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Chapter 331 Disputes over Illegal Construction Sales Contracts (9)

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    ?

    Don't be two idiot lawyers, Qin Han prayed in his heart.

    Qin Han said: "The court debate will begin next, and the plaintiff will speak first."

    Wu You nodded slightly to Li Yike, indicating that Li Yike would speak.

    After more than a year of court trials, Li Yike is no longer the straight man of science and engineering who was silent and poor in language.

    He has long been able to express his views boldly and fluently and accurately. In other words, Li Yike is already a qualified or even excellent lawyer.

    Li Yike said: "In this case, the contract signed between the plaintiff and the defendant is established and effective. The defendant's agent has always emphasized that the contract is invalid because the defendant's agent confuses the act of creditor's right with the act of property right, and has not clarified the mandatory nature of the contract.  The effect of legal norms on the validity of contracts.¡±

    Yuan Wu This little lawyer is really boastful.

    Li Yike went on to say: "The most basic premise of this case is the establishment of the principle of distinction between obligatory rights and real rights. Although China has not clearly established the establishment of two legislative structures for obligatory and property rights in the law, the "Property Law" and the "Supreme People's Court on the trial of sales contracts  The Interpretation on the Application of Law in Dispute Cases has made corresponding provisions. Article 15 of the "Property Law" stipulates that when the parties conclude a contract related to the establishment, modification, transfer and elimination of real property rights, unless otherwise stipulated by law or contract  Unless otherwise agreed, it will take effect when the contract is established; if the registration of property rights has not been completed, the validity of the contract will not be affected. The "contract" in this legal provision is obviously the cause of the change of real property rights, that is, the contract of creditor's rights;  Real rights registration", on the premise that the property rights in our country adopt the principle of publicity and effectiveness, it is obvious that the real rights have not changed. In addition, Article 3 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Sales Contract Dispute Cases: The parties  If one party claims that the contract is invalid on the grounds that the seller has no ownership or right to dispose of the subject matter at the time of signing the contract, the people's court will not support it. The seller cannot transfer the ownership of the subject matter because he has not obtained the ownership or right to dispose of the subject matter. The buyer requires the seller  People¡¯s courts should support those who bear the responsibility for breach of contract or request to terminate the contract and claim compensation for damages. This judicial interpretation also reflects the legislative principle of dividing debt into property.¡±

    Li Yike said: "Based on the clear provisions of the above two laws and judicial interpretations, the contract in dispute in this case is the expression of the plaintiff's true intention, so it should be a valid contract.  , is an act of real rights, and has nothing to do with whether the creditor's rights contract is effective. The defendant's agent cited the provisions of Article 52, Items 4 and 5 of the Contract Law, and believed that the contract in dispute "damaged the public interest" and "violated the prohibition of laws and regulations."  First, the creditor's rights in the illegal construction sales contract itself did not violate the mandatory provisions of effectiveness. The defendant's agent believed that the contract violated the mandatory provisions of laws and regulations, mainly because the subject matter of the contract violated the law.  However, Article 52 of the "Contract Law" determines that a contract is invalid based on whether the legal effect produced by the contract violates the mandatory provisions of laws and administrative regulations and whether it damages the public interest, rather than the subject matter of the contract itself.  Standards. For example, sales contracts for the sale of guns and ammunition, illegal drugs, and narcotics are naturally invalid, because such contracts damage the fundamental public interests of society. But the contract in dispute in this case is not the case, although the subject matter of the illegal construction sales contract  The construction of the building is illegal, but the legal effect that the counterparty of the contract intends to achieve by signing the sales contract is to transfer the corresponding rights of the illegal building. This does not violate the mandatory provisions of laws and regulations, nor does it harm the public interest.  The willingness of the parties to transfer the corresponding rights cannot be denied. Moreover, the recognition of the validity of the creditor's rights of illegal construction transactions does not prevent administrative agencies from imposing administrative penalties on illegal construction builders; and the risks brought about by illegal construction transactions should also be  It shall be borne by the counterparty of the contract. Judging from the law and actual operation, Article 38, item 6 of the "Urban Real Estate Management Law" stipulates that real estate that has not been registered and obtained a certificate of ownership in accordance with the law shall not be transferred, which is not a mandatory norm of effectiveness. "Urban Real Estate Management Law"  The Real Estate Management Law was revised in August 2009, but Article 38 remained unchanged, which is the same as the old Urban Real Estate Management Law that came into effect in January 1995, except that the order of the articles has changed (before the revision was the first  Article 37). Articles 18 and 19 of the Interpretation of the Supreme People¡¯s Court on Several Issues Concerning the Application of Law in the Trial of Cases of Disputes over Commercial Real Estate Sales Contracts issued in 2003 (Fa Shi [2003] No. 7) clarified that due to the reasons of the seller,  In the case of a house sales contract that prevents the buyer from obtaining the house ownership certificate, the seller should bear the liability for breach of contract. Obviously, according to the spirit of the judicial interpretation, the sales contract at this time should be a valid contract;  The enterprise is the seller, and the subject matter is a sales contract of a new commercial house that has not yet been completed or has been completed.?Contracts should be applicable by analogy.  The above argument is also dialectically unified with the provisions of Article 15 of the Property Law.  Therefore, from the spirit of the above-mentioned judicial interpretation, it can be deduced that Article 38, Paragraph 6 of the Real Estate Management Law should be a management mandatory norm:  The sales contract is void.  Secondly, the legislative purpose of this article is to prevent real estate with unclear ownership from entering the real estate transaction market and weaken the state¡¯s supervision of the real estate market; violation of this provision will damage the civil rights and interests of the buyer, and will not directly damage the state and  For social and public interests, the contract shall be confirmed as valid provided that there are no other reasons for the invalidity of the contract.  "

    Li Yike went on to say: "Similarly, the burden (creditor's rights) of the illegal construction sales contract did not harm the national interest or the public interest." The Supreme People's Court issued on July 7, 2009  Article 16 of the "Guiding Opinions on Issues" states: When applying mandatory provisions to judge the validity of a contract, the people's court should comprehensively consider the intent of laws and regulations and weigh conflicting rights and interests. From the perspective of interest measurement, the subject matter is illegal or has not  The burden (creditor's rights) behavior of registration of rights will only harm the interests of the counterparty, and will not harm the interests of others or the public interest. Article 52, item 4 of the "Contract Law" cannot be applied to deny the validity of the contract. Illegal construction is illegal construction  The products of the behavior are different from the objects prohibited by the law. The transfer of the objects prohibited by the law, such as drugs, guns and ammunition, will undoubtedly bring huge damage to the interests of the country and society; in the final analysis, the circulation of illegal buildings is only the circulation of rights  , will not cause more harm to the social public interest than its existence; therefore, the creditor's rights contract itself with the illegal construction as the subject matter does not harm the national interest or the social public interest, and there is no possibility of increasing the damage to the interests of both. Illegal  There are profound social reasons for the generation and circulation of buildings. The construction and sale of illegal buildings can solve the housing problems of many low- and middle-income groups and increase their family income to a certain extent, and maintain social stability to a certain extent; allow the circulation of illegal buildings  To a certain extent, it embodies the principle of making the best use of everything and stimulates the vitality of the market.¡± (Remember the website website: www.hlnovel.com
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