Contract Issues in Real Estate Development and Operation

Author: Zhu Zhengfu
Publisher:
Publish Date: 2004-01-01
Features: "Land is the mother of wealth," regardless of how the economy and society develop, land and real estate rights based on it have always been the main components of social wealth. The series of legal issues arising from real estate development, operation, and management are also issues that legal professionals need to seriously consider and address. In fact, traditional property law is centered around real estate and the various rights associated with it. Due to specific historical reasons, China gradually developed a set of real estate laws and regulations in the absence of a civil property law as part of its legal framework. After the founding of the People's Republic of China, the newly established state power promulgated the Land Reform Law in 1950, marking the beginning of the state's policy intervention and adjustment of real estate relationships. Since the formation of a highly centralized planned economic management system, China has primarily adjusted real estate relationships through administrative means. This management system, both in form and content, requires a real estate law with strong administrative characteristics, rather than the traditional civil property law system centered around concepts such as "sacred private rights" and "private legal autonomy," which emphasizes the confirmation and protection of real estate property rights. As a result, most rules governing property rights between equal subjects have been absorbed by real estate law, giving it a certain degree of administrative and public law characteristics. Since the reform and opening-up, although legislation related to real estate has been increasing, these laws and regulations still primarily reflect the government's vertical management and supervision over real estate relationships. For example, the Provisional Regulations on the Construction Land of Sino-foreign Joint Venture Enterprises promulgated by the State Council in 1980, the Regulations on the Construction Land Use in Villages and Towns issued by the State Council in 1982, the Land Administration Law promulgated by the Standing Committee of the National People's Congress in 1986, the Urban Planning Law enacted by the Standing Committee of the National People's Congress in 1989, the Provisional Regulations on the Transfer of Urban State-owned Land Use Rights issued by the State Council in 1990, and the Urban Real Estate Management Law promulgated by the Standing Committee of the National People's Congress in 1994, etc. Although these laws and regulations are important components of China's real estate law, their legislative spirit and adjustment mechanisms still retain a strong administrative color, emphasizing the state's planning, management, supervision, and regulation of real estate relationships. Strictly speaking, real estate law is a typical comprehensive legal system, with its development, operation, and management processes involving numerous basic civil and administrative legal systems, such as property law, contract law, land administration law, urban planning law, real estate management law, company law, and others. The legal relationships within this system are intricate and complex. Since the late 1980s, with the implementation of the land use rights transfer system, China's real estate market has experienced сверхнормальное rapid development, and the institutional arrangements related to it have gradually become clearer through a process from confusion to clarity. During the establishment and improvement of these institutions, a considerable number of legal disputes have arisen due to the lack of regulations, and the trend has been on the rise year by year. Therefore, although China's legislation on real estate management is gradually becoming more comprehensive, the legal system concerning real estate rights, as part of the property law category of real estate law, still needs further improvement. The three authors of this book are based in Guangdong, a region with the most developed real estate market, and have long been engaged in real estate legal practice. Therefore, the book closely focuses on the contract legal issues in each stage of real estate development, operation, and management, avoiding a superficial discussion of legal principles and rules, as well as simplistic legal popularization. In this book, Lawyer Zhu Zhengfu and others attempt to take the process of real estate development, operation, and management as the main thread, with the various contracts and legal issues involved as the starting point, to provide a more comprehensive perspective on real estate law and to offer their own insights into the conflicts and balances of interests among all parties involved in the development, operation, and management of real estate. I believe this is a valuable exploration. Law is a highly practical social science, and the prosperity of legal studies depends on the collective efforts of all legal professionals. As legal practitioners at the forefront of legal application, lawyers have a unique perspective on legal issues, and therefore, their research at the theoretical level of law is also very important. Hence, I am delighted to see this book published and am happy to recommend it to the readers. May the publication of this book serve as a new bridge between legal practice and theoretical research.