Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in Trying Cases Involving Disputes over Contracts on Purchase and Sale of Commodity Premises

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

Promulgating Institution: Supreme People's Court

Document Number: Fa Shi [2003] No. 7

Promulgating Date: 04/28/2003

Effective Date: 06/01/2003

颁布机关: 最高人民法院

文    号: 法释[2003]7号

颁布时间: 04/28/2003

实施时间: 06/01/2003

Text

正文

(Adopted at the 1267th Meeting of the Trial Committee of the Supreme People's Court on 24 March 2003; Effective as of 1 June 2003)

（2003年3月24日最高人民法院审判委员会第1267次会议通过 自2003年6月1日起施行）

In accordance with the General Principles of the 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, the Guaranty Law of the People's Republic of China, and other relevant laws and based on the civil trial practices this Interpretation is formulated in order to ensure the correct and timely trial of cases involving disputes over contracts on purchase and sale of commodity premises.

    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。

   Article 1    For the purposes of this Interpretation, "contract on purchase and sale of commodity premises contracts on purchase and sale of commodity premises" shall mean the contracts by which a real estate enterprise (hereinafter, "Seller") publicly sells premises that are not yet completed or that are already completed and transfers the ownership of such premises to the buyer who pays for the premises.

     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。

   Article 2    Where a Seller concludes a contract on pre-sale of contract on pre-sale of commodity premises with a buyer without obtaining a commodity premises pre-sale permit, such contract shall be deemed as void; however, if a commodity premises pre-sale permit is obtained before an action is instituted, the contract shall be deemed as 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。

   Article 3    Advertisements and promotion materials of commodity premises are invitations to offer. However, specific and determinate explanations and promises made by a Seller concerning premises and related facilities within the scope of a commodity premise development plan that have significant influence on the conclusion of the contract on purchase and sale of commodity premises and the determination of the price of the premises shall be deemed as offers. Such explanations and promises shall be deemed as content of the contract even if they are not included in the contract on purchase and sale of commodity premises, and any party in violation of such content shall be liable for breach of the contract.

     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。

   Article 4    Where a Seller receives an earnest money from a buyer by way of subscription, order, or advance reservation, etc. as guarantee for the conclusion of a contract on purchase and sale of commodity premises, in the event of failure to conclude the contract on purchase and sale of commodity premises due to reasons attributable to one of the parties concerned, the matter shall be handled in accordance with the provisions of law on earnest money; in the event of failure to conclude the contract on purchase and sale of commodity premises due to reasons not attributable to either party, the Seller shall return the earnest money to the buyer.

     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。

   Article 5    Where an agreement of subscription, order, or advance reservation for commodity premises contains the main particulars of a contract on purchase and sale of commodity premises specified in Article 16 of the Measures for Administration of the Sale of Commodity Premises, and the Seller has received the purchase payment for the premises in accordance with the agreement, such agreement shall be deemed as a contract on purchase and sale of commodity premises.

     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。

   Article 6    Where a party concerned files a request for invalidating a contract on pre-sale of commodity premises for the reason that no formalities are completed for the registration and record-filing of the contract in accordance with the law and administrative regulation, such request shall not be upheld.

Where the parties have agreed that the completion of registration and record-filing formalities shall be a condition to the effectiveness of the contract on pre-sale of commodity premises, such agreement shall be followed, unless one party concerned has already fulfilled its main obligations and the other party accepts the performance.

     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。

    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。

   Article 7    In the case of the conclusion between the party demanding removal and the owner of a premises of an agreement on relocation and compensation for the removal through ownership exchange, which clearly specifies that the party demanding the removal shall compensate and relocate the owner with designated premises with specific location and purposes. If the party demanding the removal sells the premises designated for compensation and relocation to a third party and the said owner requests priority in obtaining the premises for compensation and relocation, such request shall be upheld.

Where the said owner requests termination of the agreement on compensation and relocation, the matter shall be handled in accordance with Article 8 of this Interpretation.

     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。

    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。

   Article 8    If any of the following circumstances result in the frustration of the purposes of a contract on purchase and sale of commodity premises, the buyer who fails to obtain the premises may request the termination of the contract and return of the purchase price already paid with interest thereon and the compensation for losses, and may also request compensation by the Seller in an amount not exceeding one time the purchase payment that has been paid:

(1) The Seller, after a contract on purchase and sale of commodity premises is concluded, mortgages the premises to a third party without informing the buyer thereof; or

(2) The Seller, after a contract on purchase and sale of commodity premises is concluded, sells the premises to a third party.

     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:

    (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;

    (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。

   Article 9    Where any of the following circumstances occur when a Seller concludes a contract on purchase and sale of commodity premises, rendering the contract invalid, revoked, or terminated, the buyer may request the return of the purchase price already paid with interest thereon and the compensation for losses, and may also request compensation by the Seller in an amount not exceeding one time the purchase payment that has been paid:

(1) The Seller deliberately conceals the fact that it has not obtained a commodity premises pre-sale permit or provides a false commodity premises pre-sale permit;

(2) The Seller deliberately conceals the fact that the premises being sold have already been mortgaged; or

(3) The Seller deliberately conceals the fact that the premises being sold have already been sold to a third party or designated as premises for compensation and relocation.

     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:

    (一)故意隐瞒没有取得商品房预售许可证明的事实或者提供虚假商品房预售许可证明;

    (二)故意隐瞒所售房屋已经抵押的事实;

    (三)故意隐瞒所售房屋已经出卖给第三人或者为拆迁补偿安置房屋的事实。

   Article 10    Where a buyer fails to obtain the premises as a result of malicious collusion between the Seller and a third party in the conclusion of a separate contract on the purchase and sale of commodity premises and the delivery of the premises to such third party for use, and files a request to invalidate such a contract, the request shall be upheld.

     第十条 买受人以出卖人与第三人恶意串通,另行订立商品房买卖合同并将房屋交付使用,导致其无法取得房屋为由,请求确认出卖人与第三人订立的商品房买卖合同无效的,应予支持。

   Article 11    Transfer of possession of premises shall be deemed as delivery for use of the premises, except as otherwise agreed by the parties concerned.

The risks of damage to, and destruction of, the premises shall be borne by the Seller before the premises are delivered for use, and by the buyer after they are delivered for use. If a buyer receives the Seller's written notification of delivery of the premises and refuses, without justified reasons, to take the delivery of the premises, the risks of damage to, and destruction of, the premises shall be borne by the buyer from the date of delivery for use specified in the written notification, except as otherwise specified in the law or agreed upon by the parties concerned.

     第十一条 对房屋的转移占有,视为房屋的交付使用,但当事人另有约定的除外。

    房屋毁损、灭失的风险,在交付使用前由出卖人承担,交付使用后由买受人承担;买受人接到出卖人的书面交房通知,无正当理由拒绝接收的,房屋毁损、灭失的风险自书面交房通知确定的交付使用之日起由买受人承担,但法律另有规定或者当事人另有约定的除外。

   Article 12    If the premises fails to be delivered for use because of the unqualified main structure, or if the main structure is found to be unqualified upon testing and verification after delivery for use, and the buyer requests termination of the contract and compensation for losses, such request shall be upheld.

     第十二条 因房屋主体结构质量不合格不能交付使用,或者房屋交付使用后,房屋主体结构质量经核验确属不合格,买受人请求解除合同和赔偿损失的,应予支持。

   Article 13    Where any quality problem with the premises seriously affects the normal use for habitation, and the buyer requests termination of the contract and compensation for losses, such request shall be upheld.

In the event of quality problems occurring in the premises that have been delivered for use during the warranty period, the Seller shall bear the liability for repair; if the Seller refuses to repair or delays doing so within a reasonable time limit, the buyer may repair it by himself or have it repaired by another person, and the cost of the repair and other losses caused during the repair period shall be borne by the Seller.

     第十三条 因房屋质量问题严重影响正常居住使用,买受人请求解除合同和赔偿损失的,应予支持。

    交付使用的房屋存在质量问题,在保修期内,出卖人应当承担修复责任;出卖人拒绝修复或者在合理期限内拖延修复的,买受人可以自行或者委托他人修复。修复费用及修复期间造成的其他损失由出卖人承担。

   Article 14    In the event of inconsistency between the floor area or construction area of the premises delivered for use by the Seller and the area specified in the contract on purchase and sale of commodity premises, the matter, if agreed upon in the contract, shall be handled in accordance with the contract; if there is no such agreement or this agreement is unclear in the contract, the matter shall be handled in accordance with the following principles:

(1) If the absolute value of the error ratio of the area is 3% or less, the settlement shall be based on the actual area of the premises according to the price specified in the contract, and the buyer's request for termination of the contract shall not be upheld; and

(2) If the absolute value of the error ratio of the area exceeds 3% and the buyer requests the termination of the contract and the return of the purchase price already paid with interest thereon, such a request shall be upheld. If the buyer agrees to continue the performance of the contract and the actual area of the premises is greater than that specified in the contract, the buyer shall pay the price for the portion of the area within an error ratio of 3% or less according to the price specified in the contract, and the Seller shall pay the price for the portion of the area exceeding the error ratio of 3%, with the ownership going to the buyer; if the actual area of the premises is less than that specified in the contract, the Seller shall return the payment for the portion of the area within an error ratio of 3% or less with interest thereon to the buyer, and the Seller shall return an amount of double the price for the portion exceeding 3% to the buyer.

     第十四条 出卖人交付使用的房屋套内建筑面积或者建筑面积与商品房买卖合同约定面积不符,合同有约定的,按照约定处理;合同没有约定或者约定不明确的,按照以下原则处理:

    (一)面积误差比绝对值在3%以内(含3%),按照合同约定的价格据实结算,买受人请求解除合同的,不予支持;

    (二)面积误差比绝对值超出3%,买受人请求解除合同、返还已付购房款及利息的,应予支持。买受人同意继续履行合同,房屋实际面积大于合同约定面积的,面积误差比在3%以内(含3%)部分的房价款由买受人按照约定的价格补足,面积误差比超出3%部分的房价款由出卖人承担,所有权归买受人;房屋实际面积小于合同约定面积的,面积误差比在3%以内(含3%)部分的房价款及利息由出卖人返还买受人,面积误差比超过3%部分的房价款由出卖人双倍返还买受人。

   Article 15    In accordance with Article 94 of the Contract Law, where the Seller delays the delivery of the premises or the buyer delays the payment of the purchase price for the premises and fails to do so within a reasonable time limit of three months after a reminder, the request of a party concerned for termination of the contract shall be upheld, except as otherwise agreed upon by the parties.

In the absence of provisions in law or agreement between the parties concerned, the reasonable time limit for exercising the right of annulment shall be three months after reminder from the other party. In the absence of reminder from the other party, the right of annulment shall be exercised within one year of the date of its occurrence. If the right is not exercised within the time limit, it shall be extinguished.

     第十五条 根据《合同法》第九十四条的规定,出卖人迟延交付房屋或者买受人迟延支付购房款,经催告后在三个月的合理期限内仍未履行,当事人一方请求解除合同的,应予支持,但当事人另有约定的除外。

    法律没有规定或者当事人没有约定,经对方当事人催告后,解除权行使的合理期限为三个月。对方当事人没有催告的,解除权应当在解除权发生之日起一年内行使;逾期不行使的,解除权消灭。

   Article 16    Where a party concerned requests a reduction of the amount of liquidated damages that is extortionate, this amount of liquidated damages shall be appropriately reduced when it exceeds 30% of the losses caused. Where a party concerned requests an increase of the amount of the liquidated damages that is less than the losses caused, the amount of the liquidated damages shall be determined by the amount of loss caused by the breach of contract.

     第十六条 当事人以约定的违约金过高为由请求减少的,应当以违约金超过造成的损失30%为标准适当减少;当事人以约定的违约金低于造成的损失为由请求增加的,应当以违约造成的损失确定违约金数额。

   Article 17    In the absence of a specific amount of liquidated damages or method for calculation of compensation for losses in a contract on purchase and sale of commodity premises, the amount of liquidated damages or compensation for losses may be determined by referring to the following standards:

In the case of overdue payment, it shall be calculated by referring to the interest rate on outstanding loans set by the People's Bank of China for financial institutions on the basis of the amount of the total unpaid purchase price.

In the case of overdue delivery of the premises for use, it shall be calculated according to the standard of the rent of the premises of the same type in the same locality as published by the relevant competent department or as appraised by a qualified real estate appraisal organization for the period of the delay.

     第十七条 商品房买卖合同没有约定违约金数额或者损失赔偿额计算方法,违约金数额或者损失赔偿额可以参照以下标准确定:

    逾期付款的,按照未付购房款总额,参照中国人民银行规定的金融机构计收逾期贷款利息的标准计算。

    逾期交付使用房屋的,按照逾期交付使用房屋期间有关主管部门公布或者有资格的房地产评估机构评定的同地段同类房屋租金标准确定。

   Article 18    If the buyer fails, due to reasons attributable to the Seller, to obtain the certificate of ownership of the premises before the expiration of the following respective time limits, the Seller shall be liable for breach of the contract, except as otherwise agreed upon by the parties concerned:

(1) The time limit for registration of ownership of the premises as specified in the contract on purchase and sale of commodity premises;

(2) 90 days from the date on which the premises are delivered for use, provided that the subject matter in the contract on purchase and sale of commodity premises is premises not yet completed; and

(3) 90 days from the date on which the contract on purchase and sale of commodity premises is concluded, provided that the subject matter in the contract is completed premises.

In the absence of a specific amount of liquidated damages in the contract or in the case of difficulty in determination of compensation for losses, it shall be calculated by referring to the interest rate on outstanding loans set by the People's Bank of China for financial institutions on the basis of the amount of the total purchase price that has been paid.

     第十八条 由于出卖人的原因,买受人在下列期限届满未能取得房屋权属证书的,除当事人有特殊约定外,出卖人应当承担违约责任:

    (一)商品房买卖合同约定的办理房屋所有权登记的期限;

    (二)商品房买卖合同的标的物为尚未建成房屋的,自房屋交付使用之日起90日;

    (三)商品房买卖合同的标的物为已竣工房屋的,自合同订立之日起90日。

    合同没有约定违约金或者损失数额难以确定的,可以按照已付购房款总额,参照中国人民银行规定的金融机构计收逾期贷款利息的标准计算。

   Article 19    Where the buyer fails, due to reasons attributable to the Seller, to register ownership of the premises after one year from the expiry of the time limit for registration of ownership of the premises specified in a contract on purchase and sale of commodity premises or in Article 33 of the Regulations on Administration of Urban Real Estate Development and Operation, the request of the buyer for termination of the contract and compensation for losses shall be upheld.

     第十九条 商品房买卖合同约定或者《城市房地产开发经营管理条例》第三十三条规定的办理房屋所有权登记的期限届满后超过一年,由于出卖人的原因,导致买受人无法办理房屋所有权登记,买受人请求解除合同和赔偿损失的,应予支持。

   Article 20    Where a Seller concludes with an exclusive distributor a contract on exclusive sale of commodity premises specifying that the exclusive distributor shall sell, in the name of the Seller, the premises developed and constructed by the Seller, the premises that have not been sold after the expiration of the period of exclusive sale shall be purchased by the exclusive distributor at the price of exclusive sale specified in the contract, except as otherwise agreed upon by the parties.

     第二十条 出卖人与包销人订立商品房包销合同,约定出卖人将其开发建设的房屋交由包销人以出卖人的名义销售的,包销期满未销售的房屋,由包销人按照合同约定的包销价格购买,但当事人另有约定的除外。

   Article 21   Where a Seller sells on its own the premises that have been agreed to be sold by an exclusive distributor, and the exclusive distributor requests compensation for losses from the Seller, such request shall be upheld, except as otherwise agreed upon by the parties.

     第二十一条 出卖人自行销售已经约定由包销人包销的房屋,包销人请求出卖人赔偿损失的,应予支持,但当事人另有约定的除外。

   Article 22    In the event of a dispute arising from a contract on purchase and sale of commodity premises between a buyer and a Seller, the people's court shall notify the exclusive distributor to participate in the litigation. If the Seller, the exclusive distributor, and the buyer have a clear agreement on their respective rights and obligations, the position of each party in the litigation shall be determined according to such agreement.

     第二十二条 对于买受人因商品房买卖合同与出卖人发生的纠纷,人民法院应当通知包销人参加诉讼;出卖人、包销人和买受人对各自的权利义务有明确约定的,按照约定的内容确定各方的诉讼地位。

   Article 23    Where it is agreed in a contract on purchase and sale of commodity premises that the buyer shall pay by secured loan and the contract on purchase and sale of commodity premises cannot be performed because of the failure to conclude the contract of secured loan for the commodity premises due to reasons attributable to one of the parties concerned, the other party may request a termination of the contract and compensation for losses. Where the performance of the contract on purchase and sale of commodity premises cannot be continued because of the failure to conclude a contract of secured loan for the commodity premises due to reasons not attributable to any of the parties concerned, a party concerned may request the termination of such contract on purchase and sale of commodity premises, and the Seller shall return the principal of the purchase payment for the premises with interest thereon or the earnest money received to the buyer.

     第二十三条 商品房买卖合同约定,买受人以担保贷款方式付款、因当事人一方原因未能订立商品房担保贷款合同并导致商品房买卖合同不能继续履行的,对方当事人可以请求解除合同和赔偿损失。因不可归责于当事人双方的事由未能订立商品房担保贷款合同并导致商品房买卖合同不能继续履行的,当事人可以请求解除合同,出卖人应当将收受的购房款本金及其利息或者定金返还买受人。

   Article 24    Where a contract on purchase and sale of commodity premises is determined to be invalid, or is revoked or terminated, thereby resulting in the frustration of the purposes of the contract of secured loan for the commodity premises, the request of a party concerned for termination of the contract of secured loan for the commodity premises shall be upheld.

     第二十四条 因商品房买卖合同被确认无效或者被撤销、解除,致使商品房担保贷款合同的目的无法实现,当事人请求解除商品房担保贷款合同的,应予支持。

   Article 25   Where one party to a contract on purchase and sale of commodity premises that makes payment in the form of secured loan files request for invalidating, revoking, or terminating the contract on purchase and sale of commodity premises, and the guaranteed party files claims as a third person with independent claims, a consolidated trial shall be conducted for such claims and the dispute over the contract of secured loan for commodity premises. If no claims are filed by the guaranteed party, only the dispute over the commodity premises purchase and sale contract shall be handled. If the guaranteed party files a separate action for the dispute over the contract of secured loan for commodity premises, a consolidated trial may be conducted for such action and the dispute over the contract on purchase and sale of commodity premises.

In the event of termination of the contract of secured loan for the commodity premises due to the invalidation, revocation, or termination of a contract on purchase and sale of commodity premises, the Seller shall return the principal of the premises purchase loan and the premises purchase payment with interest thereon it has received to the guaranteed party and the buyer respectively.

     第二十五条 以担保贷款为付款方式的商品房买卖合同的当事人一方请求确认商品房买卖合同无效或者撤销、解除合同的,如果担保权人作为有独立请求权第三人提出诉讼请求,应当与商品房担保贷款合同纠纷合并审理;未提出诉讼请求的,仅处理商品房买卖合同纠纷。担保权人就商品房担保贷款合同纠纷另行起诉的,可以与商品房买卖合同纠纷合并审理。

    商品房买卖合同被确认无效或者被撤销、解除后,商品房担保贷款合同也被解除的、出卖人应当将收受的购房贷款和购房款的本金及利息分别返还担保权人和买受人。

   Article 26   Where the buyer has neither repaid the loan according to the contract of secured loan for commodity premises nor completed, together with the guaranteed party, the formalities for registering the mortgage on the premises, and the guaranteed party files an action against the buyer requesting the disposition of the buyer's contractual rights under the contract on purchase and sale of commodity premises, the seller shall be notified to participate in the litigation. If the action filed by the guaranteed party is against the Seller at the same time, the Seller shall be listed as co-defendant if the Seller has provided a warranty for the contract of secured loan for commodity premises.

     第二十六条 买受人未按照商品房担保贷款合同的约定偿还贷款,亦未与担保权人办理商品房抵押登记手续,担保权人起诉买受人,请求处分商品房买卖合同项下买受人合同权利的,应当通知出卖人参加诉讼;担保权人同时起诉出卖人时,如果出卖人为商品房担保贷款合同提供保证的,应当列为共同被告。

   Article 27   Where the buyer fails to repay the loan according to the contract of secured loan for commodity premises but has already obtained the certificate of ownership of the premises and has completed, together with the guaranteed party, the formalities for registering the mortgage on the premises, and the mortgagee requests the buyer to repay the loan or requests repayment from the mortgaged premises on a priority basis, the Seller shall not be added as a party concerned except where the Seller has provided a warranty.

     第二十七条 买受人未按照商品房担保贷款合同的约定偿还贷款,但是已经取得房屋权属证书并与担保权人办理了商品房抵押登记手续,抵押权人请求买受人偿还贷款或者就抵押的房屋优先受偿的,不应当追加出卖人为当事人,但出卖人提供保证的除外。

   Article 28    This Interpretation shall take effect as of 1 June 2003.

In the event of a case involving a dispute over a commodity premises purchase and sale contract concluded after the implementation of the Urban Real Estate Administration Law of the People's Republic of China, If the case remains at the first instance or second instance procedure after the promulgation and implementation of this Interpretation, this Interpretation shall apply.

In the event of a case involving a dispute over a commodity premises purchase and sale contract concluded after the implementation of the Urban Real Estate Administration Law of the People's Republic of China for which a final judgment was rendered before the promulgation and implementation of this Interpretation, if the case is retried upon the application of a party concerned or a decision for retrial rendered pursuant to trial supervision procedures, this Interpretation shall not apply.

In the event of an act of sale and purchase of commodity premises occurring before the implementation of the Urban Real Estate Administration Law of the People's Republic of China, the laws and regulations in effect at that time and the Answers of the Supreme People's Court to Certain Issues Concerning the Trial of Cases Involving Real Estate Development and Operation Occurred Prior to the Implementation of the "Urban Real Estate Administration Law" shall apply.

     第二十八条 本解释自2003年6月1日起施行。

    《中华人民共和国城市房地产管理法》施行后订立的商品房买卖合同发生的纠纷案件,本解释公布施行后尚在一审、二审阶段的,适用本解释。

    《中华人民共和国城市房地产管理法》施行后订立的商品房买卖合同发生的纠纷案件,在本解释公布施行前已经终审,当事人申请再审或者按照审判监督程序决定再审的,不适用本解释。

    《中华人民共和国城市房地产管理法》施行前发生的商品房买卖行为,适用当时的法律、法规和《最高人民法院〈关于审理房地产管理法施行前房地产开发经营案件若干问题的解答〉》。