The liquidated damages are based on the continuous occurrence of the breach of contract. It is an overall contractual right determined by both parties in the contract, instead of dividing the number of days of breach into a number of independent rights that calculate the statute of limitations separately. If the claim for breach of contract is divided into a number of independent claims, and the limitation of the statute of limitations starting separately, it will change the original intention of the 'cumulative calculation' agreed by the parties in the contract, contrary to the basic principle of autonomy of the parties. In the case, the two parties did not agree on the payment period of the liquidated damages. The creditor can claim at any time. Only when the debtor clearly indicates that it will not perform, the statute of limitations can be calculated according to law." The judgment recognized the claim for liquidated damages accumulated on a daily basis as a claim for non-agreed period of performance, and the statute of limitations began to run when the debtor expressly indicated non-performance. The case was upheld by the Supreme People's Court in its second instance that the facts and applicable law were correct.

(2) The Hainan Provincial Higher People's Court's "Guiding Opinions on the Trial of Disputes over Commercial Housing Sales Contracts (Trial)" stipulates that if the contract stipulates the time for the developer to submit the certification materials to the property rights registration authority, the buyer requests the developer to bear the overdue The statute of limitations for breach of the certificate shall be calculated from the next day of the time agreed in the contract. In the above-mentioned provisions, there is no distinction between the way of liability for breach of contract for overdue certification, and the statute of limitations shall be calculated from the day after the time agreed upon in the contract. From the meaning of the above provisions, the above provisions shall also apply to the calculation of the limitation of action for the liquidated damages for overdue accreditation calculated on a daily basis.

(3) The Intermediate People's Court of Yunfu City, Guangdong Province advocated another opinion in the judgment of (2017) Yue 53 Min Zhong No. 684 Case: "As both parties agree, if the seller breaches the contract, the buyer shall pay liquidated damages to the buyer according to the standard of 0.1 ‰ of the total price of the commercial housing paid by the buyer every day. The liquidated damages agreed by both parties shall be accumulated according to the time of breach of contract by the appellee, I .e, the calculation of one day's breach of contract is a continuing claim, so the statute of limitations should be applied separately for each individual claim. The appellant did not obtain the real estate certificate before October 25, 2014. From this time on, his rights have been infringed, and the claims generated every day have been infringed, and each claim is subject to a two-year statute of limitations."

The judgment of Jinan Intermediate People's Court in (2016) Lu 01 Min Zhong No. 3847 case is basically the same as that of Yunfu Intermediate People's Court in Guangdong Province: "As both parties agree that the seller shall pay liquidated damages to the buyer on a daily basis, the number of days for which the seller defaults will directly affect the amount of liquidated damages. The same debt as stipulated in Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases means that the debt has been determined at the time of the conclusion of the contract, the time factor no longer plays a role in its content and scope, and the only way of performance is affected by the time factor. Therefore, the daily payment of liquidated damages agreed by both parties in this case does not belong to the performance of the same debt in installments, and the provisions of Article 5 of the aforementioned judicial interpretation do not apply, and the liquidated damages paid by the seller to the buyer on a daily basis shall also be calculated as the statute of limitations period on a daily basis."

(4) Analysis of the relevant meeting minutes of the Supreme People's Court

On November 30, 2016, the Supreme People's Court published the Minutes of the Eighth National Court Civil and Commercial Trial Work Conference (Civil Part) of the Supreme People's Court in the 12th issue of the 2016 Supreme People's Court Bulletin. Article 4 It stipulates: "Trial of Real Estate Dispute Cases" Paragraph (IV) "Regarding Liability for Breach of Contract" Item 18 clearly states that the buyer requests the seller to pay liquidated damages for overdue certification, the limitation period shall be calculated from the day following the expiration of the contract or the statutory period.

There are still some unclear issues in the above-mentioned meeting minutes, such as "contractual agreement or legal period" refers to the period of ownership registration, or refers to the period of payment of liquidated damages agreed upon in the contract? If it refers to the "time limit for the registration of ownership", although from the day after the expiration of the time limit, after the expiration of the limitation period, until the buyer sues, the state of breach of contract for the overdue ownership certificate is still continuing, should the buyer's claim for payment of liquidated damages be supported? If it refers to the "period of payment of liquidated damages", if the contract does not agree on the period of payment, how to deal with and determine the statute of limitations for requesting payment of liquidated damages? The author believes that the minutes of the above-mentioned meeting of the Supreme Court do not distinguish the calculation method of liquidated damages for overdue certification, and the limitation of action shall be calculated from the day after the expiration of the term of ownership certificate stipulated in the contract.

(III) commercial housing loan guarantee contract dispute case.
Commercial housing mortgage loan is not a single legal relationship, it includes the sale, loan, mortgage, guarantee and other legal relations, the most important of which is the commercial housing sales contract relationship and the purchase loan guarantee contract relationship. The real estate development enterprise, as the seller, also provides a phased joint and several guarantee liability for the buyer's loan repayment in the loan guarantee contract until the date on which the loan bank obtains the certificate of other rights. The buyer's loan repayment behavior is often a long-term (20 to 30 years) continuous behavior, and the target house can only apply for other rights certificates after signing the "Commercial Housing presale Contract" for a long period of time. Therefore, in judicial practice, There are often cases where the buyer (borrower) cannot repay in accordance with the loan guarantee contract, and the loan bank deducts (on schedule or one-time) the seller (guarantor) deposit. "Commercial housing presale contract" often after the emergence of this kind of situation, the seller has the right to unilaterally terminate the contract to make a clear agreement.

1, the seller to exercise the "commercial housing sales contract" to terminate the right, the loan bank's litigation subject status determination.
Article 25 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates that if one of the parties to a commercial housing sales contract with a secured loan as the payment method requests confirmation of the invalidity of the commercial housing sales contract or cancellation or termination of the contract, if the secured party files a claim as a third party with an independent claim, it shall be tried in conjunction with the commercial housing secured loan contract dispute, only deal with commercial housing sales contract disputes. If the security right holder sues separately for a dispute over a commercial housing secured loan contract, it may be tried in conjunction with the dispute over the commercial housing sale contract.

According to the above regulations, the loan bank belongs to the person with independent claim right, and whether to participate in the lawsuit should be decided by itself. The court can not forcibly add it to participate in the lawsuit. For the problem that the bank cannot know that the commercial housing transaction dispute between the buyer and the seller has been accepted by the court and is difficult to participate in the lawsuit, the plaintiff can inform the loan bank before the lawsuit. If the plaintiff does not inform the loan bank, the court can inform the bank, it has the right to apply to participate in the proceedings as a third person with an independent claim, but the court cannot take the initiative to add it as a third person. The author thinks:

(1) The seller chooses to pay off all the loan principal and interest balance owed by the buyer to the loan bank in one lump sum before suing for the termination of the Commercial Housing Purchase and Sale Contract, and to determine the amount of loss by way of payment on behalf of the seller, and to recover the amount together in the litigation of the right to terminate the Commercial Housing Purchase and Sale Contract. In this case, by exercising the right to terminate the contract for the sale of commercial housing in a lawsuit, it is possible to clearly fix the seller's total loss, but the disadvantage of this method is that the seller has to make a large payment for the one-time repayment of the loan.

(2) If the seller only sues for the termination of the Commercial Housing Sales Contract and fails to pay off all the loan principal and interest balance owed by the buyer in one time before the lawsuit, and the loan bank does not join the lawsuit as a third party with independent claim, the people's court only hears the lawsuit for the termination of the Commercial Housing Sales Contract, and the loan bank often deducts the seller's security deposit on schedule/month after the lawsuit is over, the judgment only clarified the seller's loss before the end of the debate, resulting in the seller's loss still in a state of uncertainty (or cumulative increase) after the termination of the "Commercial Housing Sales Contract.

2. The seller and the buyer have reached a separate "loan agreement" for the buyer's failure to pay the down payment in full.
In the period of real estate market downturn, when the use of bank mortgage loans still can not achieve the purpose of encouraging buyers to buy houses, some sellers will sign a loan agreement with the buyer for the unpaid part of the down payment, and issue the relevant materials of the down payment under the commercial housing sales contract to the loan bank, cooperate with the buyer to obtain part of the mortgage loan. In this case, if the seller claims to exercise the right to terminate the contract for the sale of commercial housing, the people's court's determination and handling of the down payment situation is currently encountered in the following two situations:

(1) The People's Court of Huaiyin District of Jinan City held in the case of (2016) Lu 0104 Minchu No. 3501 that although the seller provided the Loan Agreement in the lawsuit, which showed that part of the down payment paid by the buyer was paid by the seller, according to the Commercial Housing Sales Contract filed in this case, it can be confirmed that the buyer paid the down payment in full, because the trial content of this case is a dispute over the commercial housing sales contract, the contents specified in the commercial housing sales contract shall prevail. As for the loan agreement signed separately by the seller and the buyer, it involves the loan relationship between the two parties, which is not the same legal relationship as the trial of this case. In this case, the seller requires confirmation that the down payment amount paid by the buyer shall be deducted from the advance payment made by the seller under the loan agreement, which shall not be supported.

(2) The People's Court of Changqing District, Jinan City, in the case of (2017) Lu 0113 Minchu No. 3968, supported the seller's claim for the return of the down payment.

3. Before or in the course of the seller's exercise of the right to terminate the contract for the sale of commercial housing, the subject house was seized by the buyer's other creditors or entered into the execution procedure for the treatment of objections.
If the buyer (borrower) fails to repay the bank loan on time, there may be two situations: the housing market price drops more, and the continued repayment of the loan will expand the buyer's economic loss; the buyer is caught in an economic dispute and cannot continue to repay the loan. In the current market situation, it is basically the second case, that is, the buyer is involved in economic disputes, and in this case, the buyer is often involved in litigation disputes with its creditors before the bank loan is repaid on time, and the seller has no way to grasp the buyer's economic situation, it is often only when the people's court receives a notice of assistance in execution (the buyer's creditor applies for the seizure of the property under the "Commercial Housing Sales Contract") or the bank withholds the seller's deposit on a scheduled/monthly basis that the relevant situation is known.

The author suggests that in case of the above situation, the seller should submit a written objection to the court as soon as possible after receiving the notice of assistance in execution, and send a letter and sue to exercise the right of termination of the contract when the termination conditions stipulated in the commercial housing sales contract are fulfilled. If the buyer's other creditor litigation has entered the enforcement stage, the seller shall submit a written application for enforcement objection to the enforcement court, and the enforcement court will make a ruling in support or rejection after a written hearing. In response to the ruling, the seller has the right to file an enforcement objection to the enforcement court with the person applying for enforcement and the person subject to enforcement as the defendant. In (2016) Lu 01 Min Zhong No. 3572 case, Jinan Intermediate People's Court's views on such cases are as follows:

Article 26 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Execution by the People's Courts stipulates that the transfer, setting of rights burden or other acts that hinder the execution of the property that has been sealed up, seized or frozen by the person subject to execution shall not be opposed to the person applying for execution. Where a third party, without the permission of the people's court, takes possession of the property sealed up, detained or frozen or performs other acts hindering the execution, the people's court may, on the application of the person applying for enforcement or ex officio, release his possession or remove his obstruction. If the seizure, attachment or freezing of a people's court is not publicized, its effect shall not be against a bona fide third party. It can be seen that the above-mentioned provisions only prohibit the execution of the subject matter, the third party to avoid execution and the transfer of the subject matter of the seizure, the creation of the burden of rights, possession and other acts that hinder the execution, but does not prohibit the right to change the original basic relationship on the seized property in accordance with the law for the purpose of avoiding execution. Therefore, in the case that the property involved has been pre-sealed, the seller can still exercise the right to terminate the housing sales contract in accordance with the law. The people's court has made an effective judgment on the case of rescinding the commercial housing sales contract brought by the seller, and ruled to rescind the "commercial housing sales contract" between the seller and the buyer (I. e. the person subject to execution).

The first paragraph of Article 9 of the "the People's Republic of China Property Law" stipulates that the establishment, modification, transfer and elimination of real property rights shall be effective after registration in accordance with the law; without registration, it shall not be effective, unless otherwise provided by law. The buyer did not go through the transfer registration procedures of the house involved in the case, and when the "Commercial Housing Sales Contract" has been terminated, the buyer has lost the right to request the transfer registration of the house involved in the case. Therefore, the buyer has not acquired the ownership of the house in question, and the owner of the house in question is still the seller. Therefore, the court supported the seller's claim of immediate termination of the execution of the house in question.

4. Analysis of related issues
In the cases handled by Licheng District People's Court, Huaiyin District People's Court, and Tianqiao District People's Court of Jinan City that the seller exercised the right to terminate the "Commercial Housing Sales Contract" after the loan bank withheld the deposit, the author explicitly requested the buyer in the application. Repay the principal and interest of the loan advanced by the seller to the loan bank, pay the seller the liquidated damages agreed in the contract, and compensate the seller for the loss of legal fees due to the litigation, at the same time, the above-mentioned amounts should be deducted from the house price that the seller should return to the buyer, which has been supported by the above-mentioned court decisions.

However, when the people's Court of Jiyang County, Jinan City handled similar cases, although the case was finally settled through mediation according to the above point of view at the insistence of the lawyer, in the process of handling the case, the court of Jiyang County put forward different views on liquidated damages, loss compensation and return of money: lawyer's fees belong to loss compensation, and liquidated damages should not be claimed in parallel; Article 25 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of commercial housing sales contract disputes: if the contract for the sale and purchase of commercial housing is confirmed to be invalid or canceled or terminated, the seller shall return the principal and interest of the purchase loan and the purchase money received to the security right and the buyer respectively. Therefore, the Jiyang County Court held that the house price that the seller should return to the buyer not only includes the principal of the purchase price, but also should consider the interest loss corresponding to the part of the bank loan that the buyer has repaid.

3. epilogue

Commercial housing presale contract transaction links are intricate and the relationship is complex. Some of the typical dispute cases sorted out in this paper have formed relatively unified judicial adjudication rules, but there are still many disputes, and the handling methods in practice are different. However, no matter what kind of disputes, they should follow the basic principles of freedom of contract, honesty and credibility, and fairness to avoid the imbalance of interests of the parties, should be able to find a proper way to resolve commercial housing presale contract disputes.