| Announcement of the Supreme People's Court of the People's Republic of China | | 中华人民共和国最高人民法院公告 |
(Interpretation 7 [2003] of the Supreme People's Court) | |
（法释[2003]7号） |
The Interpretation of the Supreme People's Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses, which was adopted at the 1267th meeting of the Judicial Committee of the Supreme People's Court on March 24, 2003, is hereby promulgated, and shall come into force on June 1, 2003. | |
《最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》已于２００３年３月２４日由最高人民法院审判委员会第１２６７次会议通过。现予公布，自２００３年６月１日起施行。 |
April 28, 2003 | |
二00三年四月二十八日 |
Interpretation of the Supreme People's Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses | |
最高人民法院关于审理商品房买卖合同纠纷案件适用法律若干问题的解释 |
(Adopted at the 1267th meeting of the Judicial Committee of the Supreme People's Court on March 24, 2003; Interpretation 7 [2003] of the Supreme People's Court) | |
（2003年3月24日最高人民法院审判委员会第1267次会议通过） |
The present interpretation is formulated in accordance with the General Principles of Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Urban Real Estate Administration Law of the People's Republic of China, theGuaranty Law of the People's Republic of China and other relevant laws and in combination with the civil judicial practices with a view to correctly and timely trying the cases on dispute over contract for the sale of commodity houses. | |
为正确、及时审理商品房买卖合同纠纷案件，根据《中华人民共和国民法通则》、《中华人民共和国合同法》、《中华人民共和国城市房地产管理法》、《中华人民共和国担保法》等相关法律，结合民事审判实践，制定本解释。 |
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| Article 1 The contract for the sale of commodity houses mentioned in the present interpretation means the contract in which the real estate development enterprise (hereinafter referred to as the seller) sells uncompleted or completed houses to the public and transfers the ownership of the house to the buyer, and the buyer pays the price. | | 第一条 本解释所称的商品房买卖合同，是指房地产开发企业（以下统称为出卖人）将尚未建成或者已竣工的房屋向社会销售并转移房屋所有权于买受人，买受人支付价款的合同。 |
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| Article 2 A contract for advance sale of commodity houses which is concluded between a seller who has not obtained the certificate on permit of advance sale of commodity houses and a buyer shall be ascertained to be invalid, however, if the seller has obtained the certificate on permit of advance sale of commodity houses before litigation, the contract may be ascertained to be valid. | | 第二条 出卖人未取得商品房预售许可证明，与买受人订立的商品房预售合同，应当认定无效，但是在起诉前取得商品房预售许可证明的，可以认定有效。 |
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| Article 3 The advertisements for sale of and the materials for publicity of commodity houses shall be invitations to offer. However, if the statements and promises made by the seller in respect of the houses and the related facilities within the scope of commodity houses development and planning are specific and definite, and are of great influence to the conclusion of the contract for the sale of commodity houses and the determination of the prices of the houses, the above said advertisements and materials shall be regarded as offers. Such statements and promises shall be regarded as the contents of the contract for the sale of commodity houses even if they are not included in the contract. The party concerned shall bear the breach liabilities for his violation if any. | | 第三条 商品房的销售广告和宣传资料为要约邀请，但是出卖人就商品房开发规划范围内的房屋及相关设施所作的说明和允诺具体确定，并对商品房买卖合同的订立以及房屋价格的确定有重大影响的，应当视为要约。该说明和允诺即使未载入商品房买卖合同，亦应当视为合同内容，当事人违反的，应当承担违约责任。 |
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| Article 4 Where the seller receives a deposit from the buyer by means of subscription, order or reservation, etc. as the guaranty for concluding the contract for the sale of commodity houses, the provisions in the law on deposit shall be abided by if the contract for the sale of commodity houses fails to be concluded due to the reason of one party; or the seller shall refund the deposit to the buyer if the contract for the sale of commodity houses fails to be concluded due to the reason for which neither party shall be liable. | | 第四条 出卖人通过认购、订购、预订等方式向买受人收受定金作为订立商品房买卖合同担保的，如果因当事人一方原因未能订立商品房买卖合同，应当按照法律关于定金的规定处理；因不可归责于当事人双方的事由，导致商品房买卖合同未能订立的，出卖人应当将定金返还买受人。 |
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| Article 5 Where an agreement on subscription, order or reservation, etc. of commodity houses contains the main contents of a contract for the sale of commodity houses which are prescribed in Article 16 of the Measures on the Administration of Sale of Commodity houses, and the seller has accepted the money for purchase of houses as stipulated, the agreement shall be ascertained as a contract for the sale of commodity houses. | | 第五条 商品房的认购、订购、预订等协议具备《商品房销售管理办法》第十六条规定的商品房买卖合同的主要内容，并且出卖人已经按照约定收受购房款的，该协议应当认定为商品房买卖合同。 |
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| Article 6 Where a party concerned requests that a contract for advance sale of commodity houses should be confirmed to be invalid with the reason that no formalities of registration and record have been made for the contract in accordance with the laws and administrative regulations, he shall not be supported. | | 第六条 当事人以商品房预售合同未按照法律、行政法规规定办理登记备案手续为由，请求确认合同无效的，不予支持。 |
Where the parties stipulate that the formalities of registration and record shall be a condition for the contract for advance sale of commodity houses to come into validity, such stipulation shall be complied with, unless one party has performed the principal obligation and the other party has accepted it. | |
当事人约定以办理登记备案手续为商品房预售合同生效条件的，从其约定，但当事人一方已经履行主要义务，对方接受的除外。 |
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| Article 7 Where the demolisher concludes the agreement on compensation and resettlement for demolishment with the resettled due to demolishment of houses by means of exchanging ownerships, which clearly stipulates that the former shall compensate and resettle the latter with a house at a certain locality and of certain use, but in fact the former sells the house for compensation and resettlement to a third person, then the latter's request for obtaining the house for compensation and resettlement in priority shall be supported. | | 第七条 拆迁人与被拆迁人按照所有权调换形式订立拆迁补偿安置协议，明确约定拆迁人以位置、用途特定的房屋对被拆迁人予以补偿安置，如果拆迁人将该补偿安置房屋另行出卖给第三人，被拆迁人请求优先取得补偿安置房屋的，应予支持。 |
Where the resettled due to the demolishment of houses requests rescission of the agreement on compensation and resettlement for demolishment, Article 8 of the present interpretation shall be abided by. | |
被拆迁人请求解除拆迁补偿安置协议的，按照本解释第八条的规定处理。 |
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| Article 8 In case of any of the following circumstances, which causes the purpose of a contract for the sale of commodity houses unable to be realized, the buyer who is unable to obtain the house may request the rescission of the contract, refund of the already paid money for purchase of the house and the interest thereof, as well as the compensation for losses, and may also request that the seller should bear the liability for compensating no more than one time of the already paid money for purchase of the house: | | 第八条 具有下列情形之一，导致商品房买卖合同目的不能实现的，无法取得房屋的买受人可以请求解除合同、返还已付购房款及利息、赔偿损失，并可以请求出卖人承担不超过已付购房款一倍的赔偿责任： |
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| (a) after the contract for the sale of commodity houses is concluded, the seller mortgages the house to a third person without notifying the buyer; | | （一）商品房买卖合同订立后，出卖人未告知买受人又将该房屋抵押给第三人； |
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| (b) after the contract for the sale of commodity houses is concluded, the seller sells the house to a third person. | | （二）商品房买卖合同订立后，出卖人又将该房屋出卖给第三人。 |
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Article 9 If, when concluding a contract for the sale of commodity houses, the seller is under any of the following circumstances which causes the contract to be invalid or cancelled or rescinded, the buyer may request the refund of the already paid money for purchase of the house and the interest thereof, as well as the compensation for losses, and may also request that the seller should bear the liability for compensating no more than one time of the already paid money for purchase of houses:
．．．．．． | | 第九条 出卖人订立商品房买卖合同时，具有下列情形之一，导致合同无效或者被撤销、解除的，买受人可以请求返还已付购房款及利息、赔偿损失，并可以请求出卖人承担不超过已付购房款一倍的赔偿责任：
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