A few years ago, the sale of cemeteries quietly became a common practice, and some buyers, as investments, did not hesitate to spend a lot of money to buy them in order to gain huge appreciation. After a few years, the result was either that the cemetery space was not delivered, or that it could not be transferred and there was no reward. It is prepared to claim back the money it has paid, but it is considered to be bound by the contract and unable to realize its rights.
In fact, the cemetery sale contract is invalid!
Article 52 of the Contract Law of People's Republic of China (PRC) stipulates: "A contract is invalid under any of the following circumstances: (5) It violates the mandatory provisions of laws and administrative regulations". The General Office of the State Council forwarded the notice of the Ministry of Civil Affairs on further strengthening cemetery management: "Second, we should further strengthen cemetery management and strictly control cemetery development. (five) it is strictly prohibited to engage in pyramid schemes and speculation in graves and ashes storage spaces. It is necessary to reasonably determine the price of graves and ashes storage spaces, and clearly mark the price; It is necessary to provide or sell graves and ashes storage spaces with cremation certificates (cremation areas) or death certificates (burial reform areas) issued by users, use standardized burial and lease certificates, establish strict sales and registration systems, and strictly prohibit pyramid schemes and speculation; We must protect the legitimate rights and interests of the masses. " The "Emergency Notice on Further Strengthening the Management of Cemetery" of the Ministry of Civil Affairs once again emphasizes that "the ashes storage facilities are not ordinary commodities, and the purchase and use procedures are handled by the cremation certificate and death certificate issued by the user. The cemetery may not be pre-sold, pyramid schemes and speculation, and buyers may not transfer or buy or sell privately. " Therefore, according to the law, a contract that violates the mandatory provisions of laws and administrative regulations is invalid.
Article 58 of the Contract Law stipulates: "After a contract is invalid or cancelled, the property acquired as a result of 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 shall bear their respective responsibilities. Therefore, the purpose sales contract is invalid because it violates the regulations, and its consequences are not protected by law. Both parties shall return the property and compensate the losses according to the degree of fault. The buyer can sue to the court to confirm that the contract is invalid, and the cemetery unit will refund the money and compensate for the losses.
Some scholars and practitioners believe that the validity of a contract is a strict responsibility, and only acts that "violate the mandatory provisions of laws and administrative regulations" are invalid. Article 7 of the Legislative Law of People's Republic of China (PRC) stipulates: "The National People's Congress and the NPC Standing Committee exercise the legislative power of the state. The National People's Congress formulates and amends criminal, civil, state and other basic laws. Article 56: "the State Council formulates administrative regulations in accordance with the Constitution and laws. Administrative regulations may stipulate the following matters: (1) Matters that need to be formulated in order to implement the provisions of the law; (2) Matters concerning the State Council's administrative functions and powers as stipulated in Article 89 of the Constitution, and Article 61: "Administrative regulations shall be promulgated by the Prime Minister by signing the the State Council Order", that is, the laws enacted by the National People's Congress and its Standing Committee, and the administrative regulations enacted by the State Council according to needs and promulgated by signing the the State Council Order by the Prime Minister. Based on the provisions of the Legislative Law, it is not an administrative regulation for the General Office of the State Council to forward the opinions of the Ministry of Civil Affairs, not to mention the urgent notice of the Ministry of Civil Affairs on further strengthening the management of cemeteries. Therefore, it is impossible to confirm that the contract is invalid according to non-administrative regulations, and the cemetery sales contract is a valid contract, which the author cannot do.
Article 225 of the Criminal Law of People's Republic of China (PRC) stipulates: "Whoever violates state regulations and commits one of the following illegal business operations, disrupting the market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, fined not less than one time but not more than five times the illegal income or confiscated property, which constitutes the crime of illegal business operation. The prerequisite is that he violated the state regulations, but what is "state regulations"? Article 96 of the Criminal Law of People's Republic of China (PRC): "Violation of state regulations as mentioned in this Law refers to violation of laws and decisions formulated by the National People's Congress and its Standing Committee, and administrative regulations, administrative measures, decisions and orders promulgated by the State Council", that is, only decisions and orders formulated and promulgated by the State Council belong to state regulations. In this case, the opinions forwarded by the General Office of the State Council to the Ministry of Civil Affairs were never formulated and published by the State Council. Even if the circumstances are serious, it does not conform to the criminal constitution of the crime of illegal business operation in the criminal law, because it does not violate state regulations, that is, laws and administrative regulations.
As the defender of the defendant Sun Mou, the author participated in the defense of the case of suspected illegal business operation of Paradise Villa in the Ming Tombs in Beijing. During the operation of the Paradise Villa of the Ming Tombs in Beijing, Sun Mou sold the ashes repository. The Changping District People's Court held that the defendant illegally bought and sold the ashes storage place, which violated state regulations and used high returns or future appreciation as bait to disrupt market order, and the circumstances were serious. Their actions have constituted the crime of illegal operation and should be punished according to law. The final judgment of Beijing No.1 Intermediate People's Court found that the defendant violated state regulations and sold ashes in the name of Paradise Villa of the Ming Tombs in Beijing, disrupting market order and making illegal profits. Therefore, the courts of first and second instance all found that the opinions forwarded by the General Office of the State Council to the Ministry of Civil Affairs were national regulations and administrative regulations. Therefore, as a civil case, it should also be considered as an administrative regulation, and its civil behavior is invalid.
Similarly, in February 2004, Fangshan District People's Court accepted the first case of illegally operating the ashes storage space in Beijing, and Jing 'an Cemetery in Fangshan, Beijing was charged with pyramid selling and illegally operating the ashes storage space in disguised form. Fangshan Jing 'an Cemetery * * * pre-sold more than 0.7 million ashes/kloc-0, and the illegal income was more than 80 million yuan. On June 5438+05, 2004, Fangshan Court sentenced Beijing Fangshan Jing 'an Cemetery to a fine of RMB 60 million for illegal business operation. The legal representative and general manager of the unit were sentenced to six years' imprisonment and fined RMB100000 yuan for the crime of illegal business operation, and other responsible personnel were also punished accordingly.
Source:
Lawyer Tian Jun, practicing institution: Beijing Jintai Law Firm.