合作合资开发房地产中非显名合作方的连带责任认定研究

Research on the Determination of Joint Liability of Non-Apparent Cooperative Parties in Real Estate Development through Joint Ventures and Cooperative Ventures

摘要: 随着我国房地产行业的发展，合资、合作开发房地产的开发模式因为其开发便利性显著优势也深受开发商的合作青睐，但其中关于合作方的责任认定成为其实务中的常见纠纷类型，而一方以自身名义对外签订施工合同后，非显名合作方是否应对外承担连带责任的问题，因缺乏统一的法律规定，成为司法裁判中的难点问题。本文以合作开发房地产的“三共要件”为核心，先根据现有法律明确合作开发房地产的概念与法人型、非法人型两类合同类型，明确了其与土地使用权转让合同的核心区分标准。随后梳理司法实践中合作方承担与不承担连带责任的两种对立裁判思路及典型案例，针对学界主张连带责任的合伙、共有以及前已废止的《民法通则》中规定的联营三大理论支点逐一展开论证，指出其均无法成为使未显名合作方承担连带责任的合法依据。研究认为，“三共”特征仅约束合作方内部权利义务，连带责任的承担需有明确法律规定或当事人约定，在无法定或约定情形下，应坚守合同相对性原则，不得随意要求非显名合作方对外承担连带责任。本文的研究意在梳理非显名合作方承担责任类型以及原因所在，为司法实践中相关纠纷的处理提供理论参考。

Abstract: With the development of China’s real estate industry, the joint venture and cooperative development model of real estate has been favored by developers due to its significant advantages in development convenience. However, the determination of the responsibilities of the cooperative parties has become a common type of dispute in practice. The issue of whether a non-apparent cooperative party should bear joint liability when one party signs a construction contract in its own name has become a difficult problem in judicial decisions due to the lack of unified legal provisions. This article takes the “three essential elements” of cooperative real estate development as the core. Firstly, it clarifies the concept of cooperative real estate development and the two types of contracts, namely, the corporate type and the non-corporate type, based on existing laws, and clarifies the core distinction criteria from land use right transfer contracts. Then, it sorts out the two opposing judicial thinking patterns and typical cases of whether the cooperative parties should bear joint liability. It then conducts in-depth arguments on the three theoretical support points of partnership, co-ownership, and the former abolished “General Principles of the Civil Law” stipulated joint operation, which are advocated by the academic circle for joint liability, and points out that none of them can be a legal basis for requiring non-apparent cooperative parties to bear joint liability. The research holds that the “three essential” characteristics only constrain the internal rights and obligations of the cooperative parties, and the assumption of joint liability requires clear legal provisions or agreements between the parties. In the absence of legal provisions or agreements, the principle of relativity of contract should be adhered to, and non-apparent cooperative parties should not be arbitrarily required to bear joint liability externally. This article aims to sort out the types and reasons for the responsibilities of non-apparent cooperative parties and provide theoretical references for the handling of related disputes in judicial practice.