Model essay on housing dispute defense 1
Respondent: Liu Sai, female, born in July 19XX, Han nationality, unemployed, living atNo. 1-2, Fuguiyuan, Donghua City, Dongcheng District, Beijing, with telephone number 13-66.
Because of the case that Li Mou, Li Moumou and Ning Moumou v. my house sales contract dispute, we hereby reply as follows:
1. The judgment of the first instance found that there was malicious collusion between the defendant in the original trial and the defendant Ning Moumou, and the facts were found to be accurate and in line with the rules of admissibility of evidence.
1. The first-instance judgment found that the facts were correct and conformed to the rules of admissibility of evidence and the criteria for judging facts.
? Malicious collusion? It means that what is hidden in the mind of the doer is an internal subjective state, and others cannot directly know what a person is thinking subjectively.
Judge whether the respondent and Ning Xiange exist? Malicious collusion? It can only be inferred from external objective facts.
Then, in judicial practice, what about the judgment? Malicious collusion? Standards are usually determined by inferring unknown facts from known facts.
The Supreme People's Court's No.20 10 and No.2010 (General No.0/68) What are the main points of adjudication in the dispute case of Chen Quan and Pi Zhiyong v. Chongqing Bibo Real Estate Development Co., Ltd., Xia Changjun and Chongqing Aokang Real Estate Co., Ltd.? Point out in? For the determination of malicious collusion mentioned in the preceding paragraph, we should analyze whether the parties to the contract have subjective malice, and comprehensively analyze the specific circumstances when concluding the contract, the content of the contract and the performance of the contract, and make a comprehensive judgment on this basis. ?
So malicious collusion? Generally, it can't be confirmed by direct evidence, but on the basis of relevant facts? Analysis? Judge and draw a conclusion.
The civil ruling in this case was also obtained through a comprehensive analysis of the objective facts such as the contents of the contract and the performance process of the contract. Malicious collusion? Conclusion.
The judicial interpretation of the Supreme Law also has relevant provisions.
Article 9 of the Supreme Law "Provisions on Evidence in Civil Proceedings" stipulates that the parties need not prove the following facts: (3) Other facts that can be inferred according to the provisions of the law or the rules of known facts and daily life experience? .
In this case, regarding the same house, the Respondent has successively signed two house sales contracts with the Respondent and Ning Moumou; In the house sales contract with Ning Moumou, there is no specific agreement on the payment method and term of house payment and house transfer registration involving the major rights and interests of both parties;
For the purchase and sale of houses involving major interests, the buyer Ning Moumou does not check the condition of the house; The evidence provided by the respondent and Ning Moumou cannot prove the fact of actual payment; The payment method stated by the Respondent and Ning Moumou violates common sense; Ning argued that he knew the house was rented, but he didn't charge rent for his house.
According to these known facts and evidence rules, the first-instance judgment found that the respondent and Ning Moumou existed? Malicious collusion? , in line with the rules of admissibility of evidence and fact finding.
2. The relevant facts ascertained by the court of first instance are supported by sufficient evidence or conform to the rules for ascertaining facts.
2. 1. The fact that the respondent has successively signed two housing sales contracts.
The evidence provided by the Respondent and the Respondent proves that the Respondent has successively signed two house sales contracts for the same house, first selling the house to the Respondent, and then delivering it to the Respondent for decoration.
It is an indisputable fact that this fact was also recognized by the defendant in the first instance.
2.2. Regarding Ning Moumou's failure to go to the site to check the real estate sales involving major interests.
When the Respondent signed the second house sales contract with Ning Moumou, the Respondent had delivered the house to the Respondent for renovation, and the house was managed and dominated by the Respondent.
As a party to this case, Ning Moumou said that he had inspected the house and had tenants at the time of inspection, but he did not provide other valid evidence to confirm it except his own statement.
And the following two contrary evidences prove that Ning's statement is inconsistent with the facts: First, the house has been delivered to the respondent for decoration, but the facts are not rented; Secondly, the economic transaction contract signed by the respondent and Ning Moumou on 20 10, 165438124/0 clearly states:? Isn't the house mortgaged or rented? .
2.3. The contract price of the economic transaction version signed by the respondent and Ning Moumou is obviously lower than the market price.
What is stipulated in the economic transaction version contract signed by the respondent and Ning Moumou? The transaction price of the house is 654.38 yuan +0.258 million yuan? The deed tax invoice also confirmed the transaction price, which was significantly lower than the market price.
3. The respondent's refusal to identify the formation time of 1 1 receipt is a negative evidence-giving act, and the judgment of the first instance is unfavorable to the respondent, which is in line with the law.
As all the 1 1 receipts provided by the respondent came from the same piece of paper, there is reasonable reason to suspect that the respondent and Ning Moumou acted in malicious collusion.
At the first trial, the identification procedure of the consistency of the formation time of 1 1 receipt was started, but the respondent refused to carry out the identification, although the first-instance judge provided an appropriate scheme to exclude the improper reasons put forward by the respondent.
Article 75 of the Supreme Law "Provisions on Several Issues Concerning Evidence in Civil Proceedings" stipulates: There is evidence that one party refuses to provide evidence without justifiable reasons. If the other party claims that the content of the evidence is not conducive to the evidence holder, it can be presumed that the claim is established. ? The determination of the respondent made by the court of first instance according to law conforms to the provisions of the Supreme Law on the admissibility of evidence, and also conforms to the principle of evidence law with inverted burden of proof.
4. The witness testimony of the respondent has an interest relationship with the respondent and Ning Moumou, and is an orphan of contradiction, which cannot be used as the basis for ascertaining the facts according to law.
5. Evidence in civil proceedings is the rule of preponderant evidence. Compared with the evidence supporting the defendant's point of view, the evidence supporting the first-instance judgment in this case obviously has an advantage. From this perspective, the first-instance judgment is also correct.
Second, in the process of signing and performing the house sales contract with Ning Moumou, a series of facts that are contrary to daily life experience can completely draw the conclusion that the respondent made a farce with Ning Moumou in order to tear up the house sales contract with the respondent.
In addition to the above-mentioned housing sales contract between the respondent and Ning Moumou, the price is obviously too low, the buyer does not go to the scene to see the house, and the payment process is unreasonable, there are also the following facts, which obviously violate the daily life experience.
1. The contents of the Self-Trading Contract signed by the Respondent and Ning Moumou are unreasonable.
What are the main rights and obligations of this contract? Payment method and time limit, ownership transfer and registration, etc. This is the most important clause involving buyers and sellers, and no agreement has been reached yet.
Second, Ning's payment method is contrary to common sense.
Although the respondent submitted the self-transaction version of the contract signed by the respondent and Ning Moumou on September 16, 20XX, the payment process and other materials submitted by the respondent obviously violated common sense.
1 1 The house payment is 3.85 million yuan, each with hundreds of thousands, which not only takes a long time to count the banknotes, but also faces the risk of being unsafe to carry and unable to distinguish the counterfeit banknotes.
Today, with the safer and more convenient means of payment, cash delivery is contrary to daily life experience.
Moreover, the huge cash of 3.85 million yuan, Ning Moumou did not provide withdrawal from the bank or other common sense acquisition methods.
Although the respondent argued in the first instance that six of them were bank transfers and promised to submit evidence after the trial, the respondent did not submit it, so a judgment against the respondent should be made according to law.
Third, Ning Moumou, as the owner of the house, argues that it is unthinkable to rent the house without charging rent.
According to the market rental price, Ning's real estate license has at least100000 yuan rent.
But the so-called housing rights holder Ning Moumou turned a blind eye.
Fourth, according to the agent's investigation, Ning's family conditions and economic strength can't afford the house payment of the property involved.
The payment of more than 4 million yuan is inconsistent with the facts.
From a series of behaviors that the respondent and Ning Moumou can't justify themselves and obviously violate the common sense of daily life, we can draw a conclusion that the so-called house sales contract signed by the respondent and Ning Moumou is a farce written and directed by ourselves in order to tear up the house sales contract signed with the respondent when the house price continues to rise sharply.
According to these known facts and the Supreme Court's Provisions on Several Issues of Evidence in Civil Proceedings, the first-instance judgment reached a conclusion on the respondent and Ning Moumou. Malicious collusion? Judgment is linked with reason, integrated with law and consistent with objective facts.
Typical thesis defense II
Respondent: Long Moumou, male, born on ××××, Han nationality, living in South Street, XX Town, Dazhu County, Sichuan Province.
Authorized Agent: Lawyer Mars, practicing lawyer of Sichuan Liming Law Firm.
Respondent: Wang Moumou, female, born on XX, XX, Han nationality, farming, living in Hongyan Village, Mouxiang, Dazhu County, Sichuan Province, with ID number of 51302919771221xxxx.
Respondent: Huang Moumou, male, born on XX, XX, Han nationality, farming, living in Renmin Village, XX Township, Dazhu County, Sichuan Province, with ID number of 513029195091xxxx.
The agent made the following reply to the case of Wang Moumou (hereinafter referred to as plaintiff) v. Long Moumou (hereinafter referred to as defendant) in Dazhu County People's Court on April 20th, 201/.
Request a reply
The defendant's claim of prosecution is contrary to the facts and does not conform to the law, and he requests to dismiss his claim according to law.
Facts and reasons
1. According to the provisions of Item 1 of Article 4 and Article 6 of the house sales contract concluded by the original defendant, it is fully and obviously reflected that Huang Lunqun and Huang Cai violated the provisions of Article 6 of the People's Republic of China (PRC) Contract Law, and the parties concerned should follow the principle of good faith in exercising their rights and performing their obligations.
The principle of good faith requires the parties to be honest and trustworthy and cooperate with each other in the whole process of concluding and performing the contract and after the termination of the contract.
In real life, we ordinary people won't forgive a man who broke his word and broke his promise, which shows that the two plaintiffs took advantage of the defendant's situation at the beginning of the contract and were suspected of taking advantage of others' danger.
Second, the first claim of the two plaintiffs in the indictment? Legally confirm that the house sales contract signed by the original defendant in March 20 1 1 is invalid? There are no laws, administrative regulations, local regulations and normative documents.
It is also impossible to find a legal basis for adjusting civil legal relations in civil law.
According to Article 55 of the General Principles of the Civil Law and Article 44 of the Contract Law of People's Republic of China (PRC) (1), a legally established contract shall take effect upon its establishment.
Combined with the actual situation of this case, Huang Lunqun was very aware of the actual situation of the subject matter and strongly demanded to buy it, indicating that the behavior of the buyer and the seller was a true expression of will.
There is no major misunderstanding, coercion, taking advantage of others' danger, etc.
This is exactly the agreement signed by two plaintiffs and my client.
No matter from the signing process or the content of the contract, it does not violate any provisions of Item (1) to Item (5) of Article 52 of People's Republic of China (PRC) Contract Law, nor does it violate the provisions of Item (1) of Article 53 of People's Republic of China (PRC) Contract Law.
Please ask the court to reject all the claims of the two plaintiffs according to law.
3. What did the two plaintiffs say in the facts and reasons of the complaint? The statement that the original defendant initially reached a house purchase agreement and paid a deposit of 2,000 yuan is not true, and it is suspected of fabricating facts for extortion.
If the two plaintiffs do have sufficient evidence to prove that they paid a deposit of 2000 yuan to the defendant, please give evidence in court. After cross-examination by Long himself or his agent, the court will not accept the letter.
In this contract, the plaintiff and the defendant did not agree to pay a deposit of 2000 yuan by the payment method agreed in the contract.
This shows from another side that the two plaintiffs want to obtain unjust enrichment through this method and should not be protected by law.
Of course, what is the second proposition of the two plaintiffs in the indictment? According to the law, the four defendants were ordered to return the purchase price and deposit of 32,000 yuan? There is no factual basis, of course, the litigation costs in this case are borne by the two plaintiffs.
Once again, please ask the court to reject all the claims of the two plaintiffs according to law.
2. What did the plaintiff advocate in the facts and reasons part of the complaint? After the contract was signed, it was not true that the plaintiff Huang Lunqun paid the house purchase price of 30,000 yuan as agreed in the contract, and it was even more untrue that the defendant Long wrote the receipt himself. I would like to ask whether Wang paid 30,000 yuan for the house purchase according to the contract after signing the contract. Is it based on the principle of seeking truth from facts or feeling his conscience? Telling lies or perjury is to bear corresponding legal responsibilities.
According to my client? I called Long many times and asked to postpone the payment date.
Before the agreed May 1 final payment date comes, Longmou is required to make compensation on the grounds that the contract is invalid.
Negotiation failed.
Talk about pay.
5. What did the two plaintiffs say in the facts and reasons of the complaint? Later, the plaintiff learned from many sources that the house sales contract between the original defendant was invalid and was not protected by law.
This is really an excuse. Learn more? I wonder who the two plaintiffs are asking. However, according to a legal service office in Dazhu County provided by the defendant Long in this case, the house sales contract was witnessed, and the conclusion was:? The contract it entered into is true, legal and effective. ? And stamped with the official seal, is this legal service office fake?
6. Although the houses purchased by the two plaintiffs have not obtained the house title certificate, it shows that the ownership has not been transferred, not that the creditor's rights are invalid or invalid, but that the contract is a creditor's right. Please separate the creditor's rights from the real rights to avoid confusion.