【线上云德】疫情期间律师说（九十五）┃商品房买卖合同违约责任的承担

合同是“当事人之间的法律”,对双方当事人具有约束力。违反合同约定则应当承担违约责任。在商品房买卖中，除了常规按照合同法规定要求违约一方承担继续履行、赔偿损失及违约金等责任以外，在《最高人民法院关于审理商品房买卖合同纠纷案件司法解释的理解与适用》第八条、第九条列举了买受人可以请求出卖人承担惩罚性赔偿责任的五种情形,是对商品房销售领域的特殊规定,应优先适用。

A contract is the "Law between the parties" and is binding on both parties. In case of breach of the contract, it shall be liable for breach of contract. In the commercial housing sale, in addition to the regular default party bear continue to perform according to requirements of the contract law, damages and liquidated damages, and other responsibilities, in the "Commercial housing sales contract interpretation" in article 8, article 9 lists the buyer may request the seller liable for punitive damages of five kinds of situations, is the special provisions in the field of commercial housing sales, priority should be applied.

《最高人民法院关于审理商品房买卖合同纠纷案件司法解释的理解与适用》第八条规定:"具有下列情形之一的,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。”因此,只要出卖人在商品房买卖合同订立后,事实上存在先卖后抵、一房数卖的行为,并致前合同目的无法实现,先买受人就可以请求出卖人承担惩罚性损害赔偿责任。出卖人有无过错虽不是承担惩罚性赔偿责任的构成要件,但应作为裁判赔偿金具体金额的酌定情节。同时需要注意的是，实践中,若出卖人虽然实施了先卖后抵、一房数卖的行为,但只要其及时解除了抵押或终止了后合同的履行,则不会存在导致前合同目的无法实现的问题,先买受人也因此不能适用本条规定要求出卖人承担惩罚性赔偿责任。

Stipulated in article 8 of the commercial housing sales contract explanation: "is one of the following circumstances, to the implementation of commodity house business contract purpose not, cannot acquire building vendee shall have the right to request to cancel the contract, return the payment and the interest paid, compensate for the losses, and may require the seller to assume no more than paid the purchase double compensation liability: (1) of commodity house business contract is concluded, the seller did not inform the buyer and the mortgage to a third person; (2) after the commercial house sale contract is concluded, the seller will sell the house to a third party." Accordingly, want to sell a person only after the contract of sale of commodity house is concluded, exist in fact the behavior that sells first hind to arrive, number of a room sells, make before the contract goal cannot realize, the first buyer can request to sell a person to bear punitive damage to compensate for a liability. Whether the seller is at fault or not is not a constitutive element to bear the liability for punitive damages, but it should be used as the deciding circumstances of the specific amount of damages. At the same time, it is important to note that in practice, if the seller while implementing the sell after the arrival of the first, a room number sell behavior, but as long as the timely lifted a mortgage or terminated after the fulfillment of the contract, does not exist the problem of failure to achieve a purpose before the contract, the buyer first and therefore cannot apply the provisions of this article shall request the seller liable for punitive damages.

《最高人民法院关于审理商品房买卖合同纠纷案件司法解释的理解与适用》第九条规定: “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。”对于本条适用需要注意，相较于《消费者权益保护法》而言,《最高人民法院关于审理商品房买卖合同纠纷案件司法解释的理解与适用》属于对商品房销售领域的特殊规定,应优先适用;且商品房买卖数额巨大,增加三倍赔偿将导致双方利益显失平衡。因此,商品房买卖领域的惩罚性赔偿应当直接适用《商品房买卖合同解释》而不能适用《消费者权益保护法》。

"Commercial housing sales contract interpretation" stipulated in article 9: "the seller when the commercial housing sales contract is concluded, with one of the following circumstances, contract is invalid or has been revoked, remove, buyer may request to return the payment and the interest paid and compensate for the losses, and may require the seller to assume no more than paid the purchase double compensation liability: (a) intentionally hide a commodity premises pre-sale permit is not a commodity premises pre-sale permit is facts or providing false; (2) deliberately concealing the fact that the house sold has been mortgaged: (3) deliberately concealing the fact that the house sold has been sold to a third party or the house settled for compensation for demolition and removal." As for the application of this article, it should be noted that, compared with the consumer rights and interests protection law, the interpretation of the contract for the sale of commercial housing belongs to the special provisions in the field of commercial housing sales and should be applied in priority. And the amount of commercial housing sales is huge, the increase of three times compensation will lead to a significant imbalance in the interests of both sides. Therefore, the punitive compensation in the field of commercial housing sales should be directly applied to the "commercial housing sales contract interpretation" but not to the "consumer rights and interests protection law".