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ZHEJIANG BONIG LAW FIRM
A case of settling disputes between a real estate company in Ningbo
Ⅰ. Case basic Information
Case Type：Cases of lawyers ' lawsuits
Time of court decision：2017年4月6日
Name of court：Ningbo Beilun District People's Court
Name of defence counsel：Hu Zhiming
Name of law Firm：Zhejiang boning Law Firm
Provide by(real name, Unit + names)：Ningbo Bar Association Civil and Commercial
Committee Hu Zhiming
Peer review (real name, progressive)：
Retrieving keywords：Private lending Barter Agreement Liquid contract
Ⅱ.Case Body Collection
A case of settling disputes between a real estate company in Ningbo
November 22, 2012, Ningbo, a real estate company executive director, General Manager, the actual controller Chen to a gold and caregiver plaintiff Wu a loan of RMB 6.2 million yuan. After Chen returned a loan of 1.2 million yuan, the remaining 5 million yuan (of which 2 million yuan for all of Wu) has not been returned. As from October 22, 2014, Chen was the legal representative of a real estate company. Because Chen is unable to return the loan, it is proposed that a real estate company developed in Ningbo Beilun District new Qi Street, No. 755 Feng Yang Road, clear water green garden housing and parking space compensation loans, gold to the program to be recognized.
September 11, 2014 Chen MoU instructs a real estate company's sales manager Yu Ying and Gold signed "The commercial housing sale contract" three (respectively: The contract number is: YS0052781, the House code is: 1977839; The contract number is: YS0052786, the House code is: 1978075; The contract number is: YS0052789, the House code is: 1977964, will be located in Ningbo Beilun District New Qi Street, the Phoenix Road No. 755, clear Water Green Park 8 1001 Room, 9 building 903 room, 10 building 1104 Room housing satisfaction to the gold, and agreed that the above housing should be delivered to Kim before December 30, 2015. The same year September 15, a real estate company to the above commercial housing sales contract online registration record. The legal representative of a real estate company Chen Ningbo The fact that the above-mentioned housing debt is settled in the public security organs, the people's Court of Beilun District (2015) The first word of Yong Lun No. 487 civil case trial has also been made clear. However, a real estate company failed to deliver the housing to the king at the time stipulated in the contract.
January 26, 2016, a lawsuit to the court, asked a real estate company in accordance with three "commercial housing sales contract" agreed to deliver the house and pay the default payment.
In the course of the lawsuit, the total price of three copies of the contract of commercial housing and the difference between the 3 million yuan and the outstanding gold (127734 yuan), "commercial housing contract" agreed under the liquidated damages, gold to give up, the remaining loan principal and interest into the "commercial housing sales contract" purchase money, after investigation, Where interest does not exceed the limit of the borrowing rate.
The court decision supports the full appeal of the king.
The agent believes that the case is a dispute over the issue of debt, in practice, widespread. The main controversy in this case is as follows: (1) whether the loan interest of Chen and Kim is in accordance with the legal provisions; (2) whether the act of debt bondage is prohibited by the existing law, (3) Whether Chen has the right to use a real estate company for sale of commercial housing to compensate for their own debt to the gold, (4) whether or not to the market price of commercial housing compensation to the gold.
A. The loan between Chen and Kim is lawful and effective, and interest is protected by law.
The fact that a loan of Chen to gold exists, the interest agreement is protected by law. Payment of the IOU, remittance vouchers and Beilun District People's Court in (2015) Yong-LUN sentence of the first word of the No. 756 judgement of the fact that the facts proved: November 22, 2012 Chen to a loan of RMB 6.2 million yuan, the same day, Kim MoU to Chen a designated account remittance 5 million yuan ( The other 1.2 million dollars were remitted in the same month and 11th. Since then, the two sides also borrowed, repayment, the amount of money, the loan is used for Chen a real control or investment start-up company day-to-day operation. As a result of a borrowed money is actually a gold and Wu (Caregiver lawsuit) Common all, after the expiration of Chen MoU and Wu MoU in September 2014 to settle, confirm still owe 6 million yuan (interest according to each loan principal × monthly 2.5% calculation). After the settlement, Chen to a gold and Wu returned 1 million yuan, the remaining 5 million yuan (of which 3 million yuan for all of the gold, another 2 million yuan for all of Wu. ) with a real estate company's commercial housing satisfaction.
Whether it is the evidence provided by the king, or the fact that the court caregiver the effective judgment instrument, Chen Jin Mou's loan principal and interest is protected by law.
B. It is not prohibited by the existing law to deal with the act of debt-bonded behavior, which differs from the current law.
(a) The barter agreement is different from the liquid contract
The contract of retention of material debt and the existing law forbids, in its establishment time node, there is a qualitative difference: The Barter Agreement is formed after the liquidation period of the debt, the liquid contract is formed before the liquidation period of "barter Agreement".
(b) The agreement between Kim MoU and Chen MoU is not prohibited by law
1. Legally valid contract or meaning between the civil subject
September 2014 Chen MoU with Jin MoU and Wu MoU, the November 2012 loan and principal and interest of the settlement, and clearly will be the remaining 5 million yuan in the 3 million yuan with a real estate company's commercial housing compensation to gold, and in the same year September 11, according to Chen MoU, a property company Sales manager Yu Ying and Gold signed a three " Contract for sale of commercial housing. This is a free, true agreement between the civil subjects of equality, the first, is the termination of the original loan contract, the second, the establishment of the contract relationship of commercial housing, and the loan principal and interest into the purchase money. The act does not belong to the "People's Republic of China property Law," 186th of the provisions of the prohibition, the purpose of the contract for the sale of commercial housing is not part of the Supreme Court on the trial of civil lending cases applicable law of several issues stipulated in article 24th, "as a private loan contract guarantee ". In the absence of the 52nd article of the PRC contract law, the contract of sale of the commercial housing has the force of law.
2. On the basis of the Barter Agreement, the contract is required to fulfill the contract of sale of commercial housing, which is not a flow or liquid agreement.
The provisions of the security Law on the flow or liquid provisions are mainly to prevent the security rights of the people and harm other creditors legitimate interests of dishonest behavior. Chen MoU has the right to choose various ways and opportunities to perform the contractual obligations before repaying the loan, but fails to fulfill the contract obligation, as the creditor's gold request fulfills the "commercial housing sale contract", although "the commercial housing sale contract" has the certain safeguard function to the Chen certain debt performance, However, it is not possible to conclude that the agreement between the two parties belongs to the flow or liquid clause stipulated in the guarantee law.
C. Chen has the right to use a real estate company's commercial housing to compensate for their debts to the creditor gold.
For the development of commercial housing in the case of real estate, in April 2012, by Chen a real control of the open area of a property company and the cases of outsiders Hu MoU, a control of the development Zone a hotel company to set up a property company, and he was a legal representative. Due to the dispute between the shareholders on the project of real estate sales, January 17, 2014 Development Zone, a hotel company will be held by a certain property company's total equity discount of 65 million yuan all transferred to Chen, and signed an agreement. Since February 2014, the real estate sales business by Chen a management, control, the case of a foreigner, he withdrew from a property company's operation, management. October 22, 2014, the legal representative of a property company changed to Chen. Based on this, Chen has the right to the sale of a real estate company in the commercial housing to compensate for their debts to the creditor gold.
D. Chen will be involved in commercial housing to the market sales price compensation to gold, in line with the rules of fair trade.
September 11, 2014 a real estate company and Gold signed three "commercial housing sales contract", that is, gold to a real estate company to buy 8 1001 rooms, 10 1104 rooms and 9 houses 903, the unit price is 8559.5 yuan/square meters, 8493 yuan/square meters and 8198.5 yuan/square meters. The two sides also agreed to other matters, after a real estate company to the three "commercial housing sales contract" in the Ningbo Residential and property network for the record registration, and September 2014 a property company external sales of house prices and gold an approximate floor housing average price of 8500 yuan/square meters. Specific purchase of gold to the creditor's rights directly against, the housing involved in the value of the property is basically the market price approximation, there is no discount or low price, in line with the Fair trade rules.
The court decision supported the full appeal of Jin.
As a legitimate creditor of the private loan relationship, Kim has the right to settle the debts due to the debts of the loan due to the repayment of the debt with the debtor. January 17, 2014 Development Zone a hotel company will be in a real estate company held a stake in the transfer to Chen MoU, the company's shares have been fully owned by Chen and its actual control of the open area issued a property company all, and since February 2014, the case of the property sales business also by Chen a management, control. In this context, Chen MoU with gold an agreement will be a real estate company three sold in the sale of commercial housing to the market price satisfaction to gold, a real estate company and in Ningbo residential and property network in the "commercial housing sales contract" of the record registration, Kim has reason to believe that Chen's behavior on behalf of a real estate company, Therefore, the legal consequences arising therefrom should be borne by a real estate company.
In summary, gold and a real estate company signed the "commercial housing sale and purchase contract" is lawful and effective, the parties should comply with the agreed obligations, for a certain real estate company to continue to perform the contract of the lawsuit please support.
The barter agreement has something in common with the liquid contract, but we should pay more attention to and analyze the difference between the two in agency discrimination and judicial trial.：
First, whether there is a guarantee contract. The liquid contract is the clause in the Guaranty contract, and the property-bonded agreement does not have the guarantee nature, and it is the change of the obligation. A substance in a liquid contract is a mortgage or a pledge; a substitute in a barter agreement is the fulfillment of a debt.
Second, the relationship between the value of the object and the amount of the creditor. The key to distinguish between the two is whether the contract excludes the discount and liquidation procedure of the property when the creditor's rights are realized. Article 35th of the Security Act stipulates that "the creditor's rights secured by the mortgagee shall not exceed the value of its collateral", and that the value of the collateral must be greater than or equal to the value of the creditor's rights, even if the value of the mortgaged property is higher than the amount of the claim. The value of the object in the agreement is equal to the amount of the creditor's rights, which can be used as reference in the market price, or the party may express the true meaning when the agreement is signed.
Third, the purpose of the contract. In the traditional civil law, the creditor signed a liquid contract is to use the advantage position to obtain the benefit greater than the creditor's rights, and the agreement of the barter is the agreeable between the equal civil subject, which is based on the free and real meaning expression.
(Excerpt from: Kun "A barter agreement is not suitable to be identified as a liquid contract", "People's Justice · case" 2014, Phase 2nd)
【Conclusion and suggestion】
The case covers private lending, real estate transactions, and the structure of the two between the contract effect, real right change and other disputes, but also on the traditional concept of liquid contract in the trading freedom and market background of the analysis, that is, in the market economy and trading rules gradually orderly, normative environment, the application of the law should be with the times.
With the object of debt is to respect the party's sense of autonomy as the basic principle, that is, the contract, the parties to the meaning of the agreement can be set up into effect, do not take the property of the debt to the establishment of the material changes. The prohibition of the liquid rule can not be used as the basis of denying the effect of the debt, the interest imbalance of the debt can be adjusted by the explicit unfair rules, the Civil enforcement field of the mandatory object of debt determination can lead to changes in real rights, but the confirmation of the matter of debt can not cause real rights changes ("People's Justice · cases", phase 17th 2017)
With the development of market economy and the change of the concept of transaction and financing by civil subject, in the judicial practice, the courts often appear different understandings and applications of the legal provisions, which often touch on the interest game and the implementation of the spirit of private law, so that there are different judgment results. In the process of judicial practice, we hope to gradually unify the understanding.
At the same time, it is suggested that the civil subject should seek professional lawyer and check in advance in order to meet the need of the transaction, so that the lowest transaction cost and the least transaction risk should be found. It is suggested that the referee should judge the liquid contract by the principle of the unification of subjective and objective in judicial practice In order to unify the judicial judgment and the spirit of legislation, the agreement on the payment of debt after the expiration of the liquidation period and the expiration of the liquidation period.