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        原标题：《关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》的理解和适用

    关键词: 房屋租赁；合同纠纷；司法解释；适用；理解     

内容提要: 《关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》，比较2009年颁发的三部司法解释，比较简单的是物业服务合同司法解释，建筑物区分所有权司法解释更多是补充《物权法》规定的不足，大部分也是具体规定，而城镇房屋租赁合同司法解释则很复杂，内容很多，涉及很多理论上的争论、实践中没有定论的问题，内容丰富，法理蕴含深刻，只在个别细节上还有值得斟酌的问题，作为起草三部司法解释的积极参与者，更欣赏这个司法解释。       

《关于审理城镇房屋租赁合同纠纷案件具体应用法律若干问题的解释》，通常叫做城镇房屋租赁合同司法解释（以下简称司法解释），最高人民法院审判委员会于2009年6月22日讨论通过，7月30日公布，9月1日实施。城镇房屋租赁问题不是物权法而是合同法的问题，但是由于与商品房有关，所以又通常把它叫做商品房的司法解释，与物权法有一定关系，也可以将其作为《物权法》的司法解释。   

关于商品房和土地权属问题，到目前为止，最高人民法院一共颁布了五个司法解释，即建筑物区分所有权司法解释、物业服务合同司法解释、城镇房屋租赁合同司法解释、商品房买卖合同司法解释和关于土地使用权纠纷司法解释。这五个司法解释合到一起，关于商品房以及相关的土地权属问题的法律适用规则基本上完备，形成了一个比较完整的体系，在开发土地、建设商品房，商品房买卖问题，怎么行使所有权，如何进行管理使用，怎么去租赁，都有较为完善的规则。    在2009年颁发的三部司法解释，比较简单的是物业服务合同司法解释，解决的是合同范围、合同效力、违约责任和合同权利义务终止等问题。建筑物区分所有权司法解释更多的是补充《物权法》规定的不足，大部分也是具体规定。而城镇房屋租赁合同司法解释则很复杂，内容很多，涉及很多理论上争论、实践中没有定论的问题，内容丰富，法理蕴含深刻，只在个别细节上还有值得斟酌的问题。我作为起草三部司法解释的积极参与者，更欣赏这个司法解释。    这部司法解释共讲了七个问题。    

一、关于城镇房屋租赁合同的效力问题   

司法解释在城镇房屋租赁合同的效力问题上，主要从以下四个方面加以规定：   

（一）城镇房屋租赁合同的概念如何界定   

司法解释没有从正面给城镇房屋租赁合同做概念界定，但是说到了这个意思，即司法解释第一条规定，本解释所称的城镇房屋，是指按照《中华人民共和国城乡规划法》的规定，属于城市规划区、镇规划区范围内的房屋。这是界定什么是城镇房屋。然后规定，当事人约定出租人将上述房屋交付承租人使用、收益、承租人支付租金的合同纠纷案件适用本解释。这表面上是说这个司法解释的适用范围，但是实际讲的是城镇房屋租赁合同的概念，即：当事人约定出租人将城镇房屋交付承租人使用、收益，承租人支付租金的合同，就是城镇房屋租赁合同。   

司法解释规定的是城镇房屋租赁合同，具体讲了城和镇的房屋，但后边又附加了一个说明，如果乡和村里的房屋进行租赁，法律没有特别规定的，也可以参照本司法解释的规定。这等于说，这个司法解释可以包含全部的房屋租赁，原则上都适用同样的规则，只是乡和村的房屋租赁如果有特别规定的，按照特别规定。可以认为，城镇房屋租赁合同差不多相当于房屋租赁合同，不过以城镇房屋租赁合同为主罢了。   

租赁物为城和镇的规划区的房屋，是成立城镇房屋租赁合同的条件。限制性条件是承租人依照国家福利政策承租的公有住房、廉租住房和经济实用房因租赁产生的纠纷案件，不适用本解释，即这些房屋的租赁不按照城镇房屋租赁合同来处理。此外，限价房也应当在限制之列，因为限价房比经济实用房的条件稍微再高一点，但政策是一样的，都是政府给城镇住房极端困难户的优惠，因此价格很低，原因是这些房屋土地使用权是划拨的，而不是有偿出让。目前，公有住房、廉租住房和经济实用房以及限价房出租的情况比较普遍，引起社会强烈反映，政府部门也在干预{1]。有人分析，一种情况是买这种限价房和经济实用房的业主原本可能就不是住房困难户，是钻空子买房；另一种情况是住房确有困难，现在有了房子租出去，可以拿一些租金维持生活。   

是不是对所有的经济实用房和限价房出租的一律要进行干预，确认其无效？我的意见是未必如此。公有住房和廉租住房除外，在限价房或者经济实用房的买卖合同中都有约定，经过一定时间，只要补交土地出让金后，业主就可以转让。既然转让都可以，为什么不可以租呢？因此，不宜说这种租赁一律无效。按照司法解释的规定，它是一个无效的租赁合同，是一个事实的租赁合同关系。但如果业主出租上述房屋已经补交了土地出让金的，则应当认为有效。

Interpretation and Application of Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts

Keywords: housing rental; Contract disputes; Judicial interpretation; Applicable; Understanding

Summary: "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts". Compared with the three judicial interpretations issued in 2009, the simpler one is the judicial interpretation of property service contracts, while the judicial interpretation of building division of ownership mainly supplements the shortcomings of the Property Rights Law, most of which are also specific provisions. However, the judicial interpretation of urban housing lease contracts is complex and contains a lot of content, Involving many theoretical debates and unresolved issues in practice, with rich content and profound legal implications, there are only a few details worth considering. As an active participant in drafting the three judicial interpretations, I appreciate this judicial interpretation even more.

The Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts, commonly referred to as the Judicial Interpretation of Urban Housing Lease Contracts (hereinafter referred to as the Judicial Interpretation), was discussed and approved by the Judicial Committee of the Supreme People's Court on June 22, 2009, announced on July 30, and implemented on September 1. The issue of urban housing rental is not a matter of property rights law, but of contract law. However, due to its relevance to commercial housing, it is often referred to as the judicial interpretation of commercial housing, which is related to property rights law and can also be used as a judicial interpretation of the Property Rights Law.

So far, the Supreme People's Court has issued five judicial interpretations on the issues of commercial housing and land ownership, namely the judicial interpretation of building division ownership, the judicial interpretation of property service contracts, the judicial interpretation of urban housing rental contracts, the judicial interpretation of commercial housing sales contracts, and the judicial interpretation of disputes over land use rights. When these five judicial interpretations are combined, the legal application rules for commercial housing and related land ownership issues are basically complete, forming a relatively complete system. In the development of land, construction of commercial housing, the sale and purchase of commercial housing, how to exercise ownership, how to manage and use, and how to lease, there are relatively complete rules. In the three judicial interpretations issued in 2009, the relatively simple one is the judicial interpretation of property service contracts, which addresses issues such as contract scope, contract effectiveness, breach of contract liability, and termination of contract rights and obligations. The judicial interpretation of the division of ownership of buildings mainly supplements the shortcomings of the provisions of the Property Law, and most of them are also specific provisions. However, the judicial interpretation of urban housing rental contracts is very complex, with a lot of content, involving many theoretical debates and unresolved issues in practice. The content is rich, with profound legal implications, and there are only a few details that are worth considering. As an active participant in drafting three judicial interpretations, I appreciate this judicial interpretation even more. This judicial interpretation covers a total of seven issues.

1、 On the Validity of Urban Housing Lease Contracts

Judicial interpretation mainly regulates the effectiveness of urban housing rental contracts from the following four aspects:

（1） Urban Housing Lease Contract

How to define the concept of urban housing rental contracts

The judicial interpretation did not provide a positive definition of the concept of urban housing rental contracts, but when it comes to this meaning, the first article of the judicial interpretation stipulates that urban housing referred to in this interpretation refers to housing that falls within the scope of urban planning areas and town planning areas in accordance with the provisions of the Urban and Rural Planning Law of the People's Republic of China. This is defining what urban housing is. Then it is stipulated that this interpretation shall apply to contract disputes where the parties agree that the lessor shall deliver the above-mentioned property to the lessee for use, profit, and the lessee shall pay rent. On the surface, this refers to the scope of application of this judicial interpretation, but in reality, it is the concept of urban housing lease contracts, that is, the contract where the parties agree that the lessor will deliver the urban housing to the lessee for use and income, and the lessee pays rent, is the urban housing lease contract.

The judicial interpretation stipulates the urban housing rental contract, which specifically discusses the houses in the city and town, but there is an additional explanation that if the houses in the township and village are leased and there are no special provisions in the law, the provisions of this judicial interpretation can also be referred to. This is equivalent to saying that this judicial interpretation can cover all housing leases, and in principle, the same rules apply. However, if there are special regulations for housing leases in townships and villages, they shall be followed. It can be considered that urban housing rental contracts are almost equivalent to housing rental contracts, but they are mainly based on urban housing rental contracts.

The leased property is a house in the planned area of the city and town, which is a condition for establishing an urban housing lease contract. Restrictive conditions refer to disputes arising from the rental of public housing, low rent housing, and affordable housing rented by the lessee in accordance with national welfare policies. This interpretation does not apply, meaning that the rental of these houses is not handled in accordance with urban housing rental contracts. In addition, limited price housing should also be included in the restrictions, because the conditions for limited price housing are slightly higher than those for economical and practical housing, but the policy is the same. Both are preferential policies given by the government to urban households facing extreme housing difficulties, so the prices are very low because the land use rights for these houses are allocated, not paid for. At present, the situation of renting public housing, low rent housing, affordable housing, and limited price housing is quite common, which has caused strong social reactions, and government departments are also intervening {1]. Some people analyze that one situation is that the owners of such limited price housing and affordable housing may not have been difficult to live in, but may have taken advantage of loopholes to buy a house; another situation is that housing is indeed difficult, and now that there is a house to rent out, they can use some rent to make a living.

Is it necessary to intervene in all rental of affordable and limited price housing to confirm their invalidity? My opinion is not necessarily so. Except for public housing and low rent housing, it is stipulated in the purchase and sale contracts of limited price housing or affordable housing. After a certain period of time, as long as the land transfer fee is paid, the owner can transfer it. Since transfer is possible, why not rent it? Therefore, it is not appropriate to say that all such leases are invalid. According to judicial interpretation, it is an invalid lease contract and a factual lease contract relationship. But if the owner has already paid the land transfer fee for renting the above-mentioned house, it should be considered valid.