First Civil Division of the Supreme People's Court: Selected Views on the Adjudication of Civil and Commercial Cases (No. 14)

The First Civil Division of the Supreme People's Court: Selected Views on the Adjudication of Civil and Commercial Cases (Volume 13)

First Civil Division of the Supreme People's Court

Selected Views on the Adjudication of Civil and Commercial Cases

Volume 14

217. How to interpret the provisions on punitive damages in Article 8 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 the Sale and Purchase of Commercial Housing, and whether the breaching party should also bear punitive damages if it bears the loss of obtainable benefits provided for in Article 113 of the Contract Law

【Viewpoint Analysis】:

According to the background and purpose of Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts, the punitive damages system stipulated therein is mainly aimed at the behavior of real estate developers selling a house in a relatively short period of time when the house price rises too fast and the increase is large, and the "loss" stipulated in this article does not include compensation for the loss of available benefits, and generally should not be applied at the same time as the compensation for available benefits provided for in Article 113, Paragraph 1 of the Contract Law of the People's Republic of China.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 61

218. Whether land use rights obtained by way of allocation, land use rights and above-ground things can be transferred without approval

【Legal Issues】:

The issue arises from the following case: In December 1998, the plaintiff obtained the land use right of more than 70,000 square meters by way of allocation for the new passenger terminal project. In September 1999, the plaintiff and the defendant signed a real estate sales contract, and the plaintiff transferred the right to use the above-mentioned land and the house on the ground to the defendant for a total price of more than 3.4 million yuan. After paying more than 3.103 million yuan in accordance with the contract, the defendant applied to the Land Bureau for the transfer of land, signed a land use right transfer contract with the Land Bureau, paid the land transfer fee and related fees, and obtained the ownership certificate of the house on the land. Because the plaintiff still owed 270,000 yuan and failed to pay it, the defendant refused to pay the land transfer fee of more than 130,000 yuan that it had paid, so the plaintiff sued the defendant to pay the arrears of 270,000 yuan. During the trial, the defendant stated that in addition to calculating the land transfer fee, the plaintiff was also required to issue a VAT invoice for the transaction amount.

The question raised is: Can the land and above-ground objects of the state-owned land use rights obtained by way of allocation be transferred without examination and approval, and what is the validity of the transfer contract? After the transfer, the transferee of the land has signed a contract for the transfer of state-owned land use rights with the land management department, can the validity of the land transfer contract be corrected, and who should bear the land transfer fee?

[Opinion of the First Civil Division of the Supreme People's Court]:

The First Civil Division of the Supreme People's Court held that the use right of state-owned land obtained by way of allocation shall not be transferred without the approval of the land management department of the people's government of the city or county; If a contract of assignment has been concluded, the contract shall be null and void. According to the principle of supplementation and correction of the validity of the contract, the competent government department shall retrospectively approve and approve, and the transferor of the allocated land use right shall sign a contract for the transfer of state-owned land use rights with the competent government department and pay the land transfer fee, or the transferee of the allocated land use right shall sign a contract for the transfer of state-owned land use rights with the competent government department and pay the land transfer fee, or after the transfer contract is signed, the competent government department shall directly allocate the transferred land to the transferee for use, and the transfer contract concluded between the parties shall be deemed valid. However, the approval of the competent government department and the re-application of the formalities must be carried out before the first-instance prosecution.

[Source of opinion]: Frontiers of China's Civil Trials compiled by the Supreme People's Court

219. If the party with the obligation to perform first fails to perform its contractual obligations, the other party obtains the right to defend the first performance and has the right to require the other party to perform all its contractual obligations

【Viewpoint Analysis】:

The contract in force must be strictly adhered to. If the contractual obligations are performed in a sequential manner, and the party that performs first neglects to perform and causes difficulties for the party that performs later to perform the contract, the party that performs later obtains the right to defend the performance of the contract first and has the right to require the other party to perform all its contractual obligations.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 60

220. In a case where a creditor seeks debts from the deceased during his lifetime, if the legal heir expressly renounces the inheritance, how should the court make a judgment?

【Viewpoint Analysis】:

Articles 32 and 33 of the Inheritance Law of the People's Republic of China stipulate: "An inheritance that is not inherited and bequeathed by no one shall be owned by the State; If the deceased was a member of a collective ownership organization during his lifetime, it is owned by the collective ownership organization. The inheritance shall pay off the taxes and debts that the decedent shall pay in accordance with the law, and the payment of taxes and debts shall be limited to the actual value of his estate. The part exceeding the actual value of the estate shall not be subject to voluntary repayment by the heirs." Article 46 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation <中华人民共和国继承法>of the Law stipulates that "if an heir is unable to perform his statutory obligations due to the renunciation of his right of inheritance, the act of renunciation of his right of inheritance shall be invalid". If the people's court allows the heir to renounce the inheritance, there will be no qualified defendant, and the creditor cannot dispose of the inheritance without authorization, resulting in the creditor being unable to claim rights, and the heir often actually takes possession of the inheritance and "reaps the profits" without paying off the debts of the deceased. In order to protect the lawful rights and interests of creditors, the people's court shall find that the renunciation of inheritance is invalid, notify the heirs to participate in the litigation, and make a judgment that the heirs shall pay off the debts within the limit of the actual property value of the decedent.

[Source]: Q&A on Civil Trial Practice compiled by the First Division of the Civil Trial Division of the Supreme People's Court, Law Press, May 2021.

221. If the project quality standards agreed between the employer and the contractor in the bidding documents are qualified, and the employer and the winning bidder agree separately after the project wins the bid, if the project does not win the "Luban Prize", the performance bond will not be refunded, is the agreement valid?

【Viewpoint Analysis】:

This agreement has constituted a change to the substantive content of the winning contract and shall be invalid. According to the first paragraph of Article 788 of the Civil Code, "a construction project contract is a contract in which the contractor carries out the construction of the project and the employer pays the price. "The contractor has the obligation to complete the construction task on time and with good quality, and has the right to receive the project price as agreed in the contract; The employer has the right to receive the construction project products that meet the agreed quality standards as agreed in the contract, and has the obligation to pay the project price as agreed in the contract. It can be seen that in the case of a construction contract, the substantive content of the contract generally includes the project price, the quality of the project, the duration of the project, etc.

"Luban Award" is the highest quality award in the construction industry nationwide, and in terms of legal nature, the standards attached to this award do not belong to the national mandatory standards, but the standards encouraged by the industry. In the case that the bidding and bidding contract has been agreed to be the project qualification standard, the employer and the contractor have separately agreed that they must get the "Luban Award", otherwise the performance bond will be deducted, and the obligations given by such a commitment to the contractor are already higher than the obligations stipulated in the bidding and bidding contract, and in fact the project quality standards agreed in the bidding and bidding documents have been changed.

According to the first paragraph of Article 46 of the Tendering and Bidding Law, "the tenderer and the winning bidder shall, within 30 days from the date of issuance of the notice of winning the bid, enter into a written contract in accordance with the bidding documents and the bidding documents of the winning bidder." The bidder and the winning bidder shall not enter into other agreements that deviate from the substantive content of the contract", and the above agreement shall be deemed invalid.

[Source]: Q&A on Civil Trial Practice compiled by the First Division of the Civil Trial Division of the Supreme People's Court, Law Press, May 2021.

222. Whether the failure to complete the registration procedures for the change of housing ownership can constitute bona fide acquisition

Q: I have purchased someone's house in good faith, the price is reasonable, and I already have possession of the house, can I take ownership of the house based on Article 311 of the Civil Code?

【Viewpoint Analysis】:

The question you are asking is often asked in the current trial practice, that is, although the registration procedures for the change of ownership of the immovable property have not been completed, but the immovable property has been taken possession, whether the ownership of the immovable property can be obtained based on the bona fide acquisition system. Article 311 of the Civil Code stipulates that "if the person without the right of disposition transfers the immovable property or movable property to the transferee, the owner has the right to recover it; Except as otherwise provided by law, the transferee acquires ownership of the immovable or movable property under the following circumstances: (1) the transferee is bona fide when the transferee transfers the immovable or movable property; (2) transfer at a reasonable price; (3) The transferred immovable or movable property shall be registered in accordance with the provisions of law, and the transfer shall be delivered to the transferee if it is not required to be registered. Where the transferee obtains the ownership of immovable or movable property in accordance with the provisions of the preceding paragraph, the original owner has the right to claim damages from the person without the right of disposition. Where the parties acquire other real rights in good faith, the provisions of the preceding two paragraphs shall apply by reference. All three of these conditions are indispensable. Paragraph 1 of Article 209 of the Civil Code stipulates that "the creation, alteration, transfer and extinction of immovable property rights shall take effect upon registration in accordance with law; Without registration, it shall not take effect, unless otherwise provided by law", and the house is immovable property, and you acquire someone's house in good faith, which must meet the conditions stipulated in Article 311 of the Civil Code: "The transferred immovable or movable property shall be registered in accordance with the law". Therefore, although you have acquired someone's house in good faith, the price is reasonable, and you have taken possession of the house, you cannot acquire the ownership of the house in accordance with Article 311 of the Civil Code because the house you have transferred has not completed the registration procedures for the change of ownership of the immovable property.

[Source]: Q&A on Civil Trial Practice compiled by the First Division of the Civil Trial Division of the Supreme People's Court, Law Press, May 2021.

223. Where the parties have different claims on the legal relationship between them, the rights and obligations between the parties shall be determined based on the analysis of the content of the contract between the parties and the actual performance of the contract, and their respective civil liabilities shall be determined.

【Viewpoint Analysis】:

One party claims that the other party shall bear the liability for compensation on the ground that there is a cooperative real estate development relationship between the two parties, and the other party argues that the two parties have an intermediary contractual relationship and should not be liable for compensation. The people's courts shall strictly follow the content of the contract between the parties and the actual circumstances of the parties' performance of the contract, to determine the relationship of rights and obligations between the parties in accordance with law, and determine their respective civil liabilities.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 53

224. How to determine whether the will retains the necessary share of the inheritance for the heirs who lack the ability to work and have no social sources

[Opinion of the First Civil Division of the Supreme People's Court]:

To determine whether the will made by the testator violates the provisions of Article 19 of the Inheritance Law, and is a failure to reserve the necessary share of the estate for the heirs who lack the ability to work and have no source of livelihood, the substance of the will should be analyzed. When the main testator disposes of the estate, he has made special arrangements for the future life of the heirs who lack the ability to work and have no source of livelihood, and even if they do not formally designate their inheritance, it should not be determined that the testator has not retained the share of the estate of the heirs who lack the ability to work and have no source of livelihood.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 54

225. Whether the transferee of the debt in kind can exclude the enforcement of monetary claims

【Viewpoint Analysis】:

The purpose of a debt in rem agreement is to extinguish the monetary debt existing between the parties to the agreement, and the delivery of immovable property is only a way of performance of the debt in rem. Generally speaking, the parties have not reached an agreement to buy or sell immovable property, and therefore have not transformed from a monetary creditor-debt relationship into a legal relationship for the purpose of buying and selling immovable property. Therefore, according to the principle of equality of debts, the "buyer" who intends to transfer the immovable property on the basis of the payment of debts in rem cannot preclude the enforcement of the immovable property on the basis of the agreement alone to form an interest in priority over the general creditor's rights before the registration of the transfer of ownership of the immovable property is completed.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 78

226. Research on the relationship between non-litigation procedures and litigation procedures for realizing security interests

【Viewpoint Analysis】:

Article 196 of the Civil Procedure Law provides for the application for realization of a security interest, which is a non-litigation procedure. The ruling made by the people's court to allow the sale of the secured property by auction is a permissive ruling made by the state power organ and has the force of legal enforcement, which blocks the opportunity for the parties to dispute again through other civil litigation procedures, and makes both the applicant and the respondent lose the corresponding right to sue. Therefore, if the people's court makes a ruling to allow the auction or sale of the property held in the general procedure for realizing the security interest, and the parties file a lawsuit with the people's court for a dispute over the security interest in respect of the same legal relationship of security, the people's court shall not accept it. However, if the auction or sale of the collateral through the non-litigation procedure for realizing the security interest is still insufficient to pay off all the principal claims, the creditor may claim its rights in respect of the unrealized claims through litigation procedures.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 75

227. The distinction between the contractual obligations stipulated in the contract signed between the parties and the conditions attached to the civil juristic acts.

【Viewpoint Analysis】:

Paragraph 1 of Article 45 of the Contract Law stipulates that: "The parties may agree on conditions for the validity of the contract. A contract with conditions for entry into force shall take effect when the conditions are fulfilled. A contract with a condition of termination shall expire when the condition is fulfilled. It can be seen that the so-called conditions in law refer to the uncertain facts that determine the effectiveness of civil legal relations. The contractual obligations to be performed by one of the parties as agreed in the contract by the parties are determined. There is a difference between the obligations of the parties stipulated in a contract and the conditions attached to civil juristic acts, and they cannot be recognized as conditions attached to civil juristic acts.

[Source of opinion]: The First Division of Civil Trial of the Supreme People's Court, "Civil Trial Guidance and Reference", Vol. 53

Transferred from the same judgment rule for similar cases