[case]
Appellant (plaintiff in the original trial) is a signal factory in Shenyang, and his domicile is Tiexi District, Shenyang.
The legal representative is Zhang, director of the factory.
Appellee (defendant in the original trial) Bumou, male,/kloc-0, born in June, 970, lives in Yuhong District, Shenyang.
Basic facts of the case
It was found through trial that the plaintiff invested in the establishment of an activated carbon factory. In 2000, the plaintiff obtained the state-owned land use certificate in the name of activated carbon factory of Pan Da Town Enterprise Company, and the type of use right was allocation. 200 1, 1, 2 1, the original defendant and the defendant signed a lease agreement, agreeing to lease the whole plant of the activated carbon branch to Bumou for three years, that is, from 20021to 14 years. Article 5 of the contract stipulates that "the appellant shall notify the appellee two months in advance of the sale of the house, and if it cannot be carried out in the winter between June 165438+ 10 and March of the following year, the appellant shall pay the appellee 40,000 yuan for the relocation loss during the lease period." On February 1 2002, the appellant's factory director's office meeting decided to sell Mabei Village Activated Carbon Factory. On April 25th, the appellant telephoned the appellee Bumou to publicly auction the activated carbon factory in Ma Bei Village on the 27th of the same month. The appellee was unable to participate in the bidding because he was going to other places, indicating that he entrusted others to participate in the bidding. On 27th of the same month, Wu Mou, the brother-in-law of the Appellee, participated in the bidding in the name of the Appellee. After 10 rounds of bidding, Shenyang Zhongtian Biodiesel Processing Experimental Factory won the bid with 13 10000 yuan. Wu Mou, the brother-in-law of the Appellee, offered the highest bid of 6,543,800 yuan+270,000 yuan in the name of the Appellee. On the same day, the Appellant issued a notice to the Appellee, informing him that the activated carbon branch was auctioned and asking the Appellee to move out before June 30th of the same year. On the 28th of the same month, the appellant (Party A) signed the Transfer Agreement with Shenyang Zhongtian Biodiesel Processing Experimental Factory (Party B), stipulating that Party A would transfer the land use right of the activated carbon branch and the above-ground buildings to Party B, and Party B would pay the transfer fee of 65,438+0,365,438+000,000 yuan to Party A within 60 days after signing this agreement. After Party A received the transfer fee, On April 30th of the same year, the Appellee wrote back to the Appellant, expressing disapproval of the relocation, and demanding compensation for direct economic loss of RMB800,000 if forced to relocate. After that, the two sides negotiated many times. On June 4th of the same year, the Appellee demanded that the compensation be reduced to 365,000 yuan, and the Appellant advocated that it should be implemented according to the signed lease agreement.
[trial]
Ruling and judgment of the court of first instance
The court of first instance held that the lease contract signed by the original defendant was legal and valid, and the conditions stipulated in the contract that the plaintiff could terminate the contract had not been fulfilled. Article 5 stipulates that "the lessor changes" is essentially an obligation that the plaintiff should perform, but the plaintiff failed to perform it correctly, that is, it failed to notify the defendant two months before the sale, only two days before the sale, which violated the reasonable time limit stipulated by law and failed to take any remedial measures, so that the plaintiff failed to enjoy the legally owned rights. The sale of the leased property does not necessarily terminate the lease contract, and the plaintiff's request to terminate the contract is obviously inappropriate. According to the provisions of Articles 60, 107, 224 and 230 of People's Republic of China (PRC) Contract Law, the judgment is as follows: 1. The lease contract signed by the original and the defendant shall continue to be performed; 2. Reject the plaintiff's claim.
The appellant's appeal request and the appellee's defense reasons.
After the verdict was pronounced, a signal factory in Shenyang filed an appeal on the grounds that the court of first instance did not find out the facts and applied the law improperly. The reasons are as follows: the appellant has fulfilled the obligation of notification and met the conditions for terminating the contract. On April 25th, 2002, the Appellant informed the Appellee that Bumou would auction Ma Bei Village Activated Carbon Factory in public on the 27th of the same month, but the Appellee could not participate in the bidding because she was going to other places, indicating that she entrusted others to participate in the bidding. On 27th of the same month, Wu Mou, the brother-in-law of the Appellee, participated in the bidding in the name of the Appellee. I didn't buy it because the offer was too low. After that, the appellant gave the appellee two months to move, which met the conditions for terminating the contract. Therefore, the second instance is requested to decide to terminate the contract according to law.
The appellee Bumou believes that it is correct for the court of first instance to judge that the appellant failed to fulfill the notification obligation and continued to perform the contract, and demanded that the original judgment be upheld.
The determination and judgment of the court of second instance
The court of second instance held that the lease agreement signed by both parties on 2001121was valid. The appellant made the transfer according to the contents of the agreement signed by both parties, and informed the appellee in time. The appellee entrusts his brother-in-law to participate in the bidding for the factory building. When the Appellant signed the transfer agreement with the winning bidder, the Appellee was allowed two months to move, which met the conditions for the termination of the contract agreed by both parties. Therefore, the lease agreement signed by both parties shall be terminated. In view of the stipulation in Article 5, paragraph 1 of the lease agreement that "Party A shall notify Party B two months before selling the house, and it shall not be carried out in the winter between June 165438+ 10 and March of the following year", it is mainly because it is not convenient to carry out civil construction and install forging machinery and equipment in winter, so this agreement shall be observed when determining the dissolution time. To sum up, according to Articles 1, 106,11and 153 of the Civil Procedure Law of People's Republic of China (PRC). 1. Revoke the civil judgment of Yuhong District People's Court (2002) No.319 of Chongqing Jing Zi Chu; 2. Before April 15, 2003, after this judgment came into effect, the Appellee vacated the factory building of an activated carbon branch of a signal factory in Shenyang, Mabei Village, Pan Da Town, Yuhong District, Shenyang, and did not move it within the time limit. According to Article 232 of the Civil Procedure Law of People's Republic of China (PRC) and Opinions of the Supreme Court on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC). And pay the factory building use fee (calculated from June, 2002 1 65438+1October, 21day until the factory building is vacated and delivered to the appellant, calculated at 25,000 yuan per year); Three. The appellant shall pay the appellee a relocation fee of 40,000 yuan within 15 days after this judgment comes into effect; 4. Reject other claims of both parties.
[analysis]
This case involves a very sensitive issue in the current real estate trial-the validity of lease transfer of state-owned allocated land use rights.
In the past, we always thought that according to the provisions of Article 39 of the Urban Real Estate Management Law, "if the land use right is obtained by allocation, the transfer of real estate shall be reported to the people's government with approval authority for examination and approval in accordance with the provisions of the State Council. If the people's government with the approval authority approves the transfer, the transferee shall go through the procedures for transferring the land use right and pay the transfer fee for the land use right in accordance with the relevant provisions of the state. " Lease or transfer without approval harms the interests of the state and should be an invalid contract.
The author believes that after the implementation of the new Contract Law, such contracts are still considered invalid under the circumstances of encouraging and protecting transactions and transaction safety, which is inconsistent with the principle of protecting party autonomy and encouraging transactions in the Contract Law. But should be treated differently according to different situations.
First of all, it is necessary to distinguish between "approval registration" as an effective element of a contract and "public registration" when the property right of the subject matter of the contract changes. According to the theory of juristic act of real right in civil law, real right belongs to the right of domination in law, and creditor's right belongs to the right of claim in law (the right of claim becomes binding between the parties after concluding a contract). Professor Sun, director of the Civil Law Research Office of China Academy of Social Sciences, believes that "the registration of real estate is a sign of the success of the establishment of property rights, and only after registration can property rights be obtained according to law. A contract for the transfer of property rights concluded between the parties is binding on the creditor's rights between the parties; However, it is precisely because the right of claim is only binding on the parties, so the establishment and entry into force of this contract do not need to be based on the registration of real estate, and the creditor's rights are not binding on the third party, so the establishment of the contract does not need publicity, that is, the contract can be established and entered into force because the parties have the same meaning. The validity of the contract is not a sufficient and necessary condition for the validity of the change of property rights, and the property rights that naturally occur due to the validity of the contract cannot be established or take effect. " It can be seen that registration, as the publicity effect of real right change, does not directly affect the effectiveness of the contract. Without registration, a contract concluded between the parties is valid and protected by law as long as it does not conform to the statutory invalidity stipulated in Article 52 of the Contract Law of People's Republic of China (PRC) and does not violate the prohibitive provisions of laws and regulations. Unregistered real estate transfer contracts only have no effect against third parties.
Secondly, it is necessary to determine the effectiveness of the contract in combination with the situation of the subject who enjoys the land use right. According to the Urban Real Estate Management Law, the subject of state-owned land use right allocation is limited. Article 23 of the law stipulates that "the land use right of the following construction land is really necessary and can be allocated with the approval of the people's government at or above the county level according to law: (1) land used by state organs and military land; (two) urban infrastructure and public welfare land; (3) Land for energy, transportation, water conservancy and other projects supported by the state; (4) Other land as stipulated by laws and administrative regulations. " . However, in practice, due to the nonstandard management of state-owned allocated land use rights during the planned economy period and historical reasons, the subjects enjoying state-owned allocated land use rights have gone far beyond the above scope, and many operating enterprises in the production and circulation field also enjoy state-owned allocated land use rights. This right of use becomes a kind of property right of enterprises, and its circulation is conducive to revitalizing assets and promoting enterprises to improve efficiency; It is conducive to improving the use value of state-owned land and promoting the comprehensive transformation of cities. So it is obviously unrealistic to restrict its circulation.
If the owner of the land use right is a company, enterprise or other organization, the lease or transfer contract of the land use right shall be recognized as a valid contract. Article 45 of the Provisional Regulations on Assignment and Transfer of Urban State-owned Land Use Rights stipulates that "with the approval of the land management departments and real estate management departments of the municipal and county people's governments, the land use rights and the ownership of the above-ground objects can be transferred, leased or mortgaged: (1) The land users are companies, enterprises, other organizations and individuals; (2) Having a state-owned land use certificate; (three) a description of the legal property rights of the above-ground buildings and other attachments; (4) Signing a land use right transfer contract and paying the land use right transfer fee to the local city or county people's government or paying the land use right transfer fee with the proceeds from transfer, lease or mortgage. " Article 55 of the Urban Real Estate Management Law also stipulates that "if a house owner rents a house built on state-owned land that has obtained the right to use by way of allocation for profit, he shall turn over the land income included in the rent to the state." It can be seen that the lease transfer contract signed by the above-mentioned subjects should be considered valid as long as the land transfer fee is paid and the national interests are not harmed. When the court confirms that the contract is valid and both parties perform it according to the contract, the transferee must pay the transfer fee, become the legal land use right holder, go through the relevant examination and approval registration procedures, and perform the transfer of property rights, thus protecting the interests of the country. In 2003, the Supreme Court issued the second-instance judgment No.2, and Gansu Lanzhou Hongliyuan Trading Co., Ltd. and Gansu Chengxin Wire and Cable Co., Ltd. appealed the dispute over the house lease contract, confirming the validity of the contract, which reflected this spirit. It is worth learning that the Supreme Court has repeatedly emphasized in the judgment of this case that "because the land where the leased house is located is state-owned allocated land, according to Article 55 of the Urban Real Estate Management Law and Article 25 of the Measures for the Administration of Urban Housing Leasing promulgated by the Ministry of Construction, if the owner rents the house built on the state-owned land that has obtained the right to use by allocation for profit, the land income included in the rent shall be turned over to the state. The land revenue shall be collected and remitted by the real estate management department of the people's government of the city or county in accordance with the Interim Measures for the Administration of the Collection of Income from the Paid Use of State-owned Land and the Interim Provisions on Some Financial Issues Concerning the Income from the Paid Use of State-owned Land of the Ministry of Finance. The State Council promulgated new regulations, from its provisions. Accordingly, the first-instance judgment found that the house lease contract was valid and correct. " Obviously, the Supreme People's Court has fully considered the relevant provisions of administrative regulations when deciding to confirm the validity of the contract in this case, and should turn over the land proceeds to the state when reminding both parties to perform the contract.
When discussing this case, the judicial committee found that the lease contract between Shenyang Railway Signal Factory and Pubiao was legal and valid, which also reflected the above legal spirit.
For land users who are social welfare units such as state organs, schools, hospitals, etc., the state-owned allocated land use rights and above-ground buildings they enjoy belong to municipal public facilities with social welfare nature. If they are rented or transferred without approval, the land use will be substantially changed, which violates the mandatory provisions of the Land Management Law and harms the interests of the state and society. The lease transfer contract of state-owned allocated land use right shall be deemed invalid. The Supreme People's Court announced in 2002 that "Kunming Public Security Fire Brigade v. Chongqing Dianjiang Composite Insulation Material Factory and Kunming Kobayashi Hotel Co., Ltd." ruled that the agreement of Kunming Public Security Fire Brigade to lease public facilities for municipal fire fighting to Chongqing Dianjiang Composite Insulation Material Factory to set up Kunming Kobayashi Hotel was invalid, which reflected this spirit.
Author: Zhang, President of the Second People's Court of Shenyang Intermediate People's Court.