近年來，隨著我國房地產市場的日益繁盛，尤其是隨著房價在短期快速增長的情況下，商品房買賣中出現大量合同糾紛湧入法院。
In recent years, with the increasingly prosperous real estate market in China, especially with the rapid growth of the housing price in a short period of time, a large number of contract disputes have flooded the court in the commercial housing sales.
通過中國裁判文書網查詢顯示，2019年至今，全國涉及商品房買賣合同糾紛這一案由的案件共計17743件；聚焦陝西省，涉及商品房買賣合同糾紛案由的案件就有800件。而對於因商品房預售合同而產生的法律糾紛，2019年至今，全國涉及案件共計72279件，陝西省包含1583件。其中還不包含調解結案的，該類案件普遍存在買受人在與開發商簽訂合同時對於預約合同及其銷售廣告的認識不清而造成糾紛的發生，那麼商品房認購協議如何定性？
According to an inquiry on the China judgment document network, a total of 17,743 cases involving contract disputes over commercial housing have been filed nationwide since 2019. Focusing on shaanxi province, there are 800 cases involving commercial housing contract disputes. As for legal disputes arising from commercial housing pre-sale contracts, 72,279 cases have been involved nationwide since 2019, including 1,583 cases in shaanxi province. Among them also does not contain mediation to settle a case, this kind of case generally exists when the buyer signs a contract with the developer to the appointment of the contract and its sales advertising understanding is not clear and cause the occurrence of the dispute, so how to determine the commercial housing subscription agreement?
商品房認購協議是指買賣合同雙方當事人在簽訂商品房預售合同或商品房現房買賣合同之前所簽訂的文書,是對雙方交易房屋有關事宜的初步確認。那麼預約合同應該如何定性？預約合同是當事人雙方為將來訂立正式合同就相關事宜達成的書面協議,其最顯著的特徵是:它約定的是當事人雙方為將來訂立正式合同應履行的繼續磋商的義務。預約合同是獨立的合同,單獨發生法律效力,一經簽訂立即發生效力,無須等到簽訂本約的條件成立時才生效。
Commodity house subscribe agreement is to point to the document that both parties of contract of sale contract are signed before signing commodity house presale contract or commodity house present house buy and sell contract, it is pair of sides trades the preliminary confirmation that building concerns a matter. Then how to define the appointment contract? An appointment contract is a written agreement reached by the parties to conclude a formal contract for the future. The most significant feature of the agreement is that the parties agree to continue to negotiate for the future formal contract. An appointment contract is an independent contract with legal effect. It shall take effect once it is signed and shall not take effect until the conditions for signing this contract are established.
《買賣合同解釋》第二條對預約作出了明確規定: 「當事人簽訂認購書、訂購書、預訂書、意向書、備忘錄等預約合同,約定在將來一定期限內訂立買賣合同,一方不履行訂立買賣合同的義務,對方請求其承擔預約合同違約責任或者要求解除預約合同並主張損害賠償的,人民法院應予支持。」實踐中預約合同包括認購書、訂購書、預訂書、意向書、備忘錄、允諾書、購買不動產的定金收據、原則協議、協議要點、談判紀要等。
In the article 2 sales contract to make an appointment made specific provision: "the parties signed subscription book, order books, book, letter of intent and memorandum appointment contract, agreed to enter into a sales contract in the future a certain period of time, the obligation of one party fails to perform the buying and selling contract, the other party requests the undertake responsibility of breach of contract or the appointment contract request the termination of the appointment contract and claims for damages, the people's court shall support." In practice, the reservation contract includes subscription letter, order book, reservation book, letter of intent, memorandum of understanding, promise book, deposit receipt of real estate purchase, agreement in principle, agreement points, minutes of negotiation, etc.
在簽訂預約合同以後需要履行哪些法律義務呢？根據最高人民法院發布的《買賣合同解釋》之規定，在預約效力期間,雙方當事人主要有以下義務:
(1)實現交易義務，首先我們應當認定該預約合同為有拘束力的合同，在條件成熟的情況下,應當通過協商將已簽不確定的條款變為確定條款，結合預約中的已決條款,促使本約成立,實現交易義務的實際全面履行；
(2)當事人應當遵循誠實信用原則,儘量履行協商和談判義務。在簽訂預約合同後,當事人應當按照預約所確定的原則,履行填充確定條款和明確不確定條款的義務,最終訂立本約，使預約合同確立的核心條款得以履行。
What are the legal obligations that need to be fulfilled after signing an appointment contract? According to the "interpretation of sales contract" issued by the supreme people's court, during the validity of the appointment, the parties mainly have the following obligations:
1. In order to realize the transaction obligation, we should firstly identify the reservation contract as a binding contract. When conditions are ripe, we should change the signed and uncertain terms into definite terms through negotiation, and combine with the settled terms in the reservation to establish this contract and realize the actual and comprehensive performance of the transaction obligation.
2. The parties shall abide by the principle of good faith and try their best to perform the obligations of consultation and negotiation. After signing the reservation contract, the parties shall, in accordance with the principles determined by the reservation, perform the obligation of filling in the determination clause and clarifying the uncertainty clause, and finally conclude this contract to enable the core clauses established by the reservation contract to be fulfilled.