The Supreme People's Procuratorate issued 6 cases involving real estate disputes
Typical cases of civil procuratorial supervision
Focus on "one house and two sales", overdue property rights certificates,
Adjustment of liquidated damages and other supervisory matters
Recently, the Supreme People's Procuratorate issued 6 typical cases of civil procuratorial supervision involving real estate disputes. According to reports, as one of the series of typical cases of the special action of "inspecting and protecting people's livelihood", this batch of typical cases focuses on high-incidence supervision matters such as "one house and two sales", overdue property rights certificates, and liquidated damages adjustment, and specifically expounds the procuratorial organs to actively perform their duties in accordance with the law, substantively resolve disputes, and continue to do the essence of procuratorial performance of "procuratorial protection of people's livelihood" that the people can feel, experience, and benefit.
These 6 cases are a series of cases of procuratorial settlement of commercial housing pre-sale contract disputes between 71 owners such as Zhang and a real estate development limited liability company in Anshun City, Guizhou Province, civil prosecution and settlement of disputes between Sun and a real estate development limited company in Hengshui to confirm the invalidity of the contract, and the prosecution and settlement of housing lease contract disputes between Zhang Mouzhong and Tang. Liu Mouyuan applied for non-enforcement of the arbitral award enforcement supervision series of cases, Huang Mouhai and other 27 people and a real estate company commercial housing sales contract dispute series of protest cases, Ningbo Building Decoration Co., Ltd. and Ningbo literary and artistic creation studio decoration contract dispute prosecution and settlement case.
The person in charge of the Sixth Procuratorate of the Supreme People's Procuratorate said that the real estate industry is related to the vital interests of the people and the overall situation of economic and social development. Actively perform their duties, respond to social concerns in a timely manner, actively perform their duties in accordance with the law, continuously improve the effectiveness of procuratorial reconciliation, substantively resolve cases involving real estate disputes, extend the performance of procuratorial duties on a case-by-case basis, promote the standardization and rule of law construction of the real estate market, and promote the stable and healthy development of the real estate market.
Regarding the printing and distribution of disputes involving real estate
Notice of typical cases of civil procuratorial supervision
The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government, the PLA military procuratorates, and the people's procuratorates of the Xinjiang Production and Construction Corps:
The real estate industry is related to the vital interests of the people and the overall situation of economic and social development. The Central Economic Work Conference held at the end of 2023 specifically emphasized that "do a good job in ensuring the delivery of buildings, ensuring people's livelihood and ensuring stability". At present, cases involving real estate disputes are prone to occur frequently, mainly involving "one house and two sales", overdue delivery, delay in handling property rights certificates, etc., showing the characteristics of grouping, contradictions and fierce confrontation. In order to thoroughly study and implement Xi Jinping Thought on the Rule of Law, give full play to the procuratorial function, help substantively resolve contradictions and disputes in the real estate field, deepen the effect of the special action of "prosecuting and protecting people's livelihood", and continue to make the procuratorate for the people feel and experience, and benefit from it, the Supreme People's Procuratorate organized and compiled 6 typical cases of civil procuratorial supervision of real estate disputes as a series of typical cases of the special action of "prosecuting and protecting people's livelihood". It is hereby issued to you for reference and reference in all localities.
Supreme People's Procuratorate
April 11, 2024
A series of cases of prosecution and settlement of commercial housing pre-sale contract disputes between Zhang and 71 other owners and a real estate development limited liability company in Anshun City, Guizhou Province
【Keywords】
Commercial housing pre-sale contract, liquidated damages for overdue certificates, inspection and reconciliation, inspection and protection of people's livelihood
[Basic facts of the case]
On June 30, 2015, Mr. Zhang signed a pre-sale contract for commercial housing with a real estate development limited liability company in Anshun City, Guizhou Province (hereinafter referred to as a real estate development company) to purchase the commercial housing developed by the company. The contract stipulates that the seller undertakes to obtain the initial registration of the ownership of the commercial house before December 31, 2015, and deliver the relevant documents for the registration of the transfer of the commercial house to the buyer. After the contract was signed, Zhang paid the purchase price of 336757 yuan according to the contract, and a real estate development company delivered the house on August 1, 2016, but the property rights registration has not been completed. On December 25, 2018, Zhang filed a lawsuit with the People's Court of Xixiu District, Anshun City, Guizhou Province, requesting that a real estate development company be ordered to deliver the relevant documents for the transfer registration of commercial housing, cooperate with it in handling the housing ownership certificate, and pay a total of 36,706.51 yuan for overdue certification at the standard of 1/10,000 per day based on the purchase price, and then continue to pay liquidated damages based on the purchase price of 1/10,000 per day until the date of completing the house ownership certificate.
On May 29, 2019, the Intermediate People's Court of Anshun City, Guizhou Province rendered a final judgment on the grounds that the house involved in the case had not yet applied for the filing procedures for the existing commercial housing and did not meet the conditions for applying for the real estate property certificate. As for the liquidated damages for overdue application, it was held that Zhang was negligent in discovering that the house involved in the case did not meet the conditions for applying for a real estate property right certificate when receiving the house, and gave up the right to refuse to accept the house, and was also at fault, so it was discretionary to order a real estate development company to pay 3,980 yuan in liquidated damages for overdue application from January 1, 2016 to January 7, 2019. Zhang's other litigation claims were rejected.
Unsatisfied, Zhang applied to the Guizhou Provincial High People's Court for a retrial, which ordered the Anshun Intermediate People's Court to retry the case. The Anshun Intermediate People's Court held in the retrial that Zhang could not provide evidence to prove the losses caused by the overdue application of the certificate, combined with the subjective and objective fault of the real estate development company's breach of contract, the actual performance of the contract and other factors, and comprehensively integrated the economic development of the jurisdiction, In the light of the price and income level, a certain housing development company was ordered to pay a total of 5,500.93 yuan for the period from January 1, 2016 to December 25, 2018 for the period from January 1, 2016 to December 25, 2018, and the liquidated damages for the overdue application of the certificate from December 26, 2018 to the date on which the real estate ownership certificate of the house involved in the case was handed over by a real estate development company, and the liquidated damages for the overdue application were calculated and paid at 0.15/10,000 per day based on the purchase price paid by Zhang, and Zhang's other litigation claims were rejected.
During the same period, another 70 owners also filed a lawsuit against a real estate development company, requesting an order to apply for a real estate certificate and pay liquidated damages for overdue certificates, and the Anshun Intermediate People's Court made a similar judgment after retrial.
[Performance of duties by procuratorial organs]
Acceptance and review Dissatisfied with the retrial verdict, Zhang and other 71 owners applied to the People's Procuratorate of Anshun City, Guizhou Province for supervision, and the court accepted the case on May 25, 2021. The court found that the retrial judgment did not calculate the liquidated damages for overdue certification in accordance with the parties' contract and that the law was wrongly applied, and accordingly submitted a protest to the Guizhou Provincial People's Procuratorate. In order to properly handle this series of disputes, the Guizhou Provincial People's Procuratorate fully assessed the legality and necessity of case supervision from the facts of the case, the application of law, and the ability of a real estate development company to perform. First, after communicating with the people's court, it was learned that in recent years, affected by the downturn in the real estate market, there has been an increase in commercial housing disputes caused by delayed delivery and overdue certificates. Taking into account the actual operational difficulties of the real estate development enterprises and the problems of later enforcement, the people's courts have mostly reduced the liquidated damages stipulated in the contract. Second, it was found through the search of similar cases that the rules for the reduction of liquidated damages for overdue certification of commercial housing are not uniform in the courts. Referring to Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Commercial Housing Sales Contracts, the liquidated damages in this series of cases have been reduced to a large extent, which is incompatible with the level of local economic development and cannot achieve the effect of urging all parties to the contract to perform their contractual obligations in good faith. Third, a real estate development company has been complained many times due to the disputes involved in the case, and its normal operation has been seriously affected, and there are other debt disputes, there is a risk of bankruptcy, and it does not have the ability to pay liquidated damages according to the standard of 1/10,000 per day. However, it still has 500,000 yuan left in the project quality deposit deposited in a commercial bank, and there is income from parking space leasing fees, and its actual affordability is higher than the standard confirmed by the effective judgment. Fourth, although the housing development project involved in the case was unable to apply for the real estate certificate because it did not apply for the filing of the existing commercial housing. However, after communication, the housing and construction, real estate registration and other departments said that they would give priority to assisting enterprises in applying for property rights certificates under the condition of improving relevant information.
Procuratorial Reconciliation Considering the complex and severe situation faced by the real estate economy and the follow-up enforcement problems, the Guizhou Provincial People's Procuratorate believes that simply filing a protest cannot solve the actual problems of Zhang and other owners, and it is difficult to completely resolve the contradiction from the source, and procuratorial reconciliation may be a better way to handle the case. Focusing on the crux of the conflict, the provincial and municipal procuratorates have taken the initiative to strengthen communication with the people's courts, relevant administrative departments, banks and other departments, and coordinated the work of reconciliation. The first is to actively coordinate with the housing and construction department and the real estate registration center, and through the improvement of relevant materials, the property rights certificates for 71 owners have been handled, which has solved the property rights issues that Zhang and others are most concerned about and worried about, and laid the foundation for a comprehensive settlement. Second, through the coordination of relevant banks, the 500,000 yuan project quality deposit deposited in advance for a project that has been accepted and accepted by a real estate development company will be unsealed, so as to provide conditions for the real estate development company to pay off the owner's liquidated damages. The third is to do a good job in the interpretation and analysis of Zhang and others, patiently explain and introduce the current economic situation and the difficulties in the operation of the real estate development enterprise, and analyze the problems that may be faced after the increase in liquidated damages, and Zhang and other 71 owners finally agreed to pay liquidated damages according to 0.3/10,000 per day. With the joint efforts of the procuratorate, law, administrative organs and other parties, the two parties finally reached a settlement, and a housing development company used the project quality deposit of 500,000 yuan to pay the liquidated damages for overdue licenses, and the insufficient part was deducted from the parking space rental fee, and 71 owners withdrew their applications for supervision to the procuratorate.
【Typical Significance】
(1) In handling cases involving real estate supervision, procuratorial organs should focus on substantively solving the difficulties of home buyers, actively perform their duties in accordance with the law, and earnestly safeguard the people's livelihood and interests. The housing issue involves the vital interests of the people, and properly handling real estate disputes in accordance with the law is an important part of "protecting people's livelihood". In handling cases involving real estate disputes, procuratorial organs should fully assess the possibility of realizing the buyers' demands in light of the real estate regulation and control policies and the current situation of market operations, and choose the best way to deal with them based on this. In this series of cases, the court had insufficient basis for reducing liquidated damages, which violated the principle of good faith in the contract, but the "first resistance" could not solve the problem of handling the certificate, and it would also face the situation that the judgment in accordance with the contract could not be enforced after the retrial. In view of this, on the basis of comprehensive investigation and verification, the procuratorial organs fully assessed the possibility of substantively resolving the dispute, actively carried out procuratorial reconciliation, guided both parties to reasonably resolve the contradictions and disputes in accordance with the law, and solved the problem of applying for certificates and liquidated damages that were strongly reflected by the buyers in a package, so as to protect the legitimate rights and interests of the buyers to the greatest extent, and demonstrate the feelings and responsibilities of the civil procuratorate for the people's justice.
(2) Procuratorial organs should strengthen the integrated, comprehensive, and active performance of their duties in cases involving real estate supervision, and form a joint force through multi-party linkage, so as to improve the effectiveness of procuratorial reconciliation. In recent years, with the increasing downward pressure on the economy, a large number of disputes over the sale and purchase of commercial housing have entered civil litigation, among which disputes over overdue delivery of housing and overdue certification are the majority, showing the characteristics of a large number of people involved in litigation, large subject matter of litigation, and sharp contradictions between the parties, which are difficult to resolve. In carrying out procuratorial reconciliation, procuratorial organs should make full use of the rule of law thinking and methods, and form a multi-directional, hierarchical and progressive pattern of multi-directional force, cohesion and supporting multiple dispute resolution through the integration of upper and lower levels, joint investigation of the procuratorate and the law, and linkage between the government and the court, and actively promote the integrated and comprehensive active performance of duties, and cooperate in promoting administrative approvals, finding the property of real estate enterprises, strengthening the interpretation of the law and reasoning, and risk prevention and control, so as to increase the effect of procuratorial reconciliation.
Sun and a real estate development company in Hengshui confirmed the contract invalidity dispute civil prosecution settlement case
【Keywords】
Commercial housing sales contract, standard clauses, procuratorial settlement, source management
[Basic facts of the case]
On September 22, 2017, Mr. Sun signed a contract for the sale and purchase of commercial housing with a real estate development co., LTD. in Hengshui (hereinafter referred to as a real estate company), which stipulated that Mr. Sun purchased a shop located on the west side of Jinghang Street, Zhengkou Town, Gucheng County, Hengshui City. Article 7 of Annex III "Decoration and Equipment Standards" in the contract for the sale and purchase of commercial housing stipulates that the roof platform on the second floor shall be used by the residents on the third floor, and the specific use area shall be detailed in the design drawings. After moving in, because the residents on the third floor built fences, courtyards, vegetable gardens, etc. on the roof platform on the second floor, the roof structure was seriously damaged, resulting in perennial rain leakage from the shop purchased by Sun; On February 25, 2021, Mr. Sun sued a real estate company to the Gucheng County People's Court of Hebei Province, requesting the court to make a judgment to confirm the invalidity of the standard clause of Article 7 of Annex III of the commercial housing sales contract, which states that "the roof platform on the second floor shall be used by the residents on the third floor".
The Gucheng County People's Court rendered a civil judgment on April 7, 2021. The court held that a real estate company did not recognize that Article 7 of Appendix III of the commercial housing sales contract signed between it and Sun was pre-drafted for the purpose of repeated use, and that Sun's submission of only one commercial housing sales contract was not sufficient to prove that the clause was a standard clause, and that the clause was not invalid under the law. Therefore, the court rejected Sun's litigation claim.
Sun was dissatisfied with the first-instance judgment and appealed to the Hengshui Intermediate People's Court, which made a civil judgment on June 29, 2021. The court held that a standard clause can only be declared invalid if it is invalid as prescribed by law, and it is not necessarily invalid as long as it is a standard clause. In this case, when Sun purchased the shop involved in the case, the shop was an existing house, and when Sun took over the shop, he inspected the shop, noted the problems of the shop involved in the case on the "Commercial and Residential Building Handover Confirmation Form" and signed for confirmation. The issues listed in the confirmation form signed by Sun did not include the roof platform of the shop involved in the case, and the roof platform of the shop involved in the case did not belong to the exclusive part of the shop purchased by Sun, and Sun's claim that the clause in Item 7 of Annex III "the roof platform on the second floor is used by the residents on the third floor" restricted his rights as the owner and lacked factual and legal basis, and the court did not support it. Although Sun asserted that the roof of the building was not inspected when the shop involved in the case was inspected, he did not provide corresponding evidence to prove his claim. At the same time, the Contract for the Sale and Purchase of Commodity Housing signed by both parties stipulates that this contract and its annexes have a total of 13 pages, and the annexes to the contract have the same legal effect as this contract. Since the two parties to the "Commodity Housing Sale and Purchase Contract" have signed and taken effect and have been recorded, it should be deemed that Sun is aware of the content of Annex III of the "Commodity Housing Sale and Purchase Contract", and the content of Annex III of the contract is also the true expression of the intention of both parties, which is legal and valid. Therefore, the court rejected the appeal and upheld the original judgment.
Sun was dissatisfied with the second-instance judgment and applied to the Hebei Provincial High People's Court for a retrial. On November 9, 2021, the Hebei Provincial High People's Court ruled to reject Sun's application for retrial.
[Performance of duties by procuratorial organs]
Acceptance and review On February 21, 2022, Sun was dissatisfied and applied to the Hengshui Municipal People's Procuratorate for supervision. After accepting the case, the Hengshui Municipal People's Procuratorate used its power of investigation and verification in accordance with the law, after consulting the court file, questioning a number of witnesses provided by Sun, and sending a letter of assistance to the housing and urban-rural development department to investigate the design drawings and the "Commercial Housing Sales Contract" signed and filed by the residents on the third floor and a real estate company, so as to fully understand the basic facts and background of the case. The procuratorate's investigation found that the "Commercial Housing Sales Contract" signed between the third-floor residents and a real estate company did not stipulate that they had the right to use the roof of the second-floor building, and the planning and design drawings divided the roof of the second-floor into two parts, the northern half of which was the viewing platform on the third floor, and the southern half was the space for placing solar energy storage facilities for second-floor residents. When a real estate company sold a house to a third-floor resident, it verbally promised to use the roof platform on the second floor in accordance with the drawings. When the residents on the third floor used the roof platform on the second floor, they built fences, courtyards, and vegetable gardens without permission, which damaged the roof structure, causing the shop purchased by Sun to leak rain all year round, affecting Sun's daily business life.
Procuratorial Settlement After review, the procuratorate held that although the clauses involved in the case were pre-drafted by the developer for the purpose of repeated use, according to the relevant laws and regulations, except for general invalidity, standard clauses are only invalid if they involve the infringement of the main rights. In this case, the roof platform of the shop involved in the case did not belong to the exclusive part of the shop purchased by Sun, and Sun's claim that the clause restricted his rights as the owner lacked factual and legal basis, so although the clause involved in the case was a standard clause, it was not invalid. However, considering that the essence of the contradiction and dispute in this case was a dispute over adjacent relationships, Sun filed a lawsuit against a real estate company as the defendant to confirm the invalidity of the contract after repeated ineffective negotiations with the residents on the third floor, intending to safeguard the legitimate rights and interests of the normal residential use of the purchased house by denying the validity of the standard clauses in the Commercial Housing Sales Contract. The procuratorate simply made a decision not to support the application for supervision, but the case was not settled, and the contradictions caused by the irregular behavior of a real estate company in the sales process and the improper use of the roof platform by the owner of the third floor still existed. In order to alleviate the burden of litigation on the parties, the procuratorate invited five hearing officers, including people's supervisors, district people's congress deputies, and lawyers, to hold a public hearing on the case. At the hearing, the prosecutor gave a detailed introduction to the case, and the parties fully expressed their opinions, and the hearing officer commented on the developer's improper promises in the process of selling the house, allowing the residents on the third floor to build privately, and causing losses to the owners from the perspective of legal reasoning, so as to help both parties sort out their civil rights and obligations. Under the joint interpretation of the law by the prosecutor and the hearing officer, the two parties reached a settlement agreement, a real estate company carried out waterproof repairs on the roof, and assisted the relevant departments to demolish the roof of the second floor of the building, and Sun took the initiative to withdraw the application for supervision to the procuratorate.
Extension of work Hengshui Municipal People's Procuratorate in accordance with the law to carry out supervision work at the same time, through the integrated performance of duties and the Gucheng County People's Procuratorate to set up a special class for the management of litigation source case-handling, in accordance with the law to actively perform their duties, for the case found in the jurisdiction of some commercial housing community owners of private construction and ineffective supervision and other social governance problems, in accordance with the law to the Gucheng County Housing and Urban-Rural Development Bureau, Gucheng County Community Construction and Property Supervision and Management Preparation Work Leading Group Office and other units to formulate and issue procuratorial proposals, urge them to perform their regulatory duties, and deal with the problem of illegal construction in a timely manner. After the procuratorial recommendations were formulated and issued, all functional departments attached great importance to them, strengthened the investigation as soon as possible, carried out internal rectification, established rules and regulations, and took multiple measures to rectify the problem.
【Typical Significance】
(1) When handling cases involving the supervision of commercial housing sales contracts, the procuratorial organs should not only accurately determine the legal relationship, but also pay attention to the actual results of case handling, and solve the problems of buyers' urgency, hardship and longing. Real estate is related to the survival rights and interests of ordinary people. In practice, some real estate companies, in order to facilitate sales, promise specific residents the right to use the part of the roof that is originally owned by the owners, and the specific residents build buildings on the roof without permission, damaging the structure of the building and causing potential safety hazards. In this case, in response to the standard clause that "the roof platform on the second floor belongs to the residents on the third floor" formulated by a real estate company when selling shops, Sun intended to realize the right to use the roof by suing the standard clause for invalidity, and solve the problem of roof leakage caused by the residents on the third floor building on the roof platform on the second floor. However, according to the relevant laws and regulations, the roof platform involved in the case did not belong to the exclusive part of the shop purchased by Sun, and although the clauses involved in the case were standard terms, they were not automatically invalid, and Sun's claim was not supported by law. In view of the above-mentioned circumstances, on the basis of accurately determining the legal relationship, the procuratorial organs comprehensively considered the legal reasoning and the situation, and promoted the two parties to reach a settlement agreement through public hearings, so that the contradictions were substantively resolved, and the procuratorial organs could truly be felt by the people, experienced, and benefited from the people.
(2) In handling cases, procuratorates shall use individual cases as an incision, extend procuratorial oversight, promote comprehensive social governance, and establish long-term effective working mechanisms. After the conclusion of this case, the procuratorate found that in recent years, there have been many cases that have intensified conflicts and brought to the court due to the failure to properly resolve the problem of private construction and big data screening. In order to promote the governance of the industry, the procuratorial organs adhere to the integrated performance of their duties, set up special teams to carry out relevant work, formulate and issue social governance procuratorial recommendations to relevant departments, and follow up on their implementation, to ensure that practical results are achieved. In addition, the father of the party in this case, Mr. Sun, is a retired soldier, and the shop involved in the case was purchased for his son with his savings for many years, and he campaigned to defend his rights for the problem of water leakage in the house, but could not be properly resolved in a timely manner, which to a certain extent reflects that there are problems such as poor mechanisms in the protection of the rights and interests of local veterans. To this end, the Hengshui Municipal People's Procuratorate and the Hengshui Veterans Affairs Bureau signed the "Working Mechanism on Strengthening Support for Prosecution and Protecting the Legitimate Civil Rights and Interests of Veterans" on the protection of the legitimate rights and interests of veterans, and established a civil support prosecution service station of the procuratorial organs in the Veterans Affairs Bureau, further forming a joint force for the protection of the legitimate rights and interests of veterans.
Zhang Mouzhong and Tang Mou housing lease contract dispute prosecution settlement case
【Keywords】
Housing lease contract, investigation and verification, procuratorial and legal convergence, substantive resolution
[Basic facts of the case]
On October 16, 2011, Zhang Mouzhong and Tang signed the "Shop Lease Contract", agreeing that Zhang Mouzhong would sublease the 3,700 square meters of shop leased by Tang (located on the third floor of a shopping plaza in Korla City, Xinjiang Uygur Autonomous Region) for a lease period of ten years (from November 17, 2011 to December 31, 2021), with a rent of 800,000 yuan for the first year and a subsequent rent increase of 5% year by year. After the contract was signed, Zhang Mouzhong registered the company with the address of the shop for carrying out business activities such as education and training. On April 18, 2019, because Zhang Mouzhong failed to pay the rent on time, Tang filed a lawsuit with the Korla Municipal People's Court, demanding that Zhang Mouzhong pay the outstanding house rent, liquidated damages and property fees. After hearing in absentia, the Korla Municipal People's Court ruled that Zhang Mouzhong should pay Tang a total of 4476225 yuan in rent and liquidated damages. On August 6, 2021, Tang applied for enforcement, and the Korla Municipal People's Court deducted 23,066.15 yuan from Zhang Mouzhong in accordance with the law, froze his equity and real estate, included him in the list of dishonest persons, restricted high consumption, and then made a ruling to terminate the enforcement procedure. During the enforcement process, Zhang Mouzhong was dissatisfied with the judgment of the Korla Municipal People's Court and applied to the Korla Municipal People's Court for a retrial, which was rejected by the ruling.
[Performance of duties by procuratorial organs]
On March 23, 2023, Zhang Mouzhong applied to the Korla Municipal People's Procuratorate for supervision, claiming that the actual lessee in this case was Zhang, and the court's trial procedure in absentia was illegal. After accepting the case, the Korla Municipal People's Procuratorate reviewed and reviewed the first-instance, retrial, and enforcement files of the case, and after review, it was found that the first-instance judgment of the case was a default judgment, and it was determined that the basic facts that Zhang Mouzhong owed Tang more than 400 yuan in rent were unclear and lacked evidence to prove it. The procuratorate conducted the following investigation and verification work: first, fully hearing the opinions of both parties and the actual lessee Zhang on the facts, evidence and applicable law in the judgment of the case; second, guiding Tang and Zhang to calculate and provide relevant evidence on the unclear facts such as the lease term and unpaid rent in dispute between the two parties; and third, understanding the implementation of the law and the reasons for terminating the enforcement procedure with the enforcement judge. The procuratorate found that in September 2011, Zhang and Tang reached an agreement on the lease of the shop contract, and Tang signed the contract first. The following month, Zhang entrusted Zhang to sign the contract on his behalf, and Tang knew about it and did not raise any objections. During the performance of the contract, Zhang Mouzhong did not actually use the shop involved in the case, but Zhang actually used the shop after renovating it. Zhang first used 2,800 square meters alone, then partnered with others, and finally subleased the shop after dividing it. During this period, Tang directly collected part of the rent paid by the sublessee during the sublease period. Later, Zhang and Tang had a dispute over the subject and amount of rent payment, and the settlement failed many times, resulting in litigation.
Procuratorial Reconciliation In order to fully protect the lawful rights and interests of the parties and properly resolve the conflict, the procuratorate organizes a public hearing, notifies a person not involved in the case, Zhang, to participate, check the evidence and hear the opinions of all parties. During the hearing, Tang, Zhang, and Zhang confirmed that the rent totaled more than 6.51 million yuan by the end of 2017, and Tang admitted that the amount of the lawsuit did not deduct the rent of more than 2.26 million yuan paid by Zhang. However, Zhang proposed that due to the loss of the bank card, the transfer record of more than 100 yuan of rent payment could not be provided, and after 2017, Tang agreed to sublease and directly collected part of the rent, and now he cannot contact the sub-tenant, so that the outstanding part of the rent cannot be verified. Tang did not recognize this, and the reconciliation work reached an impasse. The procurator lays out the facts to the parties, explains the pros and cons, and patiently guides the three parties to empathize, understand and accommodate each other, and properly resolve the dispute. In the end, Tang, Zhang, and Zhang reached a settlement agreement, which stipulated: 1. Zhang, Zhang and Tang agreed to go to the court to sign an enforcement settlement agreement, and Zhang gave up the right to apply for supervision;2. Zhang and Zhang paid the remaining rent of 1.3 million yuan in installments for three years, and if it was overdue, they would bear 200,000 yuan of liquidated damages; 3. Terminated the housing lease contract between Zhang and Tang, and Tang voluntarily gave up the rent of more than 200 yuan from 2018 to 2021;4. If Zhang has other relevant rent payment vouchers, the amount exceeding 300,000 yuan can be deducted from the remaining rent payable of 1.3 million yuan.
After the hearing, the Korla Municipal People's Procuratorate submitted a proposal to the Korla Municipal People's Court for the resumption of enforcement, and the court decided to resume enforcement after review. Under the joint witness of the procurator undertaking the case and the enforcement judge, the parties signed an enforcement settlement agreement in accordance with the content of the procuratorial settlement agreement. On June 12, 2023, the applicant, Zhang Mouzhong, withdrew his application for supervision to the procuratorate.
【Typical Significance】
(1) In handling cases, procuratorates shall strengthen the guidance of the concept of the Civil Code, clarify legal relationships, and promote the standardization and legalization of the real estate leasing market. The contract law was applied to the court at the time of trial in this case, and the civil code had been implemented at the time of procuratorial supervision. Although the two do not stipulate the liability of the nominal lease and the actual lease, the Civil Code adds that the sub-lessee can pay rent directly to the lessor, and the overpaid part has the right to recover from the lessee, which implies the legislative spirit that whoever uses it pays and the actual user pays the rent. The procuratorate investigated and verified in accordance with the law, ascertained the basic facts of the case, and laid the foundation for the three parties to sign the procuratorial settlement agreement. Through the procuratorial settlement, the procuratorate encourages the nominal lessee and the actual lessee to voluntarily share the debt, which is in line with the value orientation of the Civil Code to encourage transactions and protect creditors.
(2) In handling cases, procuratorates shall actively promote the seamless connection between procuratorial reconciliation and court enforcement settlement, to promote a win-win situation for the procuratorate and the law, and reduce the burden of litigation on the parties. Dividing points and ending disputes is the proper meaning of judicial work. When supervising the effective civil judgments of the courts, the procuratorial organs not only ensure the effective implementation of the settlement agreement, but also form a joint force with the court to jointly protect the lawful rights and interests of all civil entities by constructing a case-handling model of "investigation, verification and ascertaining facts + public hearing + guiding the procuratorial settlement + docking with the court to enforce the settlement + follow-up and supervising enforcement". In this case, the procuratorate promoted the procuratorial settlement to connect with the court to enforce the settlement, and the court resumed the enforcement of the case, so as to avoid procedural idling, save judicial resources, and resolve the conflicts and disputes between the parties with maximum efficiency.
A series of cases in which Song Moujun, Zhao and Liu Mouyuan applied for non-enforcement of arbitral awards and enforcement supervision
【Keywords】
One house and two sales, arbitral award, non-enforcement, procuratorial suggestion
[Basic facts of the case]
In October 1999, Song Moujun, Zhao Mouyuan and Liu Mouyuan respectively signed the "Commercial Housing Purchase and Sales Contract" with a real estate development company in Hunan Province (hereinafter referred to as a real estate company), agreeing to purchase rooms 1-8 and 16 on the first floor of a building, with a unit price of 5,600 yuan per square meter and a total amount of more than 2.37 million yuan. Song Moujun and others paid the full amount and took possession of it, and the above-mentioned contract was filed with the housing management department.
In December 2001, a real estate company signed the Contract for the Sale and Purchase of Commodity Housing and the Supplementary Agreement with Song, agreeing to sell the south-end podium on the first floor of the building, including the above-mentioned house and façade purchased by Song Moujun and others, to Song, with an area of 633 square meters and a total amount of 4.431 million yuan. At the same time, it was agreed that the loan owed by a real estate company to Song would be used to settle the house payment, and Song had not yet occupied and used the house involved in the case, and the above-mentioned contract had not been recorded.
In May 2005, Mr. Song applied to the Changsha Arbitration Commission for arbitration, requesting a ruling on a real estate company to deliver the house involved in the case and assist in handling the house ownership certificate. In December of the same year, the Changsha Arbitration Commission made a ruling: "1. A real estate company shall, within 10 days from the date of service of this award, deliver to Song the commercial building (construction area of 633 square meters) on the first floor of a building purchased by Song from the south direction from axis (5) to axis (10); ”
After the arbitral award came into effect, Song applied to the Changsha Intermediate People's Court for enforcement. The Changsha Intermediate People's Court designated the Changsha Tianxin District People's Court to file the case for enforcement. In August 2006, the Tianxin District People's Court made a ruling to terminate the enforcement procedure on the grounds that it was found that part of the subject matter of enforcement had been occupied and used by Song Moujun and others, and that a real estate company had no property available for enforcement. In October 2009, the Tianxin District People's Court resumed enforcement and issued an announcement, requiring Song Moujun and others to vacate within a time limit, and Song Moujun and others raised objections. In November 2010, the Tianxin District People's Court made a ruling, rejecting the objections of Song Moujun and others, and informing them that they could file a lawsuit with the court within 15 days if they were not satisfied with the ruling. Song Moujun and others filed a lawsuit against enforcement with the Tianxin District People's Court, but because they failed to pay the litigation fees on time, they were deemed to have automatically withdrawn the lawsuit. In June 2012, the Tianxin District People's Court again took enforcement measures and issued an enforcement notice, requiring Song Moujun and others to vacate the house involved in the case. In September of the same year, Song Moujun and others again raised an objection to enforcement, and the Tianxin District People's Court again ruled to reject Song Moujun and others' objections. Song Moujun and others were not satisfied and applied to the Changsha Intermediate People's Court for reconsideration. The Changsha Intermediate People's Court made a ruling to revoke the Tianxin District People's Court's rejection of the objection and remanded for re-examination. In April 2014, the Tianxin District People's Court re-examined and held that the enforcement objection raised by Song Moujun and others was essentially an objection to the ownership of the real estate involved in the case, and that the rejection of the objection ruling made in 2010 was aimed at the same subject matter, so it did not repeat the ruling and rejected the objection of Song Moujun and others. Previously, in July 2013, the Tianxin District People's Court ruled to terminate the enforcement procedure on the grounds that it could not be enforced.
In 2019, Song applied to the Changsha Intermediate People's Court for resumption of enforcement. In July of the same year, the Changsha Intermediate People's Court designated the case to the Yuhua District People's Court of Changsha City for enforcement. In November of the same year, the Yuhua District People's Court ruled to transfer the property rights of the house involved in the case to the name of Song, and Song went to the relevant agency to go through the registration procedures for the transfer of property rights with this ruling. In October 2020, Song Moujun and others filed an enforcement objection with the Yuhua District People's Court. The Yuhua District People's Court held that the request for confirmation of the ownership of the real estate put forward by Song Moujun and others did not fall within the scope of the review of the enforcement objection procedure and was not reviewed. The essence of the objection to enforcement raised by Song Moujun and others is to assert that they have the right to obtain the ownership of the house in priority for the house involved in the case, thus excluding Song's application for enforcement based on the arbitral award, and the objection request is consistent with the substance of the objection request handled by the Tianxin District People's Court in 2010, and has been substantively handled by the Tianxin District People's Court, informing them to file a lawsuit for enforcement objection, and now Song Moujun et al.'s repetition of the enforcement objection is a duplicate claim of rights and does not meet the conditions for acceptance, so a ruling was made in December of the same year to reject the objection of Song Moujun and others。 Song Moujun and others were not satisfied and applied to the Changsha Intermediate People's Court for reconsideration again. In April 2021, the Changsha Intermediate People's Court ruled to uphold the Yuhua District People's Court's decision to reject the objection. In July of the same year, Song Moujun and others applied to the Changsha Intermediate People's Court for non-enforcement of the arbitral award, but as of June 2022, the court has not filed the case.
[Performance of duties by procuratorial organs]
Acceptance and review In June 2022, Song Moujun and others believed that the Changsha Intermediate People's Court had violated the law in the enforcement of the arbitration award in the dispute over the commercial housing sales contract between Song and a real estate company, and applied to the Changsha Municipal People's Procuratorate for supervision.
The procuratorate ascertained that the house involved in the case was delivered for use without going through the completion and acceptance procedures, resulting in the failure to handle the building certificate and the subdivision certificate of the house involved in the case in a timely manner, and then a real estate company caused a dispute over the ownership of the house by "selling one house twice", and the housing registration department believed that the ownership registration of the case was a historical problem, and required the parties to the dispute to go through the judicial procedure to determine the ownership before handling it. In 2013, Song Moujun and others petitioned on the enforcement of the case. In January of the same year, the relevant authorities convened a coordination meeting on the enforcement of the arbitral award. The Tianxin District People's Court held that the Changsha Arbitration Commission awarded a property award that did not belong to a real estate company to Song, making the case unenforceable, and ruled to terminate the enforcement procedure in July of the same year.
Supervision Opinions In August 2022, the Changsha Municipal People's Procuratorate issued a procuratorial recommendation for enforcement supervision to the Changsha Intermediate People's Court. According to the procuratorate, when handling a dispute over the sale of a house, if several contracts are valid and the buyer requests the performance of the contract, the order of rights protection should generally be determined in the order of the change of ownership of the house, the lawful possession of the house, the performance of the contract, and the order in which the sales contract was established. In this case, Song Moujun and others purchased the house involved in the case before signing the contract and making the payment first, and went through the contract filing with the housing management department, and actually occupied and used the house for more than 20 years, so it should be determined that their rights protection priority preceded Song. A real estate company concealed the fact that the house involved in the case had been sold during the arbitration process, infringing on the legitimate rights and interests of Song Moujun and others, who had signed the contract earlier, and should rule not to enforce the arbitral award.
In addition, in 2006 and 2013, the Tianxin District People's Court enforced the ascertained facts of the case and ruled to terminate the current enforcement procedure. The Yuhua District People's Court once again ruled on the transfer of ownership of the real estate involved in the case as the subject matter of enforcement, which obviously contradicted the prior enforcement activities. Song Moujun et al.'s objections and applications for reconsideration should not be found to be repeated claims of rights, and the Yuhua District People's Court's rejection of their objections and the Changsha Intermediate People's Court's reconsideration were improper.
Supervision results The Changsha Intermediate People's Court adopted the procuratorial recommendation of the Changsha Municipal People's Procuratorate not to enforce the arbitral award, and made an enforcement ruling on November 1, 2022, revoking the Tianxin District People's Court's objection ruling rejecting Song Moujun and others. In addition, the Changsha Intermediate People's Court ruled on March 31, 2023 not to enforce the effective arbitral award in this case in the case of Song Moujun et al.'s application for non-enforcement of the arbitral award.
【Typical Significance】
(1) When handling cases of supervision of "one house and two sales", the procuratorate shall adhere to the principle of distinction and accurately determine the validity of the housing sales contract and the ownership of the house. "Two sales" refers to the act of a seller selling the same particular house to different buyers. In practice, as a real estate developer, the seller carries out illegal acts such as "two sales of one house" due to the restrictions of the national real estate regulation and control policies, the narrowing of financing channels, and the increasingly tight capital chain, which not only damages the legitimate rights and interests of the buyer, but also undermines the order of real estate transactions. In handling the case, the procuratorate shall comprehensively handle the registration of the change of the house, the lawful possession of the house, the performance of the contract, and the order in which the sales contract was established, and determine the order of protection of rights, and other buyers who have not obtained the ownership of the house have the right to request that the seller return the purchase price and compensate for their losses. In this case, the procuratorial organs gave full play to the role of civil procuratorial functions, effectively supervised the issue of "one house and two sales" in real estate transactions, safeguarded the legitimate rights and interests of Song Moujun, the prior buyer of the house, enhanced the people's confidence in real estate transactions, ensured the order and safety of real estate transactions, implemented the people-centered development philosophy, and protected the people's livelihood and interests with the power of the procuratorate.
(2) The procuratorate shall effectively safeguard the lawful rights and interests of persons not involved in the arbitration case by supervising the court's enforcement of effective arbitral awards. At this stage, there is no clear legal basis for the procuratorial organs to directly supervise arbitration activities, but there is both a legal basis and a practical basis for indirect supervision of arbitration procedures by supervising the judicial review of arbitral awards by the people's courts. According to the provisions of the Civil Procedure Law, the procuratorial organs have the right to exercise legal supervision over the enforcement activities of the people's courts, and if the people's courts rule to enforce or not to enforce the arbitral awards, the ruling is a civil enforcement judgment of the people's courts. In this case, the developer, a real estate company, deliberately concealed the fact that the house involved in the case had been sold and filed with the arbitration institution, causing the arbitration institution to make an erroneous arbitral award and maliciously damage the rights and interests of Song Moujun, the former buyer of the house. The procuratorate conducted an investigation and verification of the relevant facts involved in the arbitral award, and on this basis, issued a procuratorial recommendation to the court not to enforce the arbitral award, which was adopted by the court, effectively safeguarding the legitimate rights and interests of persons not involved in the arbitration case.
Huang Mouhai and 27 others filed a series of protests against a real estate company over a commercial housing sales contract dispute
【Keywords】
Liquidated damages for overdue certificates, exercise of discretion, protests, joint investigation by the procuratorate and law
[Basic facts of the case]
In 2010, Huang Mouhai and 27 others signed the "Commercial Housing Sales Contract" with a real estate company in Putian City, Fujian Province (hereinafter referred to as a real estate company) to purchase commercial housing from a real estate company. The contract stipulates that if the buyer fails to obtain the house ownership certificate within 90 days after the delivery of the commercial house due to reasons attributable to the seller, the seller shall pay liquidated damages at the rate of 2/10,000 of the payment per day from the date of overdue. After Huang Mouhai and 27 others paid the down payment and applied for mortgage loans, a real estate company successively delivered the houses from June to December 2013, but failed to apply for the housing ownership certificate for Huang Mouhai and 27 others due to the inconsistency between the actual construction and the project plan.
In May 2015, Huang Mouhai and 27 others sued a real estate company to the People's Court of Licheng District, Putian City, requesting that the real estate company be ordered to pay liquidated damages for overdue certification at the standard of 2/10,000 per day based on the purchase price. A real estate company believed that the liquidated damages stipulated in the contract were too high and requested the court to reduce the interest rate calculated based on the provident fund loan.
The People's Court of Licheng District, Putian City, held that a real estate company constituted a breach of contract, but the liquidated damages for overdue certification stipulated in the contract far exceeded the actual losses of the buyer, and the objective factors involved in handling the housing ownership certificate were beyond the control of the seller, and ruled that a real estate company should pay liquidated damages for overdue certification to Huang Mouhai and 27 others based on the purchase price and 50% of the interest rate of the same type of provident fund loan in the same period. Huang Mouhai and 27 others were not satisfied and appealed to the Putian Intermediate People's Court. The Putian Intermediate People's Court held that it was not improper to adjust the standard of liquidated damages in the first instance and upheld the original judgment. After the second-instance judgment took effect, Huang Mouhai and 27 others successively applied for housing ownership certificates in April 2017.
Huang Mouhai and 27 others separately applied to the Fujian Provincial High People's Court for a retrial. The Fujian Provincial High People's Court held that the adjustment of liquidated damages was within the scope of discretion and rejected the application for retrial of 27 people, including Huang Mouhai.
[The process of performing duties by the procuratorate]
Acceptance and review Huang Mouhai and 27 others were dissatisfied with the effective judgment and applied to the Putian Municipal People's Procuratorate for supervision. Due to the large number of people involved in this series of cases, the Fujian Provincial People's Procuratorate promptly intervened to guide the handling of the cases. The procuratorate retrieved more than 2,000 similar cases handled by the courts in Putian since 2016, and found that the courts had different judgments on the calculation standards for liquidated damages for late certificates. It was also ascertained that Huang Mouhai and the other 27 people all purchased houses through commercial mortgage loans, and the court ruled that the liquidated damages for overdue certification should be calculated at 50% of the interest rate of the provident fund loan, and the difference between the liquidated damages standard and the mortgage loan interest rate agreed in the contract was large, which seriously damaged the legitimate rights and interests of the buyer and had the necessity of supervision.
Supervision Opinions The Putian Municipal People's Procuratorate submitted the 27 series of cases to the Fujian Provincial People's Procuratorate for a counter-appeal. The Fujian Provincial People's Procuratorate believes that (1) the "Contract for the Sale and Purchase of Commodity Housing" is legal and valid and should be strictly performed. Even if it is difficult to determine the amount of the buyer's losses, it should be calculated in accordance with Article 18 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Commercial Housing Sales Contracts with reference to the standard for financial institutions to calculate interest on overdue loans, and the judgment is based on 50% of the interest rate of the provident fund loan, which lacks legal basis. (2) "Commercial Housing Sales Contract" It is a standard contract provided by a real estate company, and the liquidated damages clause for overdue certification is an inherent clause in the contract, relative to a real estate company, Huang Mouhai and other 27 people are the weaker party in the contracting position, and the reason for the overdue certificate is that the actual construction of a real estate company is inconsistent with the project plan, Huang Mouhai and other 27 people are not at fault, and a real estate company has not been able to provide evidence to prove that the liquidated damages for overdue certification agreed in the contract are excessively higher than the loss of the buyer, and the court ruled to significantly reduce the standard of liquidated damages, which is obviously unfair to Huang Mouhai and other 27 people. (3) In the litigation, a real estate company only requested the court to adjust the liquidated damages for overdue certification according to the interest rate of the provident fund loan, and the court ruled to adjust it to 50% of the interest rate of the provident fund loan, which exceeded the scope of the party's litigation claim. On June 30, 2022, the Fujian Provincial People's Procuratorate filed a protest with the Fujian Provincial High People's Court on the series of cases.
The Fujian Provincial High People's Court ruled to bring the 27 series of protest cases to trial. During the retrial, the two courts relied on the collaborative mediation mechanism for civil protest cases, patiently and meticulously carried out the ideological work of the parties on a case-by-case basis, and actively facilitated the two parties to reach a mediation agreement. On November 25, 2022, all the retrial and mediation of the series of protest cases were concluded, and Huang Mouhai and other 27 people received an average compensation of about 70,000 yuan per person on the basis of the original judgment, and a real estate company completed all the performance within one month.
【Typical Significance】
(1) In the case of disputes over commercial housing sales contracts, the procuratorial organs shall strengthen supervision and safeguard the legitimate rights and interests of buyers if the effective judgment fails to investigate the liability of the developer for breach of contract for overdue handling of the housing ownership certificate in accordance with the law. The house ownership certificate is a legal certificate for the buyer to obtain the legal ownership of the house, and after obtaining the house ownership certificate, the buyer can transfer, donate, inherit, lease, mortgage and other activities to realize the value of the real estate. The Administrative Measures for the Sales of Commodity Housing clearly stipulate that it is the legal obligation of developers to assist buyers in completing property rights registration procedures. The liquidated damages clause for overdue certification can be stipulated in the "Commercial Housing Sales Contract", which can urge the developer to perform its obligations in a timely manner and ensure that the buyer's contractual rights are realized as soon as possible. In this case, the responsibility for overdue application of the housing ownership certificate lies entirely with the developer, and the buyer is not at fault, and the court adjusted the standard of liquidated damages for overdue application from 2/10,000 per day (equivalent to about 7.3% per annum) to 50% of the provident fund loan interest rate (equivalent to about 1.35% per annum), which will greatly reduce the binding effect of the developer's default costs and liquidated damages clauses on the developer, and damage the legitimate rights and interests of the buyers. By supervising the improper exercise of discretion by the courts, the procuratorial organs have effectively promoted the resolution of the long-standing problem of inconsistent adjudication standards for liquidated damages for overdue certification in disputes over commercial housing sales contracts, and brought into play the value of correcting deviations and leading.
(2) In handling cases, procuratorial organs should strengthen joint investigation by the procuratorate and the law, promote the substantive resolution of contradictions and disputes, and strive to resolve the people's problems of urgency, hardship, and longing. In practice, it is common for developers to over-apply for permits or deliver houses in a late manner, and such cases involve a wide range of cases and have a great impact. In handling such cases, procuratorial organs should deeply practice the "Fengqiao experience" in the new era, integrate the concept of justice for the people into the whole process of civil procuratorial work, and handle cases that occur around the masses and are related to the vital interests of the masses with heart and affection. In this case, many buyers failed to apply for the house ownership certificate after three or four years of overdue delivery, and went to a real estate company many times to defend their rights, and had conflicts with the company's staff, which greatly affected the company's production and operation and local reputation. After the Fujian Provincial Procuratorate lodged a protest against the 27 series of cases, it conscientiously implemented the requirements of the "two supremes" on doing a good job in mediation and conflict resolution in protest retrial cases, and took the initiative to communicate with the retrial court to jointly study and formulate a mediation plan. From the perspective of procuratorial supervision, the procuratorial organs are to help the parties correctly understand the facts of the case and clarify responsibilities, guide the parties to understand each other and finally reach a mediation agreement, truly realize the conclusion of the case, and truly enhance the public's sense of access to justice.
Ningbo Building Decoration Co., Ltd. and Ningbo Literary and Artistic Creation Studio Decoration Contract Dispute Prosecution and Settlement Case
【Keywords】
Decoration contract disputes, public hearings, procuratorial settlements, and package mediation
[Basic facts of the case]
On May 30, 2022, a building decoration company in Ningbo (hereinafter referred to as the decoration company) signed a "construction contract" with a literary and artistic creation studio in Ningbo (hereinafter referred to as the literary studio), agreeing that the decoration company would provide decoration services such as wall masonry, electrical transformation, tile paving, and paint painting, with a project cost of 130,000 yuan. In the process of performing the contract, the two parties signed the Supplementary Agreement to the Construction Contract to stipulate the completion date of the renovation project and other matters. After the completion of the project, the art studio paid for the project according to the contract, and the two parties had a dispute over the quality of the decoration. On September 21, 2022, the literary studio filed a lawsuit with the People's Court of Yinzhou District, Ningbo City, requesting an order to confirm the termination of the construction contract involved in the case, requiring the decoration company to refund the decoration money and bear the losses of liquidated damages, lawyer fees, and guarantee fees totaling more than 527,000 yuan, and later changed the loss amount to more than 57,000 yuan in the trial. During the litigation, the two parties caused a police situation due to a dispute over a renovation contract.
The People's Court of Yinzhou District, Ningbo City, held that the decoration company had basically completed the decoration task, and the conditions for the termination of the contract had not yet been established, but in view of the fact that it did not have the corresponding decoration qualifications, which affected the filing and acceptance of the literary studio and the normal opening of the literary studio, and that there were some uneven floors and no new floor tiles in the corners, it was decided that the decoration company should return the decoration money of the literary studio and bear the losses of liquidated damages, attorney fees and preservation fees totaling 16,100 yuan. Dissatisfied, the decoration company appealed to the Ningbo Intermediate People's Court. The Ningbo Intermediate People's Court held that the ground was uneven and the delivery was overdue, and the court of first instance found that it was reasonable for the decoration company to compensate for the losses, and rejected the appeal and upheld the original judgment. The decoration company was dissatisfied with the second-instance judgment and applied to the Zhejiang Provincial Higher People's Court for a retrial, and the retrial court ruled to reject the decoration company's application for retrial.
[The process of performing duties by the procuratorate]
Acceptance and review The decoration company applied to the Ningbo Municipal People's Procuratorate for legal supervision, asserting that the court's determination of facts was wrong and requesting a protest. After accepting the case in accordance with the law, the procuratorate consulted the case file, visited the decoration site of the project involved in the case, and consulted the professional opinions of the fire department of the housing and urban-rural development bureau in the jurisdiction to fully understand the dispute of the project involved in the case. After examination, it was found that the decoration company had been engaged in construction engineering decoration projects in Ningbo for many years, and established a cooperative relationship with the literary studio at a lower price based on a friend relationship, and it not only completed the decoration project involved in the case, but also provided free assistance in moving and other related services for the project involved in the case outside the contract. After inspecting the decoration site on the spot, it was ascertained that the court had certain flaws in the determination of facts, and the floor involved in the case was polyvinyl chloride plastic film, which was a means of decorating the original floor, and the decoration floor could not be leveled; the unlaid floor in the corner and the late delivery were inconsistent with the objective reality, and it was not a unilateral breach of the contract by the decoration company.
It was also learned that the legal representative of the decoration company was dissatisfied with the judgment of this case, and also sued separately to demand that the art studio and the operator pay labor remuneration outside the scope of the project contract involved in the case. After the judgment took effect, the literary studio applied to the court for compulsory enforcement, but the enforcement failed because there were no assets in the account of the decoration company.
Considering that both parties involved in the case are small and micro enterprises of market entities, the amount of dispute is small, and new litigation disputes have arisen, if the mediation can be carried out in a package, it can avoid and prevent further escalation of conflicts between the parties, and can also help solve the difficulty of enforcement, so as to quickly realize the respective interests of the parties.
Procuratorial Reconciliation In order to smooth the channel for the protection of the rights and interests of the parties, the Ningbo Municipal People's Procuratorate organized a public hearing, and carefully invited the president of the Ningbo Time-honored Brand Association, who has been engaged in enterprise management for a long time, the national gold medal mediator who is good at doing mass work, and the well-known civil and commercial lawyers with rich experience as hearing officers to participate in the work of guiding the settlement and settlement of litigation. At the hearing, objectively and impartially help the parties to analyze the pros and cons, and inform the decoration company that there is no basis for the right to sue for a labor dispute case filed separately, and its early performance of the enforcement payment can avoid the company being included in the blacklist of dishonesty and the legal representative from being restricted from high consumption and other enforcement punishment measures. At the same time, persuade the literary studio to make certain concessions on the compensation. After repeated communication, open the legal knot and heart knot of the parties, and find the balance of interests of both parties. In the end, the decoration company and the art studio reached a settlement agreement, and the decoration company compensated the art studio for various losses totaling 6,000 yuan, and the performance was completed on the spot. The decoration company withdrew its application for supervision to the Ningbo Municipal People's Procuratorate and withdrew the labor contract dispute case to the Yinzhou District People's Court, and the Yinzhou District People's Court made a civil ruling allowing the withdrawal of the lawsuit. The literary studio applied to the Yinzhou District People's Court for enforcement and closed the case.
【Typical Significance】
(1) When the procuratorate handles the supervision of decoration contract disputes, it shall make a comprehensive judgment on the actual situation of the case in combination with the decoration industry norms and relevant legal provisions. The decoration industry is related to the quality of living and quality of life of the people, but due to the uneven qualifications of the construction subjects in the decoration industry and the strong demand for personalized decoration, the construction quality and delivery standards are often unclear, resulting in frequent contract disputes. In judicial practice, it is difficult for the parties to reach an agreement on the terms of the contract in accordance with the principle of benefiting themselves. Through on-the-spot visits to the project site involved in the case, the procuratorate consulted the administrative organ's decoration qualifications, decoration quality standards and other professional opinions, and on the premise of ascertaining the objective facts of the case, accurately understood and applied the relevant provisions on liability for breach of contract, reasonably guided the parties to understand the liability for breach of contract and the amount of compensation for both parties, and laid the foundation for promoting the settlement of the case.
(2) In handling cases, procuratorates shall strengthen procuratorial reconciliation, strengthen governance of litigation sources, and substantively resolve conflicts and disputes involving litigation. While performing the function of legal supervision, procuratorial organs should strengthen the review of the legality and necessity of supervision, and strive to seek the best solution for supervision and case handling from the perspective of resolving the source of contradictions and disputes, stabilizing market expectations, and serving small and micro enterprises. In this case, the procuratorial organs actively carried out civil procuratorial reconciliation, understood the knot through public hearing and proofing, and systematically handled the procuratorial supervision, labor contract disputes and enforcement cases between the parties arising from the projects involved in the case, which not only reduced the litigation burden of the parties, but also saved judicial resources, avoided small and micro enterprises from falling into the implementation of punitive measures, and used procuratorial wisdom and the power of the rule of law to build a fair and transparent, standardized management, competitive and orderly market order, and promote the steady and healthy development of business entities.
Source | Prosecutor's Daily