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Chapter 324 Disputes over Illegal Construction Sales Contracts (2)

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    ?

    Lin Tan strongly disagreed, and confidently said that according to Article 52 of the Contract Law: Under any of the following circumstances, the contract is invalid.

    (1) One party concludes the contract by means of fraud or coercion, which damages the interests of the state;

    (2) Maliciously colluding to damage the interests of the state, collective or third party;

    (3) Cover up illegal purposes in a legal form;

    (4) Damage to social public interests;

    (5) Violating mandatory provisions of laws and administrative regulations.

    Lin Tan believes that the subject matter of the housing sales contract signed by Peng Cheng and himself violates the provisions of mandatory laws and regulations, and the provisions of Article 52 and Subparagraph 5 of the "Contract Law" should be applied, and the contract is invalid.

    Invalid contract is invalid from the beginning. Once the contract is confirmed to be invalid, it will have retroactive effect, that is, it will not be legally binding since the contract is formed, and it cannot be converted into a valid contract in the future.

    Article 58 of the "Contract Law" stipulates: "After a contract is invalidated or revoked, the property acquired due to the contract shall be returned; if it cannot be returned or it is unnecessary to return, it shall be compensated at a discounted price. The party at fault shall compensate the other party for the  If both parties are at fault for the losses suffered, they should each bear corresponding responsibilities.¡±

    Lin Tan believes that the contract has not yet been fulfilled, and neither party has any losses, so they are not liable for compensation.

    Lin Tan not only did not agree to pay Peng Cheng liquidated damages, but also asked Peng Cheng to return the 100,000 yuan deposit to himself without interest.

    Peng Cheng naturally disagreed. In a fit of anger, he was introduced to Wu You and wanted to sue Lin Tan.

    This type of case is controversial in both theoretical and practical circles. Wu You dragged Lin Ziyao and Li Yike to discuss it together.

    Lin Ziyao likes this kind of brainstorming the most. She has done a lot of homework before.

    Lin Ziyao said: "In this case, the focus of the dispute is whether the contract whose subject matter is an illegal building is valid. I checked the information, and in judicial practice, there are diametrically opposite precedents on the determination of the validity of an illegal building sales contract."

    Both Wu You and Li Yike looked at Lin Ziyao attentively, waiting for Lin Ziyao to continue.

    Lin Ziyao said: "Chengdu City Court judged a similar case. The plaintiff bought a house built by the defendant himself and paid 771,680 yuan for the house. However, the plaintiff later found out that the house sold by the defendant did not have any approval procedures and was an illegal building.  The plaintiff believes that the defendant knowingly sold the house to the plaintiff without any approval procedures, and has not gone through any approval procedures so far, which is an illegal building. Therefore, the court requested the court to confirm the "self-built house" signed by the plaintiff and the defendant.  The purchase and sales contract is invalid. After the trial, the court held that the construction of the disputed house had not gone through planning and other procedures, and the contract signed between the plaintiff and the defendant used it as the subject matter, and the content of the contract violated the "Contract Law of the People's Republic of China".  Article 1(4)(5) stipulates that the contract signed by the plaintiff and the defendant should be an invalid contract. The second case is just the opposite, and it is a case published in the Supreme Court Gazette. The plaintiff and the defendant signed  The house sales contract stipulated that the defendant would sell the house in dispute to the plaintiff, but because the house in dispute was attached with illegal buildings, the real estate trading center would not handle the transfer registration. The plaintiff believed that the house sale contract signed by the plaintiff and the defendant was legal and valid, so the lawsuit  went to the court and asked the defendant to demolish the illegal building, restore the original state of the disputed house and handle the transfer of ownership. The defendant Shi Lei argued that the disputed house was an illegal building, and filed a counterclaim request to confirm that the house sale contract was invalid. After the trial, the court held that: the housing administrative department  Houses that have been rebuilt or rebuilt upon approval may be identified as houses with illegal structures and transactions restricted due to the inconsistency between the actual situation and the status of rights recorded in the real estate register. There are differences in practice on how to determine the validity of such house sales contracts  According to the principle of publicity and credibility of real estate registration, the bona fide buyer is convinced that the registered rights are consistent with the actual state, and this trust interest should be protected;  It should affect the validity of the contract. Therefore, if such a contract does not have the invalidity of Article 52 of the "Contract Law", it should be deemed valid. The seller has the obligation to restore the house to the original registered right status and eliminate administrative restrictions.  "

    Li Yike nodded slightly, and said: "It seems that the second case is more similar to Peng Cheng Lintan's case, both of which are legal buildings with illegal buildings attached. If this case is cited, the probability of Peng Cheng's case winning is high.  gone."

    Wu You nodded slightly. He looked at Li Yike and asked, "How many opinions do the theoretical circles have on the nature of illegal construction sales contracts?"

    This is Li Yike's homework test.

    Li Yike came prepared, and immediately responded fluently: "Similar to the situation in the judiciary that the same case has different judgments on illegal construction sales contract disputes, in the academic circleThere are four mainstream theories on the validity of construction sales contracts.

    (1) The contract is invalid

    The main reasons for this statement are as follows: First, the emergence and existence of illegal buildings are contrary to the public interest. According to the provisions of Article 52, Item 4 of the Contract Law, illegal building sales contracts are also denied.  evaluation of.  Second, both the production of illegal buildings and the transfer of illegal buildings violated the prohibitive provisions of relevant laws and regulations. According to the provisions of item 5 of Article 52 of the Contract Law, the contract should be invalid.

    (2) Effectiveness to be determined

    It should be said that an illegal building sales contract is a contract whose effectiveness is pending, and the effectiveness of the contract depends on whether the illegal building can be transformed into a legal building after going through the relevant approval procedures.  As long as after the contract is signed, the builder of the illegal building obtains the corresponding construction administrative license, and the illegal building is corrected to be a legal building, the contract is a valid contract.  Conversely, if the illegal building cannot be corrected to be a legal building later, the contract is null and void.

    There is another view that illegal construction sales contracts should be divided into burden (obligation) behavior and disposition (real right) behavior according to the principle of distinction. The burden (creditor's right) behavior meets the constituent elements of a valid contract in the "Contract Law" and is valid.  Since illegal buildings cannot go through real estate registration procedures, the disposition (property rights) act is for the effect of the pending contract; the effectiveness of the disposition (real rights) behavior also depends on whether the illegal buildings can be corrected into legal buildings, so as to register the real estate ownership transfer.

    (3) The contract is valid

    It should be said that the illegality of the subject matter does not necessarily lead to the illegality of legal acts (buying and selling).  The illegality of a legal act means that the act harms national interests, social public interests and other rights; the production of illegal buildings violates statutory procedures or statutory methods or other legal prohibitions, but it does not necessarily lead to social public  damage to interests; the illegality of the legal act and the illegality of the subject matter are two completely different concepts.  In the case where the contract stipulated in Article 52 is invalid, it is a valid contract.  "(Remember this site URL: www.hlnovel.com
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