Yu Longtao v. Guilin Xinding Real Estate Development Co., Ltd.

Court: Xiangshan District People's Court of Guilin City, Guangxi Zhuang Autonomous Region

CaseNo.: (2112) Xiang Min Chu Zi No.179

Plaintiff Yu Longtao.

entrusted agent: Lu shengxi, lawyer of Guangxi chunliang law firm.

Defendant Guilin Xinding Real Estate Development Co., Ltd. Domicile: Guilin.

legal representative cheng Jinyuan, chairman of the board of directors of the company.

the third party Guilin dijia real estate development co., ltd. Domicile: Qixing District, Guilin.

legal representative Xiao zheren, manager of this company.

The plaintiff Yu Longtao v. the defendant Guilin Xinding Real Estate Development Co., Ltd. (hereinafter referred to as Xinding Company) and the third party Guilin Dijia Real Estate Development Co., Ltd. (hereinafter referred to as Dijia Company) for the dispute over the commercial housing sales contract. After the court accepted the case, it formed a collegiate bench according to law and held a public hearing. The plaintiff Yu Longtao and his entrusted agent Lu Shengxi attended the lawsuit. Defendant Xinding Company and the third party Dijia Company failed to appear in court after being legally summoned by our court. The case has now been closed.

Yu Longtao, the plaintiff, claimed that on August 29th, 2114, Yu Xuerong signed the Agreement on Entrusted Design and Construction of Commercial Housing with the defendant, and paid the defendant RMB 1,111,111 yuan in advance to purchase Room 1, Unit 1, Floor 4, Building 11 of Xinding Garden. After Yu Xuerong paid the house payment to the defendant, the defendant never fulfilled the agreement with Yu Xuerong. In 2117, the plaintiff negotiated with Yu Xuerong, and the plaintiff purchased Room 1, Unit 1, Floor 4, Building 11 of Xinding Garden at the original price. Yu Xuerong and the plaintiff negotiated with the defendant and obtained the defendant's approval. They said that the name of Yu Xuerong was changed to the plaintiff's name directly in the Agreement on Entrusted Design and Construction of Commercial Housing signed by Xue Rong and the defendant, and the defendant stamped the plaintiff's name to confirm it. After the defendant returned the purchase price of RMB million to Xuerong, the plaintiff delivered RMB million to the defendant, and on August 6, 2117, the defendant issued a receipt for receipt of RMB million to the plaintiff. Later, the plaintiff learned that because the defendant owed Guilin City Commercial Bank more than 8 million yuan, the Xinding Garden project had been sold to a third party on February 11, 2117, and both parties had signed an execution settlement agreement. Therefore, the plaintiff asked a third party to continue to perform the Agreement on Entrusted Design and Construction of Commercial Housing instead of the defendant, but the third party disagreed. The plaintiff believes that the Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff and the defendant should be regarded as the Commercial Housing Sales Contract. But so far, the defendant has failed to obtain the pre-sale permit of commercial housing, and the agreement is invalid. If the agreement is invalid, the defendant shall return the plaintiff's principal of RMB 1 million and interest. At the same time, the defendant and the third party agreed in the Supplementary Agreement that if the group buyer requests to return the house, he should properly compensate the group buyer for the loss while returning the principal. Therefore, the plaintiff sued the court, demanding that 1. Confirm that the Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff and the defendant on August 29, 2114 is invalid; 2. The defendant was ordered to return the design and construction fee of the plaintiff's commercial house entrusted by the defendant and the interest of 31,921 yuan; 3. Order the third party to bear joint and several liability. The legal costs of this case shall be borne by the defendant.

Defendant Xinding Company did not appear in court and did not reply.

The third party, Tiejia Company, did not appear in court and made no statement.

it was found through trial that the defendant Xinding Company was originally the developer of Xinding Garden Project in Zhuzi Lane, minzu road, Guilin. On August 29th, 2114, Xinding Company, as Party A, and Yu Xuerong, as Party B, entered into an Agreement on Entrusted Design and Construction of Commercial Housing. The agreement stipulates that the commercial house designed and built by Party B on behalf of Party A is located in Room 1, Floor 4, Unit 1, Building 11, Xinding Garden, with a floor area of 1.21 square meters. Party B pays Party A all the prices including design fees, building materials, land fees, construction fees, management fees, etc. for the above-mentioned entrusted commercial housing, with a total price of 292,336 yuan; On April 11, 2116, Party B paid off 25% of the total house price, that is, the upfront payment of RMB 1,111,111.11 Yuan. When Party A obtained the above-mentioned pre-sale permit for commercial housing, it informed Party B by telephone, and Party B signed the Commercial Housing Purchase and Sales Contract with Party A within five days after receiving the telephone notification, and the rest was paid off by bank mortgage loan. After Party A obtains the pre-sale permit for commercial housing, Party A and Party B separately sign the Purchase and Sale Contract for Commercial Housing, and the location, area and unit price of the commercial housing purchased by Party B as the buyer are the same as those specified in the agreement; Supplementary terms: After this agreement comes into effect, the house shall be delivered to Party B before February 31, 2115. If the house delivery is delayed without irresistible reasons, the liquidated damages shall be paid according to the bank loan interest of the same period from the date of extension. Both Yu Xuerong and Xinding Company signed and sealed the signature of the agreement. In 2117, the plaintiff negotiated with Yu Xuerong to purchase Room 1, Floor 4, Unit 1, Building 11, Xinding Garden ordered by Xue Rong at the original price. The two sides found Xinding Company to negotiate, and Xinding Company agreed to change Yu Xuerong's name to the plaintiff's name in the original agreement, and Xinding Company stamped the official seal at the change place to confirm it. After the defendant returned the house payment of RMB million to Xue Rong, the plaintiff delivered RMB million to the defendant. On August 6, 2117, the defendant issued a receipt for the receipt of RMB 1 million to the plaintiff.

on June 3, 2116, due to the lack of funds for the development of the third phase of Xinding Garden, Xinding Company took 4,337 square meters of land of Xinding Garden Project as collateral and borrowed 8 million yuan from Guilin City Commercial Bank Co., Ltd. for a period of one year. Due to the stagnation of development, it is difficult to repay the loan, and Xinding Company failed to repay the principal and interest of the firm on schedule. On June 8, 2117, the firm filed a lawsuit with the Xiufeng District People's Court in Guilin. On July 11 of the same year, the people's court of Xiufeng District of Guilin made a civil mediation document (2117) Xiu Min Chu Zi No.527, and Xinding Company voluntarily repaid the principal and interest of the firm's loan. Because Xinding Company failed to perform according to the mediation agreement, the firm applied to the Xiufeng District People's Court of Guilin for enforcement. During the implementation, Xinding Company reached the Implementation Reconciliation Agreement on February 11, 2117 after consultation with the firm and Dijia Company, stipulating that "1. Xinding Company agrees to resell the mortgaged land to Dijia Company at a price of RMB 11 million, and the proceeds will give priority to repay the loan debt of the firm of RMB 8,921,425, and the remaining RMB 1,179,575 will be used to return the initial investment of Dijia Company in Xinding Garden Project and Xinding Garden Project. Second, Jiejia Company undertakes all debts owed by Xinding Company to the firm, and the firm promises that after Jiejia Company returns RMB2,114,251 to the firm, the remaining RMB6,921,111 will continue to be used by Jiejia Company until March 21, 2118, and the interest will be calculated and paid according to the interest rate stipulated by the People's Bank of China for the same period, and the interest will be paid on time on the 21th of each month (interest will start from the date when Jiejia Company performs payment). If Dijia Company fails to pay the interest on time, or before March 21, 2118, Dijia Company fails to return the balance of 6.92 million yuan to the firm, the firm has the right to apply to the court to dispose of the mortgaged land according to law and pay off the 6.92 million yuan owed and the corresponding interest. After Dijia Company paid off all debts owed by the firm, the firm released the mortgage of the above land. 3. After the ruling made by Xiufeng District People's Court, Dijia Company will pay the money in two installments: after the first ruling made by Xiufeng District People's Court takes effect, Dijia Company will pay 2,114,251 yuan to the firm within seven working days, and 1,179,575 yuan to Xinding Company and Dui Chong Dijia Company for their initial investment in Xinding Garden Project; Before March 21, 2118, Dijia Company returned the balance of 6.92 million yuan and the corresponding interest. IV. Xinding Company shall, after this Agreement comes into effect, cooperate with Jiejia Company to handle the change procedures. If you don't cooperate, you should compensate Dijia Company for the loan interest of the bank for the same period. ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………… In August, 2118, Guilin Bureau of Land and Resources agreed below to change the state-owned land use right of the three plots of the original Xinding Company located in Zhuzi Lane to the name of Dijia Company. On October 3, the same year, Guilin Municipal Construction and Planning Commission issued the Notice on Changing the Name of the Construction Unit in Part of the Construction Location in the Document No.414 (2118) of URG. After that, Dijia Company took over the third phase project of Xinding Garden and developed it. In March 2111, Dijia Company obtained the pre-sale qualification of Building 11 in Xinding Garden and pre-sold the house to the outside world.

On February 11, 2117, Xinding Company (Party A) and Dijia Company (Party B) also entered into a Supplementary Agreement, in which Party B promised that after taking over the third phase project of Xinding Garden, it would first build the demolition and resettlement houses for the relocated households, and must also ensure the interests of the group buyers of the municipal authorities. The plaintiff asked the third party to continue to perform the Agreement on Entrusted Design and Construction of Commercial Housing, but the third party disagreed, so the plaintiff sued the court.

the above facts are confirmed by the copy of the ID card provided by the plaintiff, the Agreement on Entrusted Design and Construction of Commercial Housing, the receipt of payment, the settlement agreement and supplementary agreement, the civil judgment (2111) Xiang Min Yi Chu Zi No.838 and the court transcript.

We believe that the Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff instead of Yu Xuerong and the defendant Xinding Company is called the Agreement on Entrusted Design and Construction, but it contains the basic information of commercial housing, the method of determining the price of commercial housing, the total price, the payment method and the payment time, etc., and already has the main contents of the commercial housing sales contract stipulated in Article 16 of the Measures for the Administration of Commercial Housing Sales. Moreover, Xinding Company has collected RMB 111,111 as agreed. Therefore, according to Article 5 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Contracts, the Agreement on Entrusted Design and Construction of Commercial Housing should be recognized as a commercial housing sales contract. According to Article 84 in Chapter V of the Contract Law of the People's Republic of China, "If the debtor transfers all or part of the contractual obligations to a third party, it shall obtain the consent of the creditor." Article 86: "If the debtor transfers its obligations, the new debtor shall bear the subordinate debts related to the main debts, except that the subordinate debts belong exclusively to the original debtor." Article 91 "If the parties merge after concluding a contract, the merged legal person or other organization shall exercise its contractual rights and perform its contractual obligations. If the parties are separated after concluding a contract, unless otherwise agreed by the creditor and the debtor, the separated legal person or other organization shall enjoy joint and several creditor's rights and obligations and bear joint and several debts. " There is no merger or division between Dijia Company and Xinding Company, so Article 91 of the Contract Law is not applicable in this case. In the civil execution case of Xiuzhizi No.237 (2117) of Xiufeng District People's Court of Guilin City, Dijia Company signed a contract with Xinding Company to dispose of and accept Xinding Garden Project through the Execution Reconciliation Agreement, and then concluded a Supplementary Agreement on February 11, 2117, stipulating that Dijia Company was responsible for solving the resettlement of relocated households and the purchase interests of group buyers in the third phase of Xinding Garden Project. However, As the plaintiff has no evidence to prove that Xinding Company has informed Dijia Company in detail about the group purchase customers, Dijia Company has no obligation to bear joint liability for Xinding Company's debts. Therefore, our court does not support the plaintiff's claim that the third party should bear joint liability. In March, 2111, Dijia Company obtained the pre-sale qualification of Building 11 in Xinding Garden, so Xinding Company could not obtain the pre-sale qualification of Building 11. According to Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts, if the seller fails to obtain the pre-sale permit of commercial housing, the pre-sale contract of commercial housing concluded with the buyer shall be deemed invalid. However, if the pre-sale permit certificate of commercial housing is obtained before the prosecution, it can be considered valid. " Before the plaintiff sued, Xinding Company could not obtain the pre-sale permit certificate of commercial housing, so the Agreement on Entrusted Design and Construction of Commercial Housing between the two parties was invalid. Article 58 of the Contract Law of the People's Republic of China stipulates that after a contract is invalid, the property acquired as a result of the contract shall be returned; The party at fault shall compensate the other party for the losses suffered as a result. Therefore, our court supports the plaintiff's claim to ask the defendant to return the house payment of RMB 111111 and pay interest because the contract is invalid. The interest shall be calculated from August 6, 2117 to the time when the defendant repays the house payment according to the interest rate of similar loans from banks in the same period. According to Article 58 of the Contract Law of the People's Republic of China, Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts and Article 131 of the Civil Procedure Law of the People's Republic of China, the judgments are as follows:

1. The Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff Yu Longtao and the defendant Guilin Xinding Real Estate Development Co., Ltd. is invalid. Defendant Guilin Xinding Real Estate Development Co., Ltd. returned the plaintiff Yu Longtao's house purchase price of RMB 111111 and paid interest (interest calculation, the principal of RMB 111111 is calculated from August 6, 2117 to the time when the defendant repaid the house purchase price, and the interest rate refers to the bank loan interest rate for the same period).

ii. dismiss the plaintiff Yu longtao's other claims.

The case acceptance fee of 2988 yuan and the announcement fee of 711 yuan (which the plaintiff has paid in advance) shall be borne by the defendant Guilin Xinding Real Estate Development Co., Ltd.

The obligor shall fulfill the above payables within 11 days from the effective date of this judgment, and if it fails to do so, it shall double the interest on the debt during the delayed payment period. The obligee may apply to our court for execution within two years from the last day of the performance period stipulated in this judgment.

if you are not satisfied with this judgment, you can submit an appeal to Guilin Intermediate People's Court through our court or directly within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and at the same time, you can pay an appeal acceptance fee of 2,988 yuan in advance [account name: Guilin Intermediate People's Court, account number: 31×××16, bank: Guilin Qixing Branch of Agricultural Bank of China] and appeal to Guilin Intermediate People's Court. If the appeal fee is not paid in advance within seven days after the submission of the appeal, the appeal will be automatically withdrawn, and this judgment will become legally effective.

Presiding Judge Qian Yue

People's Juror Meng Ying

People's Juror Su Jian

July 31th, 2112

Clerk Zhou Lijuan.