Referee points:
Although the Agreement on Paying Debt with House has been signed, the property involved has not been registered, so the transfer of the property involved by both parties has not produced the effect of property right change, and the assignee has not legally possessed the property involved before the people's court sealed it up, which cannot exclude the court's execution.
The Supreme People's Court, People's Republic of China (PRC)
Civil adjudication
(20 18) the Supreme People's Court application number 1382.
Applicants for retrial (plaintiff of first instance and appellant of second instance): Dai Hongdu (formerly known as Dai Hongdu).
Authorized Agent: Wang Na, lawyer of Liaoning Mingbo Law Firm.
Authorized Agent: Zhang Song, lawyer of Liaoning Mingbo Law Firm.
Defendant (defendant of first instance and appellee of second instance): Xie Jun.
Authorized Agent: Liu Peng, lawyer of Liaoning Daxing Law Firm.
Defendant of first instance: Dandong Kuantai Real Estate Development Co., Ltd., domicile: Kuandian Manchu Autonomous County, Dandong City, Liaoning Province.
Legal Representative: Liu Zhenguo, general manager of this company.
Authorized Agent: Guan Zhong, lawyer of Beijing Yingke (Shenyang) Law Firm.
Authorized Agent: Li Yulong, lawyer of Beijing Yingke (Shenyang) Law Firm.
Dai Hongdu, the retrial applicant, refused to accept the civil judgment of Liaoning Higher People's Court (20 17) LiaominzhongziNo. 10 1. 1250 applied to our court for retrial due to execution objection dispute with respondent Xie Jun and defendant Dandong Kuantai Real Estate Development Co., Ltd. (hereinafter referred to as Kuantai Company). Our college formed a collegial panel according to law to conduct the examination, and the examination has now ended.
Dai Hongdu applied for retrial in accordance with the second paragraph of Article 200 of the Civil Procedure Law of People's Republic of China (PRC).
Main facts and reasons: (1) the Supreme People's Court (20 17) the Supreme People's Court civil ruling No.3721clearly stated that "Kuantai Company and Dai Hong reached an agreement on debt mortgage before the court sealed it up on June 27th, 20 15, that is, the contract was established before the court sealed it up. The "House-to-House Debt Agreement" is the true meaning of both parties. Its content does not violate the mandatory provisions of laws and administrative regulations and should be legal and effective. "
The judgment of the second instance of this case found that the effective date of the Agreement on Paying Debt with House was 20 15, 10, which obviously conflicted with the ruling and found the facts wrong. Before signing a written debt settlement agreement with House, both Dai Hongdu and Kuantai Company had reached the agreed content of the contract and actually performed it. Failure to sign a written agreement does not mean that both parties have not reached an agreement on the true meaning of the contract. And the time to reach an agreement is 201March 5, 2005 15, which has been confirmed by the effective judgment document. The Agreement on Paying Debts with Houses signed by Dai Hongdu and Kuantai Company should be established and come into effect on March 5, 2065438, and Dai Hongdu has legal civil rights and interests in the houses involved.
(2) The judgment of the second instance found that the situation in this case was different from that in another case, which was inconsistent with the facts. The situation of Yang Moumou is the same as that of Dai Hong, and the execution ruling of (20 16) Liao 06 Zhi Yi No.8 made by the court of first instance is the same as that of Yang Moumou, both of which are suspended. However, the court of first instance withdrew Dai Hongdu's ruling without legal procedures and made a completely different result, which obviously violated the unity and fairness of judicial judgment.
(3) The judgment of the second instance found that Dai Hongdu had legally occupied the property before the court sealed it up, which did not conform to the objective reality. According to the provisions of Article 15 of the Property Law of People's Republic of China (PRC), although the property rights of the houses involved cannot be registered, the ownership cannot be transferred temporarily, which does not mean that the houses cannot be transferred and delivered. According to the first paragraph of Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts, the mortgaged houses involved were delivered to Dai Hongdu for disposal after an agreement was reached between Dai Hongdu and Kuantai Company, and the actual control and income of Dai Hongdu should be regarded as the actual delivery of the mortgaged houses. After Dai Hongdu and Kuantai Company signed the commercial housing subscription book on April 15, 2065438, the self-employed people not only took care of the mortgaged house, but also confirmed and preserved the mortgaged house to the people's court through litigation to show their rights and possession of the house. It is only because of illegal acts that the people's court failed to take timely measures, but this fact fully proves Dai Hongdu's intention of possession and publicity, and also proves that Kuantai Company will repay the house. Dai Hong complies with the provisions of Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the People's Courts Handling Cases of Objection Reconsideration, and has sufficient civil rights and interests to exclude execution. When the seizure is lifted, Dai Hongdu's legal property will not be executed.
Xie Jun submitted an opinion that Dai Hongdu and Kuantai Company formed the Agreement on Paying Debts with Houses, and the effective time of this agreement was 20 15 10, which was later than the time when the people's court sealed up the houses involved. The house involved is currently under construction. Due to the incomplete development procedures, the commercial housing sales license has not been obtained so far. Dai Hongdu said that there is no factual basis for the delivery and partial sale of the houses involved, and it also violates the law. Before the people's court sealed up the house involved, he did not completely legally occupy the house. After the court of first instance delivered the ruling of execution objection made by outsiders Yang Moumou and Dai Hong to Xie Jun, Xie Jun raised an objection on the grounds that the two rulings violated legal procedures. Therefore, the court of first instance withdrew the ruling and held a hearing, made a ruling of execution objection in this case, and rejected Dai Hongdu's execution objection. Yang's case has not yet entered legal proceedings, so there are no two outcomes based on the same fact. Dai Hong does not enjoy enough civil rights to exclude execution, and his application for retrial shall be rejected.
Guantai Company agrees with Xie Jun.
Upon examination, our court holds that this case is an execution objection raised by Dai Hongdu who claims that the real estate involved in Xie Jun's application for execution enjoys civil rights sufficient to exclude execution. Article 28 of the Supreme People's Court's Provisions on Several Issues Concerning People's Courts Handling Cases of Reconsideration of Objection to Execution stipulates: "If the buyer raises an objection to the real estate registered in the name of the person subjected to execution, the people's court shall support it if it meets the following circumstances and its rights can be excluded from execution:
(a) the people's court has signed a legal and effective written sales contract before the seizure;
(2) It has legally occupied the real estate before the people's court seals it up;
(3) Pay all or part of the price as agreed in the contract, and deliver the remaining price to the people's court for execution as required;
(4) The transfer registration is not handled due to the buyer's own reasons. "
According to the facts ascertained in the original trial, Dai Hongdu and Kuantai Company did not go through the transfer registration procedures for the property involved after signing the Agreement on Paying Debt with House, so the transfer of the property involved by both parties does not have the effect of property right change. On June 27th, 20 15, the court of first instance made a civil ruling of (20 15) Dan Zhizi. 00025- 1, and seized some buildings under construction of Kuantai Company, including the property involved. Dai Hongdu claimed that he had legally possessed the property involved before it was seized by the people's court. However, the real estate involved was under construction at that time, and he did not obtain the commercial housing sales license, nor did he complete the acceptance. Dai Hong did not provide sufficient evidence to prove that he actually possessed the property involved in the original trial. Accordingly, if the original trial found that Dai Hong did not meet the above-mentioned legal provisions, it could exclude the people's court from executing the act, and there was nothing improper in finding the facts and applying the law. During Dai Hongdu's application for retrial, he provided 1 copy of the Housing Distribution Agreement, 1 copy of the Power of Attorney of Kuantai New Town for House Trusteeship for Debts, and 1 copy of commercial housing subscription book written by Sun Moumou and Song Moumou as new evidence, which proved that several creditors of Dai Hongdu and Kuantai Company had seized the property involved before the people's court. Kuantai Company believes that there are objections to the authenticity, legality and relevance of the above evidence, which does not belong to new evidence, nor can it prove that Dai Hongdu and others actually possessed the property involved. Upon examination, our hospital believes that the signing time of the Housing Distribution Agreement and the Trust Letter of Kuantai New Town for Debted Housing is 20 15 April 20, and the time of commercial housing subscription book by Sun Moumou and Song Moumou is 20 15 years, so the above evidence already existed in the original trial, not new evidence, and Dai Hong did not show it in the original trial. Although it is stated in the evidence that Sun Moumou, Song Moumou and others signed the commercial housing subscription book with Kuantai Company, Dai Hongdu, Sun Moumou and other creditors with creditor's rights to Kuantai Company entrusted four creditors, including 10 1 suite and garage, to keep the above-mentioned property, but Dai Hong did not show evidence to prove the agreement and power of attorney. Therefore, the above evidence presented by Dai Hongdu is not enough to prove that he advocated legal possession before the court seized the property involved. With regard to the confirmation of the establishment and effective time of the house-to-house debt repayment agreement, the civil judgment of Liaominzhong No.334 (20 16) made on February 22, 20 17 was established and took effect on March 15. The case was. However, this case is a lawsuit of execution objection filed by Dai Hongdu, who claims that the property involved in Xie Jun's application for execution has enough civil rights to exclude execution. Before the people's court sealed it up, Dai Hongdu did not legally occupy the property involved. Even before the people's court sealed it up, it had signed a legal and effective sales contract with Kuantai Company, but it did not meet the provisions of the second paragraph of Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning People's Courts Handling Cases of Objection and Reconsideration, and it still did not enjoy the civil rights and interests sufficient to exclude the compulsory execution of the property involved.
Therefore, there are flaws in the determination of the establishment and effective time of the agreement on paying debts with houses involved in the judgment of the second instance, which does not affect the judgment result of this case and does not belong to the situation that should be retried according to law.
To sum up, Dai Hongdu's application for retrial does not conform to the provisions of the second paragraph 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), the Supreme People's Court on the application of
Reject Dai Hongdu's retrial application.
Chief Referee Hua Dong
Judge Luo Dian.
Judge Zhang Daien
201April 27, 8
Assistant judge Hou Wang
Bookkeeper Kotete