商品房买卖预约合同强制履行的适用研究

对于商品房买卖预约合同强制履行的问题,理论界在争议过程中基本形成了"强制缔结本约-强制履行本约"的通说。但是该通说无法避免自身的缺陷,而且司法实务中肯定或否定商品房买卖预约合同强制履行的裁判立场并存,该争议并无真正的定论。通过选取样本,统计分析商品房买卖预约合同实务案例中体现出的违约方、违约原因、卖方和卖方的违约比例等,根据利益平衡和保护购房者一方的理念,应仅支持商品房买受人关于商品房买卖预约合同强制履行的主张,而房地产开发企业作为出卖人的情形,不支持其关于强制履行的请求。

Application of the Commercial Housing Sales Appointment Contracts for Specific Performance

For the specific performance of commercial housing sales appointment contracts, a common theory about"forced to conclude the contract-forced to perform the contract"has been gradually formed in the theoretical circle during the dispute process.But the common theory cannot avoid its defects, and it can do nothing to the fact that the judicial practice, on one hand, agrees the effect of the specific performance of the commercial housing sales appointment contracts, while on the one hand, it disagrees.By selecting samples and doing some statistical analysis about the party in breach, the default reasons, the sellers and the sellers' default rate, etc., according to the concept of benefit balance and protecting the buyers, we should give every support to the commodity buyers so that they can claim the specific performance of commercial housing sales appointment contracts, but give none to the real estate developers who are the sellers.