XX company and XX did not perform XX duties administrative second-instance administrative judgment
Intermediate People's Court of Xining City, Qinghai Province
Administrative Judgments
(2024) Qing 01 Xing Zhong No. 13
The appellant (plaintiff in the original trial) was a certain company.
The legal representative is Xue Moumou, the general manager of the company.
Entrusted agent ad litem Duan XX, male, a staff member of the company.
The appellee (defendant in the original trial) XX organized A.
The legal representative is Chen Moumou, the director of the center.
Entrusted litigation agent Li Zhenglin, lawyer of Beijing Yingke (Xining) Law Firm.
Entrusted litigation agent Tie Moumou, trainee lawyer of Beijing Yingke (Xining) Law Firm.
The third party in the original trial organized B.
The person in charge, Li Moumou, secretary of the party committee of the bureau.
Entrusted litigation agent Cai Yanyun, lawyer of Qinghai Weifang Law Firm.
The appellant, XX Company (hereinafter referred to as Jinqiao Company), appealed to this court against the administrative judgment of Xining Railway Transport Court (2023) Qing 8601 Xingchu No. 268 for suing the appellee XX Organization A (hereinafter referred to as the Real Estate Registration Center) for non-performance of transfer registration. This court formed a collegial panel in accordance with the law and tried the case, and the trial has now been concluded.
The court of first instance found that on July 13, 2020, the Intermediate People's Court of Xining City, Qinghai Province, issued an enforcement ruling (2018) Qing 01 Zhi No. 390-2, ruling that: (1) the seizure measures for the land use right right with an area of 4,801.43 square meters under the name of Qinghai New West Real Estate Development Co., Ltd. located at No. 37, Tong'an Road, Chengnan New District, Xining City, with the certificate number of Ningnan Guoyong (2008) No. 56 covering an area of 4,801.43 square meters should be lifted; The land use right right of Qinghai New West Real Estate Development Co., Ltd., located at No. 37, Tong'an Road, Chengnan New District, Xining City, with the certificate number of Ningnan Guoyong (2008) No. 56, with an area of 4,266.66 square meters (the remaining land use right area after removing the 534.77 square meters occupied by the office building from the 4,801.43 square meters of land) was sold at a failed auction price of 6,839,029.31 yuan to the applicant for execution, so as to offset the equal amount of debt owed by the person subject to enforcement to the applicant for enforcement. 3. The land use right right with an area of 4,266.66 square meters under the name of Qinghai New West Real Estate Development Co., Ltd., located at No. 37, Tong'an Road, Chengnan New District, Xining City, with the certificate number of Ningnan Guoyong (2008) No. 56, with an area of 4,266.66 square meters, shall be transferred to Jinqiao Company, the applicant for execution, from the date of service of this ruling. 4. Jinqiao Company, the applicant for execution, may go to the real estate registration center to go through the relevant property rights transfer procedures with this ruling. After receiving the application, the real estate registration center issued Ning Real Estate Letter (2023) No. 107 on July 15, 2023 "Reply Letter on the Application for Registration of Real Estate Transfer of Certain Company", arguing that: in accordance with Article 14 of the Interim Regulations on Real Estate Registration and Article 27 of the Detailed Rules for the Implementation of the Interim Regulations on Real Estate Registration, Jinqiao Company's application for the transfer of the right to use the state-owned construction land located at No. 37 Tong'an Road, Chengzhong District, Xining City to its name, met the conditions for unilateral application. According to the immovable property registration center, according to the third paragraph of Article 14 of the Interim Regulations on the Registration of Immovable Property, if a real estate right is established by an effective legal document of the people's court, the party concerned may apply unilaterally. The Real Estate Registration Center has no objection to Jinqiao Company's unilateral application for the registration of the transfer of the right to use state-owned construction land located at No. 37 Tong'an Road, Chengzhong District, Xining City, and Jinqiao Company may unilaterally apply for the registration of the transfer of the right to use the above-mentioned state-owned construction land under the premise that the application registration requirements are complete. In accordance with Article 3 of the Notice of the State Administration of Taxation and the State Land Administration on Several Issues Concerning the Collection and Administration of Land Appreciation Tax (Guo Shui Fa (1996) No. 4), Article 38 of the Detailed Rules for the Implementation of the Interim Regulations on Real Estate Registration, and Article 8.3.3 of the Operational Specifications for Real Estate Registration, Jinqiao Company unilaterally applied for the registration of the transfer of the right to use state-owned construction land located at No. 37 Tong'an Road, Chengzhong District, Xining City, and required to submit the relevant proof of tax payment before it could handle the registration of real estate. Although Jinqiao Company obtained the relevant state-owned construction land use rights by repaying debts in kind in accordance with the effective legal documents of the people's courts, when it applied to the real estate registration center for the registration of the transfer of the state-owned construction land use rights, it did not submit the relevant tax payment certificates, the registration requirements were incomplete, and it did not meet the legal conditions for the registration of the transfer of the state-owned construction land use rights, and the real estate registration center was unable to handle the registration procedures for the transfer of the state-owned construction land use rights for Jinqiao Company. Dissatisfied, Houjinqiao Company filed a lawsuit in this case.
The court of first instance held that, according to Article 6 of the Interim Regulations on the Registration of Immovable Property, "the competent department of land and resources under the State Council shall be responsible for guiding and supervising the registration of immovable property nationwide. The local people's government at or above the county level shall designate a department as the immovable property registration authority of its administrative region, which shall be responsible for the registration of immovable property, and shall accept the guidance and supervision of the competent department of immovable property registration of the people's government at a higher level. Article 7 "The registration of immovable property shall be handled by the immovable property registration authority of the people's government at the county level where the immovable property is located; The people's governments of municipalities directly under the Central Government and cities divided into districts may designate the immovable property registration bodies at the same level to uniformly handle the registration of immovable properties in their respective districts. The immovable property registration center has the statutory authority to register immovable property. According to Article 27 of the Detailed Rules for the Implementation of the Provisional Regulations on the Registration of Immovable Property, "where the transfer of immovable property rights is caused by the following circumstances, the parties concerned may apply to the immovable property registration authority for transfer registration...... (7) The transfer of immovable property rights is caused by the effective legal documents of the people's courts or arbitration commissions; ...... "Article 15 (4): "Whether the tax payment or payment vouchers stipulated by laws and administrative regulations are complete. Article 38: "Those who apply for registration of the right to use state-owned construction land and the transfer of ownership of houses shall submit the following materials according to different circumstances: certificate of ownership of immovable property; Contracts of sale, exchange, gift; inherited or bequeathed materials; Approval documents of the people's government or competent department with the right to approve; Proof of payment of relevant taxes and fees; Other necessary materials", if the transfer of immovable property rights occurs due to the effective judgment of the people's court, the parties concerned shall submit the tax payment or payment vouchers prescribed by laws and administrative regulations to the registration department when handling the transfer registration. In this case, after Jinqiao Company obtained the land use right of Qinghai New West Real Estate Development Co., Ltd. located at No. 37 Tong'an Road, Chengnan New District, Xining City, in the form of debt redemption in the form of debt redemption, Jinqiao Company applied to the Real Estate Registration Center for the transfer formalities and required the relevant documents for the payment of taxes and fees before it could handle the registration of the transfer of the immovable property, but Jinqiao Company did not submit the relevant documents for the payment of taxes and fees. Before filing a lawsuit, the immovable property registration center informed Jinqiao Company in writing of the materials that must be provided and the conditions to be met for the registration of the transfer of ownership of immovable property, and the facts were clear, the law was correctly applied, and the administrative acts were lawful. Jinqiao Company's petition to require the immovable property registration center to perform its statutory duty to handle the transfer registration has no factual and legal basis, and its claim is not supported. In accordance with the provisions of Article 69 of the Administrative Litigation Law of the People's Republic of China, the judgment rejects the litigation claim of Jinqiao Company. The case acceptance fee is 50 yuan, which is borne by Jinqiao Company.
After the judgment was pronounced, Jinqiao Company was dissatisfied and appealed to this court, claiming that: 1. The appellant's application for transfer registration not only had an effective ruling of the people's court, but also had sufficient legal basis and met the conditions for unilateral application, and could unilaterally apply for transfer registration, and the litigation claim should not be dismissed; 2. According to the arguments and evidence adduced by the immovable property registration center of the first instance, among the legal grounds for its non-transfer registration, in addition to the "Provisional Regulations of the People's Republic of China on Land Appreciation Tax" and the "Detailed Rules for the Implementation of the Interim Regulations on the Registration of Immovable Property", which have been effectively used so far, the other "Provisional Regulations of the People's Republic of China on Deed Tax" and "Provisional Regulations of the People's Republic of China on Stamp Duty" have long been repealed and are no longer in use. The use of partially repealed legal provisions in the exercise of administrative power and the taking of administrative acts is obviously without legal basis and should be revoked; 3. The core of the first-instance judgment is that "the relevant proof of tax payment is not available, so the registration certificate for the transfer of immovable property rights is not processed", but the appellant handled and paid the taxes and fees that should be paid, and all parties have no objection to this fact, and then unilaterally applied for the transfer registration, as to how the taxes and fees have not been paid, etc., the first-instance judgment is not clear; 4. The appellant argued that the effective legal documents made by the people's court should be legal and valid and must be enforced, and at the same time, the Explanation of Circumstances of the third party of the first instance also clarified the relevant facts and responsibilities, and the evidence and legal basis provided by the real estate registration center also recognized that it was possible to unilaterally apply for transfer registration, so the first-instance judgment rejecting Jinqiao Company's litigation claim was groundless and did not comply with the provisions of Article 69 of the Administrative Litigation Law of the People's Republic of China. Requests: 1. Revoke the first-instance judgment and change the judgment to support all the appellant's claims in the first instance; 2. The litigation costs of this case shall be borne by the Appellee's Real Estate Registration Center.
The Appellee's Real Estate Registration Center argued that although Jinqiao Company had obtained the land use right involved in the case by paying debts in kind in accordance with the court's enforcement ruling and the Notice of Assistance in Enforcement, it did not submit the relevant tax payment vouchers when applying to the Real Estate Registration Center for land transfer registration, and it was not improper for the Real Estate Registration Center not to handle the transfer registration according to the Detailed Rules for the Implementation of the Provisional Regulations on Real Estate Registration.
The third party of the original trial, XX Organization B, stated that the facts found in the first-instance judgment were clear and the law was correctly applied, and requested that the appeal be rejected and the original judgment upheld.
During the second-instance trial, the appellant submitted evidence 1 "Explanation of the Situation" and "Opinion on the Handling of Letter-or-Visit Matters" to this court, intending to prove that the third party of the first instance promised to require it to perform its obligations to declare and pay the taxes involved in Qinghai New West Real Estate Development Co., Ltd. in accordance with the law, so that the appellant could go through the real estate registration formalities; Exhibit 2: "Lawyer's Letter", which is intended to prove that the appellant raised objections to the "Opinion on the Handling of Letters and Visits" issued by the Real Estate Registration Center.
After cross-examination, the Appellee and the third party of the original trial did not accept the above evidence. This court held that the above-mentioned evidence could not achieve the appellant's purpose of proof, and did not comply with the provisions of the Administrative Litigation Law of the People's Republic of China and relevant judicial interpretations on new evidence, and was not admissible.
The facts ascertained by this court through trial are consistent with the facts ascertained in the first-instance judgment, and this court affirms them.
This court held that the appellant's claim was to require the Appellee's immovable property registration center to perform the duty of transfer registration, and the immovable property registration center held that Jinqiao Company did not meet the legal conditions for handling the registration of the transfer of the right to use state-owned construction land, and issued a reply letter of non-transfer registration, so the focus of the review of this case was whether the reply letter of non-transfer registration issued by the immovable property registration center against Jinqiao Company complied with the law and whether the appellant's grounds for appeal were valid. The specific analysis is as follows:
1. On the issue of whether the registration involved in the case can unilaterally apply for the transfer of registration. In this regard, the Appellee did not raise any objection to the Appellant's assertion that it could unilaterally apply for transfer of registration on the basis of the effective ruling of the people's court, and this court affirmed it.
2. On the issue of the Appellant's claim that there is no legal basis for the Appellee's decision not to transfer the registration by applying the partially repealed law. The Appellant's claim that the Appellee's non-transfer registration document was the "Reply Letter on the Application for Registration of Immovable Property Transfer by XX Company" (Ning Real Estate Letter (2023) No. 107) made by the Appellee to the Appellant on July 15, 2023. After review, the Notice of the State Administration of Taxation and the State Land Administration on Several Issues Concerning the Collection and Administration of Land Appreciation Tax (Guo Shui Fa (1996) No. 4), the Detailed Rules for the Implementation of the Interim Regulations on the Registration of Immovable Property and the Operational Specifications for the Registration of Immovable Property cited in the above-mentioned reply letter have not become invalid. Although the Appellee's defense opinion of the first instance involved the Provisional Regulations of the People's Republic of China on Deed Tax and the Provisional Regulations of the People's Republic of China on Stamp Duty, the Appellee did not cite the above provisions in the reply letter for non-transfer of registration, so the Appellant's grounds for appeal could not be sustained.
3. Whether the reply letter made by the Appellee not to handle the transfer registration is in accordance with the law. According to Article 27 of the Detailed Rules for the Implementation of the Provisional Regulations on the Registration of Immovable Property, the appellant has the right to apply to the immovable property registration authority for transfer registration with the effective legal documents of the people's court, but it shall still submit to the immovable property registration authority the tax payment or payment vouchers required by laws and administrative regulations for the transfer registration in accordance with Articles 15 and 38 of the Detailed Rules for the Implementation of the Provisional Regulations on the Registration of Immovable Property. Although the Appellant had paid the deed tax and obtained the deed tax payment certificate issued by the tax authorities, according to the Notice of the State Administration of Taxation and the State Land Administration on Several Issues Concerning the Collection and Administration of Land Appreciation Tax (Guo Shui Fa (1996) No. 4), the Appellant should also provide the land appreciation tax payment certificate of Qinghai New West Real Estate Development Co., Ltd. to the immovable property registration authority when handling the transfer registration. However, judging from the facts ascertained in this case, the Appellant did not submit the LAT payment certificate of Qinghai New West Real Estate Development Co., Ltd., so the reply letter of non-transfer registration issued by the Appellee to it was in accordance with the law.
In summary, the first-instance judgment should be upheld because the facts found in the first-instance judgment are clear and the law is correctly applied; The appellant's appeal has no factual and legal basis and should be dismissed. In accordance with the provisions of Article 89, Paragraph 1, Item 1 of the "Administrative Litigation Law of the People's Republic of China", the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
The case acceptance fee of 50 yuan shall be borne by the appellant's company.
This judgment is final.
Presiding Judge Jin Aiping
Adjudicator Ding Xiaoxi
Judge Zhou Xiaowu
April 28, 2024
Judge's assistant Zhang Anhuai
Clerk Yan Ling
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