预售登记是什么意思（商品房预售合同登记备案法律问题）

商品房预售合同登记备案是指房地产开发企业取得预售许可证之后,与买受人签订《商品房买卖合同》之日起一定期限内,应当向项目所在地的房地产交易管理部门申请办理商品房预售合同备案手续。登记备案的义务主体是预售人,即房地产开发企业商;登记备案的主管机关是县级以上人民政府房地产管理部门和土地管理部门;登记备案的内容是商品房预售合同。

Commercial housing pre-sale contract registration and filing refers to the real estate development enterprise after the pre-sale license, and the buyer signed the "Commercial Housing Sales Contract" within a certain period of time, should apply to the project location of the real estate transaction management department for the pre-sale of commercial housing contract registration procedures. The obligatory subject of registration and filing is the presale, that is, the real estate development enterprise; The competent authorities for registration and filing shall be the real estate administrative departments and land administrative departments of the people's governments at or above the county level; The content that registers put on record is commodity house presale contract.

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但需要注意的是，实践中往往会将商品房预售合同登记与商品房预售登记相混淆,将未预售登记的处罚当成对没有进行预售合同登记备案的处罚。 实质上两者虽然有一定关系,但性质完全不同。房地产开发企业在符合预售条件后,必须向县级以上人民政府房地产管理部门办理预售登记,取得商品房预售许可证明,才能开始预售,才能与买受人签订商品房预售合同,才需要进行合同登记备案。可见,商品房预售登记是商品房预售合同登记的前提条件,其目的是取得商品房预售资格,而商品房预售合同登记备案是商品房销售的结果,二者有本质的区别。

But need to pay attention to is, in practice oftenwill be commercial housing pre-sale contract registration and commercialhousing pre-sale registration confusion, will not pre-sale registration as thepenalty for no pre-sale contract registration for the record. In essence,although there is a certain relationship between the two, but the nature iscompletely different. Real estate development enterprises in line with thepre-sale conditions, must to the people's government at the county level abovethe real estate management department for pre-sale registration, obtain thepre-sale permit for commercial housing, to start pre-sale, to sign the pre-salecontract with the buyer of commercial housing, just need to register thecontract. It can be seen that the pre-sale registration of commercial housingis the prerequisite for the pre-sale contract registration of commercialhousing, its purpose is to obtain the pre-sale qualification of commercialhousing, and the pre-sale contract registration of commercial housing is theresult of the sale of commercial housing, the two have essential differences.

因此，对于商品房预售合同而言，登记备案并不是该合同生效的法定要件，《商品房买卖合同解释》第六条明确规定,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。所以,办理登记备案手续不是合同生效的必要要件。同时，登记备案不具有对抗第三人的效力，因为根据《城市房地产管理法》《城市商品房预售管理办法》的规定,预售登记备案实际上是对房地产开发商与买受人之间签订的商品房买卖合同进行登记备案,针对的主要是合同。而预告登记是为保全以物权变动为目的的请求权而进行的不动产登记,预告登记所登记的,是当事人请求权。二者之间有明显区别，故商品房预售合同登记备案并不适用《物权法》所规定的公示对抗第三人。

For commodity house opens to booking a contractregistration and filing, therefore, is not the legal requirements of thecontract comes into force, in the article 6 of the commercial housing sales contractstipulates that the parties to the commodity house opens to booking a contractbeing in accordance with the laws, administrative rules and regulations isdealt with register put on record formalities, request to confirm contractinvalid, no support. Therefore, go through the formalities of registration andfiling is not the necessary elements for the contract to become effective. Atthe same time, registration and filing does not have the effect of fightingagainst the third party, because according to the "Urban real estatemanagement law" "Urban commercial housing pre-sale managementmeasures", pre-sale registration and filing is actually the real estatedevelopers and buyers signed between the commercial housing sales contract forregistration and filing, the main target is the contract. And notice registeris the immovable property that undertakes to preserve the right of claim withreal right change as the purpose to register, what notice register registers,it is the right of claim of party concerned. There are obvious differencesbetween the two, so the registration of commercial housing pre-sale contractdoes not apply to the "Property law" provisions of the publicityagainst the third party.

综上，提醒广大购买者，根据(商品房买卖合同解释》六条的规定,商品房预售合同登记仅是起备案的作用,并不是商品房预售同生效的必备条件。同时、《城市商品房预售管理办法》已经将商品房预售合同登记备案从行政处罚的范围中删除。就法律而言,登记备案也不具有任何物权意义上的效力,登记备案后的商品房买卖合同,其买受人的债权与普通债权处在同一地位。

In conclusion, remind the majority of buyers, according to the “Commercial housing sales contract interpretation” six provisions, commercial housing pre-sale contract registration is only the role of the record, and is not the pre-sale of commercial housing with the necessary conditions. At the same time, "urban commercial housing pre-sale management measures" has been the commercial housing pre-sale contract registration from the scope of administrative punishment to delete. As far as law is concerned, registration and filing does not have the effect on any real right meaning, the commercial house sale contract after registration and filing, its creditor's right of vendee and common creditor's right are in the same position.

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(2023-04-12 15:00:09)