Release date: 20 15-05-20
The Supreme People's Court, People's Republic of China (PRC)
the people
Decision book
(20 15) Shen min zi No.33
Applicant for retrial (defendant in the first instance and appellant in the second instance): Huainan Golden Century Real Estate Co., Ltd.
Legal Representative: Wang Xiaoqing, manager of this company.
Authorized Agent: Wang Shengyang, lawyer of Anhui Wanda Law Firm.
Respondent (defendant of first instance and appellee of second instance): Zheng.
Huainan Golden Century Real Estate Co., Ltd. (hereinafter referred to as Golden Century Company), the retrial applicant, refused to accept the civil judgment of Anhui Higher People's Court (20 14) No.00085, and applied to our hospital for retrial. Our hospital formed a collegial panel to review the case according to law, and the review has ended.
Golden Century Company applied for retrial, saying: (1) There is enough new evidence to overturn the original judgment. The judgment of the second instance found that: "After review, the land unit indicated in the Notice of Construction Land Planning is Huainan Land Reserve Center, and the name of the land use project is Land Reserve (Golden Century Garden), which cannot prove that Golden Century Company has obtained the construction land planning permit". This determination is wrong. After the judgment of the second instance, Golden Century Company consulted and copied all the case files of Huainan Intermediate People's Court (20 10) No.00665, the proof materials on page 64 of the case files, Notice of Huainan City's Proposed Approval of Construction Land (No.02 (2005)) and the Construction Land Planning Permit, plus Golden Century Company's first (second). The project transfer agreement and supplementary agreement in this case were reached by both parties after a long period of repeated consultation and consideration. The upfront cost of project transfer is 36 million yuan, which is calculated by both parties through consultation. When signing the agreement, both parties knew that there was no land use certificate for the project. Therefore, the content of the agreement is fair to both parties, is the true expression of both parties, and is legal and effective. This contract was reached by both parties voluntarily, and both parties shall abide by it in good faith. First, the court of second instance found the contract invalid and denied the basic facts of the case. (3) The application of law in the original judgment was indeed wrong. 1. The project in this case is in the early stage of real estate development and has not yet reached the stage of real estate development. Therefore, the judgment of the second instance is based on the Law of People's Republic of China (PRC) on Urban Real Estate Management (hereinafter referred to as the Law on Urban Real Estate Management), the Regulations on Urban Real Estate Development and Management, and the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Disputes over State-owned Land Use Rights Contracts (hereinafter referred to as the Interpretation of State-owned Land Use Rights Contracts). First, the second-instance judgment wrongly identified the nature of the agreement involved, which led to the wrong application of the law. According to Article 2 of the Urban Real Estate Management Law, this law only applies to the legal relations arising from the development, transaction and operation after obtaining the land use right, and does not apply to the first-level land development stage with the government as the main body. The transfer fee paid by Zheng is the fee paid by Golden Century Company for the early stage of the project, which has nothing to do with the land; Golden Century Company was entrusted by the government to engage in the work before land purchasing and storage, that is, the first-level development of land, so the original judgment wrongly determined the nature of the agreement involved. Accordingly, it is obviously wrong to apply the Urban Real Estate Management Law and the State-owned Land Use Right Contract Interpretation. To sum up, Golden Century Company applied for retrial in accordance with the provisions of Item 1, Item 2 and Item 6 of Article 200 of the Civil Procedure Law of People's Republic of China (PRC).
We believe that, first of all, according to the project transfer agreement and supplementary agreement, Golden Century Company transferred the "Golden Century Garden Community" project approved for development. The agreement clearly stipulates the location and area of land involved in the project, the area and proportion of houses built by the project, the area and proportion of houses purchased by Golden Century Company, and stipulates that "after the transfer of the project, Party B (that is, Zheng) will set up a project development company independently. The contents of the agreement include the location of the land, the rights and obligations of all parties in the project development and construction, and the distribution after the development is completed. The agreement on the real estate project involved is clear and specific, and the intention of Golden Century Company to transfer the project is true. Therefore, the nature of the project transfer agreement and supplementary agreement involved in this case should be the real estate project transfer contract. Golden Century Company said that the agreement involved only involves the preparatory stage of real estate development, which is a one-sided interpretation of the agreement involved, so it is considered that the judgments of the first and second trials are one-sided interpretations of the case.
Secondly, the premise and foundation of real estate development is to obtain the corresponding land use right, which is inseparable from the transfer of real estate projects. Therefore, although the transfer fee paid by Zheng does not include the transfer price of the land use right involved in the project, it is not improper for the judgments of the first instance and the second instance to comprehensively consider the acquisition of the land use right when determining the validity of the contract. Therefore, according to the relevant provisions of the Urban Real Estate Management Law and the Interpretation of State-owned Land Use Right Contract, the first-instance and second-instance judgments found that the agreement involved was invalid and did not violate the law.
Third, Article 58 of the People's Republic of China (PRC) Contract Law stipulates: "After a contract is invalid or cancelled, the property obtained from the contract shall be returned; If it is impossible or unnecessary to return it, it shall be compensated at a discount. The party at fault shall compensate the other party for the losses suffered as a result. If both parties are at fault, they should bear their respective responsibilities. " Accordingly, after confirming that the agreement involved is invalid, Golden Century Company should return 27 million yuan to Zheng.
In addition, Golden Century Company submitted "new evidence"-"General Procedures of Old City Reconstruction Project and Progress of Golden Century Project" by Huainan Land Reserve Development Company, aiming to prove that Golden Century Company has obtained the construction planning land permit and completed some projects. The court held that the evidence did not meet the requirements of "new evidence" stipulated by law in form. In other words, the construction planning land permit was issued in 2007, when the land had been collected and stored by the government. The land use unit indicated in the permit is Huainan Land Reserve Center, and the name of the land use project is Land Reserve (Golden Century Garden), which cannot prove that Golden Century Company has obtained the construction land planning permit, and the judgment of the second instance is correct. As for Golden Century Company's intention to prove that it has completed the preliminary work of the project, it has nothing to do with whether the agreement involved is valid or not.
To sum up, the retrial application of Golden Century Company does not conform to the provisions of Items 1, 2 and 6 of Article 200 of the Civil Procedure Law of People's Republic of China (PRC). In accordance with the provisions of the first paragraph of Article 204 of the Civil Procedure Law of People's Republic of China (PRC), our judgment is as follows:
Reject the retrial application of Huainan Golden Century Real Estate Co., Ltd..
Chief Justice Xin.
Acting Judge Si Wei
Acting Judge Shen Dandan
20126 February 5
David, the bookkeeper