虚拟性产权式商铺转让代租纠纷司法认定研究

虚拟性产权式商铺转让代租营销模式在为投资者提供新型投资机会的同时,亦伴随着因投资回报、经营收益等利益纠纷而引发的诉讼。《商品房销售管理办法》第11条规定,地产开发企业不得采取返本销售或者变相返本销售的方式销售商品房,但实践中房地产开发企业采取对虚拟性产权式商铺转让代租的模式规避限制,而我国目前尚未对此情况从立法层面进行定性和规范,司法认定标准尚未完全统一。司法认定中对于虚拟性产权式商铺转让代租合同意思表示真实且不存在法定无效的情形下,应对合同效力作出肯定性评价。对于虚拟性产权式商铺所有权行使应进行必要的限定,注重对集体意志的考量,以维护交易稳定,实现物尽其用。

Study on the judicial confirmation of the disputes on transfer and substituted rental of shops with virtual property rights

The rise of the transfer and substituted rental marketing model of shops with virtual property rights has provided investors with new investment opportunities,and it has also brought many into the courts due to interest disputes such as investment returns and operating income.Article 11 of the“Procedures for the Management of Commercial Housing Sales”stipulates that real estate development enterprises shall not sell commercial housing by way of back-to-back sales or disguised back-to-back sales.However,in practice,real estate development companies have avoided the transfer and substituted rental model of shops with virtual property rights.At present,this situation has not been characterized and regulated from the legislative level,and the judicial recognition standards have not yet been fully unified.In the judicial determination,if the meaning of the transfer and substituted rental contract of shops with virtual property rights is true and there is no statutory invalidity,an affirmative evaluation of the validity of the contract should be made.The exercise of the ownership of shops with virtual property rights should be restricted as necessary,focusing on the consideration of collective will,in order to maintain the stability of transactions and realize the best use of materials.