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长期以来,我国法学界和司法实践较为统一地认为:房地产转让合同是一种要式合同,而要式合同与不要式合同成立的时间是不相同的,不要式合同因当事人意思表示一致而成立,要式合同因办理产权转移登记手续而成立.最高人民法院1990年2月17日在《关于公产房屋的买卖及协议签订后一方可否翻悔问题的复函》([1989]民他字第50号(中指出;“未办理产权转移登记手续,应认为该民事法律行为依法尚未成立,一方翻悔是允许的”.我们认为,这是我国法学理论和司法实践中的一个误区,它使我们长期陷于一种难以自圆其说的怪圈.接照上述观点,动产合同的成立和履行并无歧义,但将不动产买卖合同作为一种要式合同,问题就出来了.所谓要式合同,即必须具备一定的法律形
For a long time, the jurisprudence of our country and judicial practice have unified the view that the real estate transfer contract is a master contract, and the time between the master contract and the unimportant contract is not the same. The unofficial contract is established because the parties agree , The important contract was set up due to the registration of property right transfer.The Supreme People's Court on February 17, 1990, in the “reply on the issue of whether a party can regret the sale of public housing and the signing of the agreement” ([1989] No. 50 (Pointed out that “without the registration of property rights transfer should be considered that the civil legal act has not yet been established according to law, one regret is allowed.” We think this is a misunderstanding of our jurisprudence and judicial practice, it allows us to long-term In a difficult to justify the circle.According to the above point of view, the establishment and implementation of movable property contract is not ambiguous, but the real estate sales contract as a major contract, the problem came out.There is a so-called style contract, which must have a certain Legal form