Case of action: People’s Court of Xiangshan District, Guilin City, Guangxi Zhuang Autonomous Region
Case number: (2012) Xiang Minchu No. 179. No. 179
Plaintiff: Yu Longtao.
The entrusted agent is Lu Shengxi, a lawyer at Guangxi Chunliang Law Firm.
The defendant is Guilin Xinding Real Estate Development Co., Ltd. Residence: Guilin City.
Legal representative Cheng Jinyuan, chairman of the company.
The third party is Guilin Jiejia Real Estate Development Co., Ltd. Residence: Qixing District, Guilin City: Qixing District, Guilin City.
Legal representative Xiao Zheren, manager of the company.
Plaintiff Yu Longtao sued defendant Guilin Xinding Real Estate Development Co., Ltd. (hereinafter referred to as Xinding Company) and the third party Guilin Jiejia Real Estate Development Co., Ltd. (hereinafter referred to as Jiejia Company), a dispute over a commercial housing sales contract , after this court accepted the case, it formed a collegial panel in accordance with the law and held a public hearing. The plaintiff Yu Longtao and his authorized agent Lu Shengxi attended the court to participate in the lawsuit. The defendant Xinding Company and the third party summoned by this court in accordance with the law banned a company from appearing in court to participate in the lawsuit. The case has now been concluded.
Plaintiff Yu Longtao claimed that on August 29, 2004, Yu Xuerong signed the "Commercial Housing Entrustment Design and Construction Agreement" with the defendant, paid 100,000 yuan in advance to the defendant, and purchased Building 10, Xinding Garden 1 Unit 1 room on the 4th floor. After Yu Xuerong paid the defendant, the defendant never fulfilled the agreement to Yu Xuerong. In 2007, the plaintiff negotiated with Yu Xuerong, and the plaintiff purchased Room 1 on the 4th floor of Unit 1, Building 10, Xinding Garden, at the original price. The plaintiff approached the defendant Yu Xuerong for negotiation and obtained the defendant's approval. He stated that he would directly write the plaintiff's name in Yu Xuerong's name on the "Commercial Housing Entrustment Design and Construction Agreement" signed by Yu Xuerong and the defendant, and the defendant stamped it under the plaintiff's name. Official seal to confirm. Later, the defendant returned Yu Xuelong's 100,000 yuan purchase price, and the plaintiff delivered 100,000 yuan to the defendant. On August 16, 2007, the defendant issued a receipt of 100,000 yuan to the plaintiff. Later, the plaintiff learned that because the defendant owed more than 8 million yuan to Guilin Commercial Bank, the Xinding Garden project had been sold to a third party on December 10, 2007, and the two parties had signed an "Execution and Settlement Agreement." For this reason, the plaintiff requested a third party to continue to perform the "Commercial Housing Entrusted Design and Construction Agreement" on behalf of the defendant, but the third party did not agree. The plaintiff believed that the "Commercial Housing Entrusted Design and Construction Agreement" signed by the plaintiff and the defendant should be recognized as the "Commercial Housing Sales Contract." However, the defendant has not obtained a commercial housing pre-sale license so far, so the agreement is invalid. The agreement is invalid and the defendant should return the principal of 100,000 yuan and interest to the plaintiff. At the same time, the defendant and the third party agreed in the Supplementary Agreement that if the group purchaser requests to check out, the group purchaser's losses should be appropriately compensated while returning the principal. For this reason, the plaintiff filed a lawsuit in court, requesting: 1. To confirm that the "Commercial House Entrusted Design and Construction Agreement" signed by the plaintiff and the defendant on August 29, 2004 was invalid; 2. To order the defendant to return the commissioned design and construction of commercial houses that the defendant received from the plaintiff. 100,000 yuan in fees and 31,920 yuan in interest; 3. The third party was ordered to bear joint liability for compensation. The legal costs shall be borne by the defendant.
The defendant Xinding Company did not appear in court to respond to the lawsuit and did not make a defense.
The third person did not appear in court and did not make a statement.
After trial, it was found that the defendant Xinding Company was originally the developer of the Zhuzi Xinding Garden project on Minzu Avenue in Guilin City. On August 29, 2004, Xinding Company, as Party A, and Yu Xuerong, as Party B, signed an Agreement on Design and Construction of Commercial Housing.
The agreement stipulates that the commercial house that Party B entrusts Party A to design and construct is located in Room 1, 4th Floor, Unit 1, Building 10, Xinding Garden, with three bedrooms and two living rooms, and a construction area of ??121 square meters; Party B pays Party A for the entrusted construction of the commercial house, including the commissioned design. The total price including construction fee, building material fee, land fee, construction fee and management fee is 2416/square meter. The total price is 292336 yuan. Party B pays 25% of the total price, which is 100,000 yuan. On April 10, 2006, Party A will notify Party B by phone when obtaining the above-mentioned commercial housing pre-sale license. Party B will sign a "Commercial Housing Sales Contract" with Party A within five days after receiving the phone notification. The remaining amount will be paid by bank mortgage; Party A obtains the commercial housing pre-sale license. Afterwards, Party A and Party B separately sign a "Commercial Housing Sales Contract", which shall be signed and confirmed by Party A and Party B. After Party A obtains the commercial housing pre-sale license, Party A and Party B separately sign a "Commercial Housing Sales Contract", and Party B, as the buyer, purchases commercial housing with the same location, area, and unit price as determined in this agreement; Supplementary terms: After the agreement takes effect, Party B If the house is delivered before December 31, 2005, if the house delivery is delayed without force majeure, liquidated damages will be paid based on the bank's loan interest rate for the same period from the date of postponement. Both Yu Xuelong and Xinding Company signed and sealed the agreement at the end. In 2007, the plaintiff negotiated with Yu Xuelong, and the plaintiff purchased Room 1 on the 4th floor, Unit 1, Building 10, Xinding Garden ordered by Yu Xuelong at the original price. The two parties approached Xinding Company for negotiation, and Xinding Company agreed to change Yu Xuelong's name on the original agreement to the plaintiff's name, and Xinding Company stamped its official seal on the change to confirm it. Later, the defendant returned 100,000 yuan to the plaintiff, and the plaintiff delivered 100,000 yuan to the defendant. On August 16, 2007, the defendant issued a receipt of 100,000 yuan to the plaintiff.
On June 13, 2006, Xinding Company lacked funds for the development of the third phase of the Xinding Garden project, so it used 4,337 square meters of land in the Xinding Garden project as collateral for a loan of RMB 800 from Guilin Commercial Bank Co., Ltd. Ten thousand yuan, loan term is one year. Due to the stagnation of development, resulting in repayment difficulties, Xinding Company failed to repay the principal and interest to commercial banks on schedule. On June 18, 2007, the commercial bank filed a lawsuit with the People's Court of Xiufeng District, Guilin City. On July 10 of the same year, the Xiufeng District People's Court of Guilin City issued a civil mediation document (2007) Xiu Min Chu Zi No. 527, in which Xinding Company voluntarily repaid the principal and interest of the commercial bank loan. Because Xinding Company failed to perform the mediation agreement, the bank applied to the Guilin Xiufeng District People's Court for enforcement. During the execution process, Xinding Company negotiated with the bank and Jiejia Company and reached an "Execution Settlement Agreement" on December 10, 2007. The agreement stipulated: "1. Xinding Company agreed to transfer the mortgaged land to a price of 10 million yuan. The proceeds from the sale to Jiejia Company will be used to repay bank loan debts of RMB 8,924,250 in priority, and the remaining RMB 1,079,575 will be used to return the company's initial investment in the Xinding Garden project and the aftermath of the Xinding Garden project. 2. Dijia Company shall be responsible. For all the debts that Xinding Company owes to the commercial bank, the commercial bank promises that after Dijia Company returns RMB 2,000,000 to the commercial bank, the commercial bank will continue to have the priority to receive repayment without releasing the mortgage of the original mortgaged land. 6.92 million yuan will continue to be used by Dijia Company until March 20, 2008. During this period, the interest will be calculated according to the interest rate for the same period specified by the People's Bank of China. The interest will be paid according to the interest rate for the same period specified by the People's Bank of China on the 20th of each year, starting from the 20th of each month. If Dingjia Company fails to pay interest on time, or Dingjia Company fails to return the balance of 6.92 million yuan to the bank before March 20, 2008, the bank has the right to apply to the court to handle the mortgaged land in accordance with the law and repay the 6.92 million yuan and corresponding interest. After Dijia Company repaid all the arrears to the bank, the bank released the mortgage on the above-mentioned land. 3. After Dijia Company issued a ruling from the Xiufeng District People's Court, it paid the amount in two installments: at the Xiufeng District People's Court. Within seven working days after the first ruling came into effect, Dijia Company paid 2,000,425 yuan to the commercial bank and 1,079,575 yuan to Xinding Company and redeemed Dijia Company’s initial investment in the Xinding Garden project; before March 20, 2008 , Dijia Company shall return the balance of 6.92 million yuan to the commercial bank and pay the corresponding interest. After this agreement takes effect, Xinding Company shall cooperate with Dijia Company to handle the change procedures within the time limit, and shall compensate the bank for the loan interest for the same period based on the amount paid. .
On December 17 of the same year, the People's Court of Xiufeng District, Guilin City issued (2007) Xiuzhizi No. 237 Civil Ruling, confirming the above-mentioned "Execution and Settlement Agreement" and ruling to terminate the execution procedures of this case. In August 2008, the Guilin Municipal Bureau of Land and Resources issued a document agreeing to transfer the land in Zhuzhi Lane that had been transferred to Xinding Company to Xinding Company. The Guilin Municipal Land and Resources Bureau agreed to change the state-owned land use rights of three pieces of land in Zhuzi Lane that had been transferred to the company to the name of Dijia Company. On November 13 of the same year, the Guilin Municipal Construction and Planning Commission issued Municipal Construction Guiguanzi (2008) No. 404, "Notice on the Change of the Name of the Construction Unit at Some Construction Sites in Municipal Construction Guiguanzi (2000) No. 200." In March 2010, Jiejia Company obtained the pre-sale qualification for Building 10 of Xinding Garden and pre-sold the house to the outside world.
On December 10, 2007, Xinding Company (Party A) and Jiejia Company (Party B) signed a "Supplementary Agreement", stipulating that Party B guaranteed that after taking over the third phase of the Xinding Garden project, it would first provide When resettlement housing is built for the demolished households, the interests of households purchasing houses under the municipal government agency group must be guaranteed at the same time. The plaintiff requested the third party to continue to perform the "Commercial Housing Entrustment Design and Construction Agreement", but the third party did not agree, so the plaintiff brought a lawsuit to this court.
The above facts include a copy of the plaintiff’s ID card, “Commercial Housing Design and Construction Agreement”, receipt, execution settlement agreement and supplementary agreement, (2010) Xiangmin Yichuzi No. 838 Civil Judgment and court trial transcripts Waiting for confirmation.
This court believes that although the "Commercial Housing Entrusted Design and Construction Agreement" signed by the plaintiff on behalf of Yu Xueyong and the defendant Xinding Company is called an entrusted design and construction agreement, the content includes the basic situation of the commercial housing and the price of the commercial housing. The determination and total price, payment method, payment time, etc. already have the contents of the commercial housing sales contract stipulated in Article 16 of the "Commercial Housing Sales Management Measures". The main content is that Xinding Company has collected the 100,000 yuan purchase price as agreed. Therefore, according to the provisions of Article 5 of the Supreme People's Court's "Interpretation of Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes", "Commercial Housing Entrusted Design, "Construction Agreement" should be recognized as a commercial housing sales contract. According to Article 84 of Chapter 5 of the "Contract Law of the People's Republic of China" on Contract Changes and Transfers, "If the debtor transfers all or part of its contractual obligations to a third party, it must obtain the consent of the creditor." ", Article 86 "If a debtor transfers a debt, the new debtor shall bear the subordinate debts related to the principal debt, except that the subordinate debts belong exclusively to the original debtor himself. Article 90 "If the parties merge after entering into a contract, the merged legal person or other organization shall exercise the contractual rights and perform the contractual obligations. If the parties separate after entering into the contract, the separated legal person or other organization shall have joint and several claims for the contractual rights and obligations and shall bear the contractual rights and obligations." Joint and several debts, unless otherwise agreed between the creditor and the debtor. "There is no merger or division between Jiejia Company and Xinding Company, so the provisions of Article 90 of the Contract Law do not apply to this case. In the Civil Enforcement Case No. 237 of Xiufeng District People’s Court of Guilin City (2007), there is no merger or division relationship between Jiejia Company and Xinding Company, so the provisions of Article 90 of the Contract Law do not apply to this case. . In the civil enforcement case No. 237, Jiejia Company signed the "Xinding Garden Project Disposal and Acceptance Contract" with Xinding Company through the "Execution Settlement Agreement" during the execution process of the Xiufeng District People's Court, and then signed the "Xinding Garden Project Disposal and Acceptance Contract" on December 10, 2007. The "Supplementary Agreement" stipulates that Jiejia Company will be responsible for the resettlement of the demolished households in the third phase of the Xinding Garden project and the purchase of houses by group purchasers. The "Supplementary Agreement" was signed on December 10, 2007, stipulating that Jiejia Company will be responsible for settling the interests of the demolished households of the Xinding Garden Phase III project and the house purchase interests of the group purchasers. However, according to the principle of privity of contract, only Xinding Company and Jiejia Company know the contents of the Supplementary Agreement, and only Xinding Company and Jiejia Company know the performance of the Supplementary Agreement. Since the plaintiff has no evidence to prove that Xinding Company informed Jiejia Company in detail about the group purchasers, Xinding Company has no obligation to assume joint and several liability for the debts of Jiejia Company. Therefore, the court did not support the plaintiff’s request for the third party to bear joint liability. In March 2010, Dijia Company had obtained the pre-sale qualification for Building 10# of Xinding Garden. So far, Xinding Company could no longer obtain the pre-sale qualification for Building 10#.
According to Article 2 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts, "If the seller does not obtain the commercial housing pre-sale license and enters into a commercial housing pre-sale contract with the buyer, it shall be deemed invalid. But the sale If a person obtains a commercial housing pre-sale license certificate before filing a lawsuit, the contract may be deemed valid." According to the regulations, before the plaintiff filed the lawsuit, Xinding Company was unable to obtain a commercial housing pre-sale license, and the "Commercial Housing Entrusted Design and Construction Agreement" signed by both parties was therefore invalid. Article 58 of the Contract Law of the People's Republic of China stipulates that after the contract is invalidated, the property obtained as a result of the contract shall be returned; the party at fault shall compensate the other party for the losses suffered thereby. Therefore, the court should support the plaintiff’s request for the defendant to return 100,000 yuan and pay interest on the grounds that the contract was invalid. Interest will be calculated based on the bank loan interest rate for the same period from August 16, 2007 until the defendant returns the house. In accordance with Article 58 of the Contract Law of the People's Republic of China, Article 2 of the Supreme People's Court's Interpretation of Legal Issues Concerning the Trial of Disputes over Commercial Housing Sales Contracts, and the Civil Procedure Law of the People's Republic of China 》Article 130, the judgment is as follows
1. The "Commercial Housing Entrusted Design and Construction Agreement" and the "Commercial Housing Construction and Construction Agreement" signed by the plaintiff Yu Longtao and the defendant Guilin Xinding Real Estate Development Co., Ltd. Agreement". "Commercial Housing Entrusted Design and Construction Agreement" is invalid. The defendant Guilin Xinding Real Estate Development Co., Ltd. returned to the plaintiff Yu Longtao the purchase price of RMB 100,000 and paid interest (the interest calculation method is, the principal of RMB 100,000 is from August 16, 2007 to the date when the purchase price is paid off, and the interest rate refers to Bank loan interest rate calculation for the same period).
2. Dismiss plaintiff Yu Longtao’s other claims.