Promoting the same sentence for similar cases in the Supreme People's Court has become an important work content and means to enhance judicial credibility and realize the unification of legal application.

In the past five years, the number of disputes over housing sales contracts in China has surged. Although affected by the epidemic situation and other factors, it will be reduced in 2020, but disputes over housing sales contracts are still an important source of cases for lawyers.

In the "Outline of the 14th Five-Year Plan" just issued, the general principles of metropolitan area construction, urban renewal, modern community construction, urban-rural integration development and "no real estate speculation" will bring new opportunities and development to the real estate industry, and at the same time, there will be more disputes over new housing sales contracts.

In this context, it is one of the important methods for lawyers to formulate litigation strategies and predict the judgment results by extracting the judgment rules of similar cases from disputes over housing sales contracts under the judicial environment of promoting the same judgment of similar cases.

Among the disputes over housing sales contracts, there are 5 1.220 cases related to "contract effectiveness", which increased from only 465 cases in 20 12 years to more than 10,000 cases in 20 19 years, with a rapid growth.

Today, from the similar case base of housing sales contract disputes, five arbitration rules related to the validity of the contract are summarized and shared with readers.

Rule one

Rule 1: In order to obtain a bank loan, a false house sales contract is concluded, and both parties have no real intention to buy or sell the house, so the contract shall be deemed invalid.

Rule description:

If both parties sign a false house sales contract and obtain a bank loan, the house sales contract shall be deemed invalid.

1. After the two parties signed the house purchase and sales contract, the seller has been holding and keeping the original house title certificate, transfer invoices, receipts and other related documents, and has been occupying and using the sold house. It is advocated that both parties take bank loans for the false house purchase contract, but the buyer can't reasonably explain and prove the above situation, and can't prove the payment of the house except the bank loan. It should be considered that the housing sales contract between the two parties is not its true intention and should be invalid.

Second, the expression of true will is one of the basic conditions that a civil juristic act should have. If the two parties have no real intention to buy or sell the subject matter, but collude with each other to sign a false sales contract for other purposes such as obtaining commercial loans and housing provident fund loans, the contract shall be deemed invalid.

Third, real estate development enterprises, with the purpose of escaping the state's control over the real estate industry, signed false commercial housing sales contracts with themselves in the name of others to mortgage bank credit funds. The buyer of the commercial house knows that the contract is not the true intention of both parties, and this situation is in line with the provisions of Item 3 of Article 52 of the original Contract Law (now Article 154 of the Civil Code), so the contract shall be deemed invalid.

Reference example:

1. Shao and Guo's dispute over the house sales contract.

CaseNo. (20 1 1) Hu Yi Zhong Min Er (Min) Zi No.845.

2. Yuan Jia and Shi Moumou's second-instance civil judgment on the dispute over the sales contract.

The case number is (20 13). 1387

Rule 2

Article 2 A house sales contract signed without obtaining the house ownership certificate shall be regarded as a valid contract. If the seller fails to fulfill the delivery obligations stipulated in the contract, he shall be liable for breach of contract to the buyer.

Rule description:

Article 3 of the original Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Disputes over Sales Contracts stipulates: "When concluding a contract, a party claims that the contract is invalid on the grounds that the seller has no ownership or disposition right to the subject matter, and the people's court will not support it. If the ownership of the subject matter cannot be transferred because the seller has not obtained the ownership or disposal right, and the buyer requests the seller to bear the liability for breach of contract or terminate the contract and claim damages, the people's court shall support it. " (It has been incorporated into Article 3 1 1 of the Civil Code)

Therefore, the house sales contract signed without obtaining the house ownership certificate should be recognized as a valid contract. If the seller fails to perform the delivery obligation in the contract, it shall bear the liability for breach of contract to the buyer, that is, whether the seller has the right to dispose of the subject matter of the sales contract does not affect the validity of the sales contract.

The Intermediate People's Court of Tongchuan City, Shaanxi Province held that the focus of the dispute in this case was whether the house purchase and sale agreement signed by both parties was invalid because it violated the provision of Item 6 of Article 38 of the Urban Real Estate Management Law that "the real estate that has not been registered and obtained the ownership certificate according to law shall not be transferred".

First of all, can this provision be considered as a "mandatory provision" stipulated in Article 52 of the Contract Law (Articles 144, 146, 153 and 154 of the Civil Code)?

According to Article 16 of the Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Civil and Commercial Contract Disputes under the Current Situation, mandatory provisions are divided into effective mandatory provisions and administrative mandatory provisions. Only a contract signed in violation of the mandatory provisions of the nature of validity can be considered as invalid. This case involves the sixth item of Article 38 of the Urban Real Estate Management Law, which stipulates that "the real estate that has not been registered according to law and obtained the ownership certificate shall not be transferred", which is a mandatory provision of management nature, not a mandatory provision of effectiveness.

Secondly, the legislative purpose of Item 6 of Article 38 of the Urban Real Estate Management Law is to standardize the transaction order in the real estate market, ensure the transaction safety and ensure the government's tax collection and management. This is an administrative supervision measure of the real estate management department on the transfer of urban real estate, rather than a prohibitive provision for the conclusion of a sales contract that sets the obligation of ownership transfer. Therefore, the transfer of real estate in violation of the provisions of this law may only lead to defects in the performance of the sales contract, that is, it is inconvenient to handle the house ownership certificate and the land use right certificate, which has nothing to do with the validity of this contract. Therefore, on the grounds that the house purchase and sale agreement violates this provision, the retrial applicant applies for finding that the house purchase and sale agreement involved is invalid, which has no legal basis and will not be supported.

Rule 3

Rule 3: One party claims that the contract is invalid only because the house seller has no ownership or disposition right, and the contract does not have the provisions of Article 52 of the original Contract Law (now People's Republic of China (PRC) Contract Law).

The court does not support the invalid cases stipulated in Articles 144, 146, 153 and 154 of the Code. If the transferee meets the conditions of bona fide acquisition in Article 106 of the original Property Law (now Article 3 1 1 of the Civil Code), he will acquire the ownership of the house.

Rule description:

If one of the parties claims that the contract is invalid only because the house seller has no ownership or disposal right to the house, and the contract does not have the invalidity stipulated in Article 52 of the original contract law (Articles 144, 146, 153 and 154 of the current Civil Code), the court will not support it. If the seller obtains the right of disposition after the signing of the contract, or the obligee ratifies it, the buyer may obtain the ownership of the house according to the contract;

If the obligee refuses to ratify, the obligee may take back the house, except that the buyer obtained it in good faith. The court shall support the buyer's demand that the seller bear the liability for breach of contract because the seller has not obtained the ownership or the right to dispose of the house.

If the seller has no right to dispose of the house, the obligee can't recover the house or suffer other losses, the court should also support it.

Reference example:

1. Zhang v. Yang Moxiang and Tian (dispute over confirmation of invalid contract)

Case number: (20 18) Qiong 9006 Minchu 1448 and (20 19) Qiong 96 Minzhong 779.

Basic information:

The plaintiff, Yang Mouxiang, bought a house and the property right was registered in his name. 201265438+1On October 20th, Tian Mouwen (son of Yang Mouxiang) signed an agreement with Zhang to transfer the house involved to Zhang at the transfer price of 10000 yuan. Later, Zhang actually occupied and used the house and rented it to others. It was also found that Yang Mouxiang had four children with his lover (deceased) * * *, and Tian Mouwen was the second son. The other three children voluntarily gave up claiming any rights to the house involved. Later, Yang Mouxiang appealed to the court and asked the court to order that the house sale agreement signed by Tian Mouwen and Zhang was invalid.

Test results:

The second instance of the First Intermediate People's Court of Hainan Province held that the focus of the dispute in this case was: 1. Whether the agreement signed by Zhang and Tian is valid; Second, whether Zhang should return the house involved to Yang Mouxiang.

1. Whether the agreement signed by Zhang and Tian is valid.

First of all, according to Article 3 of the Supreme People's Court's Interpretation of the Applicable Law in the Trial of Disputes over Sales Contracts, if a party claims that the contract is invalid on the grounds that the seller has no ownership or disposition right to the subject matter at the time of conclusion, the people's court will not support it. Therefore, whether Tian Mouwen owns the ownership or disposition right of the house involved does not affect the validity of the house sales contract between him and Zhang.

Secondly, the agreement signed by Zhang and Tian did not violate Article 52 of the original Contract Law (Articles 144, 146, 153 and 154 of the current Civil Code). Tian Mouwen has been living in the house involved since 1997. As a party to the transaction, Zhang has reason to believe that Tian Mouwen has the corresponding right to dispose of the house involved. Although Zhang did not find out the property right certificate of the house and handle the transfer in time, there was some negligence, but there was no evidence that there was malicious collusion between Zhang and Tian Mouwen.

Third, Yang Mouxiang has filed a lawsuit for six years since the conclusion of the house sales contract involved, claiming that it is unreasonable not to know about Tian Mouwen's sale of the house. Therefore, the agreement signed by Zhang and Tian is valid.

Second, whether Zhang Qiong should return the houses involved to Yang Guixiang.

Civil activities should follow the principles of voluntariness, fairness, equal compensation, honesty and credibility. Zhang and Tian Mouwen signed this agreement on June 20 12, and have been living in the house involved or subletting it to others for use, which is obtained in good faith and does not violate the mandatory laws of the state. The house sales contract involved was legal and valid, and Yang Mouxiang did not raise any objection before June 20 18, nor did he provide evidence to prove that the price paid by Zhang was lower than the market price. Therefore, Yang Mouxiang's request for Zhang to return the house involved lacks factual and legal basis and does not support it.

2. Zhuo Moufu and Zhuo Mou Wei's housing sales contract dispute case.

Case number: (20 18) Chuan 1402 Minchu 4 120, (20 19) Chuan 14 Minzhong 349.

Basic information:

The plaintiff Zhuo Moufu and the defendant Zhuo Mou Wei are brothers. Zhuo and Xu Mouqing are husband and wife. The houses involved are owned by Zhuo Mou Wei and Xu Mouqing. Zhuo Moufu began to use the houses involved in the case in 2002. On June 9, 2003, the defendant Zhuo sold the house to Zhuo Moufu at a price of 2,000 yuan, and at the same time Zhuo issued a "House Sale Letter" to Zhuo Moufu, in which Xu Mouqing's signature was not written by himself. Zhuo Moufu rebuilt the house on 20 13, but has not yet gone through the transfer and change registration. 2065438+On August 28th, 2007, Zhuo Moufu sued Zhuo Mou Wei and Xu Mou to the court, requesting to confirm the ownership of the house involved.

Test results:

The Intermediate People's Court of Meishan City, Sichuan Province believes that the focus of the dispute in this case lies in whether there is a legal and effective contract relationship between the two parties for the sale of houses.

According to the facts of the case ascertained, the Book of Selling House submitted by Zhuo Moufu in the first instance was written by Zhuo himself, which can reflect the true intention of Zhuo to sell the house. Whether Xu Mouqing signed or failed to ratify it afterwards only involves whether it has an impact on the change of property rights, and does not involve the factual basis for determining that the sales contract relationship is invalid. Zhuo Mou Wei and Xu Mouqing claimed that the relationship between them was a loan relationship, but they failed to submit corresponding rebuttal evidence, and they should bear the legal consequences of failing to provide evidence. Therefore, the sales contract signed by both parties is valid.

Rule four

Rule 4: The tax avoidance clause in the house sales contract is invalid, but it does not affect the validity of other clauses in the contract. The parties shall perform their obligations in accordance with the contract.

Rule description:

In the house sales contract, in order to avoid taxes and fees, the two parties agreed on the house price that is inconsistent with the true meaning, which should be an invalid legal act and cannot be legally binding on the parties.

However, other agreements in the contract are the true intentions of the parties, and their contents do not violate the validity and prohibition of laws and administrative regulations. When a contract is established and takes effect according to law, the parties shall fully perform their obligations in accordance with the contract.

From the perspective of trial, we should not treat the terms of the house sales contract superficially, but should comprehensively review the payment amount and purchase price, the parties' understanding of major issues, and the common sense and experience of ordinary buyers to prevent malicious collusion between buyers and developers and clarify the real relationship of the house sales contract.

Reference example:

Su and Sun Mochang, etc.

Case number: (20 17) Lu 0 1 2 6085 in the early Republic of China, (20 18) Lu 01Minzhong 6584, (20 19) Lu 46.

Basic information:

The plaintiff Sun Mochang (Party B) signed the House Purchase and Sales Contract with the defendant Su (Party A) and the defendant Zhonghao Jianda Branch (the intermediary) on April 6, 2006, stipulating that the buyer and the seller should give priority to the transaction by renaming the contract, and handle the house transfer registration procedures. Among them, Article 5 of the contract stipulates that Party A shall bear the cost of canceling the online signing and Party B shall bear the cost of changing the contract for the relevant taxes and fees arising from the transfer procedures of both parties. After that, Su issued the Notice of Cancellation of House Sales Contract to Sun Mouchang on the grounds that he had not obtained the house ownership certificate. Sun Mochang denied the validity of the notice of revocation and appealed to the court.

Test results:

The Higher People's Court of Shandong Province held that in this case, Su and Sun Mochang signed a contract by changing their names to complete the transfer procedures of the houses involved, so as to evade taxes, but the tax evasion did not lead to the invalidation of the house sales contract involved, and the house sales behavior of both parties should pay the relevant taxes and fees without paying them, which belongs to the adjustment scope of administrative punishment and does not lead to the invalidation of the house sales contract involved. To sum up, the house sales contract involved is the true intention of Su, Sun Mochang and Zhonghao Jianda Branch, which does not violate the mandatory provisions of laws and administrative regulations and should be legal and effective.

Rule five

Rule 5: The master contract is invalid and the slave contract is invalid. The mortgage contract is a subsidiary contract of the loan contract, but it is not a subsidiary contract of the house sales contract. The invalidity of the sales contract does not necessarily lead to the invalidity of the mortgage contract. Commercial housing secured loan contract can be terminated; Developers and property buyers are jointly and severally liable for bank loans.

Rule description:

Regarding whether the invalidity of the house sales contract will inevitably lead to the invalidity of the house mortgage contract, according to the relevant laws and regulations, the master contract is invalid and the slave contract is invalid.

The mortgage contract is a subsidiary contract of the loan contract, not a sales contract, so only the loan contract is invalid, which leads to the invalidity of the mortgage contract (unless otherwise agreed in the contract), and the invalidity of the sales contract does not necessarily lead to the invalidity of the mortgage contract.

According to the original Article 24 (now Article 20) of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts, if the purpose of the commercial housing secured loan contract cannot be achieved because the commercial housing sales contract is confirmed invalid or revoked or dissolved, the parties' request to terminate the commercial housing secured loan contract shall be supported.

In order to obtain bank funds, developers colluded with natural persons to sign false pre-sale commercial housing sales contracts, and signed commercial housing mortgage loan contracts with banks in the name of natural persons to obtain bank loans. When the commercial housing sales contract is confirmed to be invalid according to law, the developer and the natural person shall bear joint and several liability for the bank loan.

Reference example:

1. Qiu moumou and Dong moumou (case of dispute over house sales contract)

CaseNo.: (2007) Puminsan (Min) Zi ChuNo. 1302, (2009) Huerzhong Min Er (Min) Zhong Zi No.799.

2. Zhang Moudong v. Jiangsu Dafeng Port Real Estate Co., Ltd. and Jiangsu Dafeng Rural Commercial Bank Co., Ltd. Changxin Sub-branch.

Case numbers: (20 15) Dagang Minchuzi No.00345, (20 17) Su 09 Minzhong No.391,(20 18) Su No.2033.

Basic information:

Because Zhang (the father of the plaintiff) demanded that the project payment be unpaid, he agreed with Dafenggang Real Estate Co., Ltd. to use the commercial house he developed to offset the unpaid project payment, and Zhang paid the loan to Zhang after handling the mortgage loan procedures. Later, Zhang signed the Commercial Housing Sales Contract in the name of "Zhang", and signed the Personal Housing Mortgage Loan Contract with Changxin Rural Commercial Bank and Dafenggang Real Estate Company. Subsequently, Changxin Rural Commercial Bank issued a loan of 600,000 yuan to Zhang Dongdong, and Zhang Dongdong remitted the money to the special account for selling houses of Dafeng Port Real Estate Company. Plaintiff Zhang Dongdong and defendant Dafenggang Real Estate Company brought a lawsuit to the court for a loan repayment dispute.

Test results:

The Higher People's Court of Jiangsu Province held that the commercial housing sales contract signed by Zhang Moudong and Dafenggang Real Estate Company on June 9, 2003+2065438 was the true intention of both parties and did not violate the provisions of relevant laws and regulations, so it should be considered as legal and valid. Zhang Dongdong signed a commercial housing sales contract with Dafenggang Real Estate Company and applied for a mortgage loan. He didn't sign an agreement with Dafeng Port Real Estate Company to pay for the project. Therefore, when buying this house, Zhang Dongdong not only expressed his intention to buy a house, but also actually signed a commercial housing sales contract. After Zhang Moudong signed the Personal Building Mortgage Loan Contract with Changxin Rural Commercial Bank and Dafenggang Real Estate Company, Changxin Rural Commercial Bank fulfilled the obligation of issuing loans to Dafenggang Real Estate Company, and Zhang Moudong also fulfilled part of the repayment obligations as agreed. After the loan is transferred to the selling account of DaFengGang Real Estate Company, how DaFengGang Real Estate Company uses the loan cannot deny the validity of the commercial housing sales contract. The court of first instance found that the commercial housing sales contract involved in this case was actually concluded by Zhang to obtain a bank loan, which lacked factual and legal basis and should not be supported.

Related question and answer: What does evasion mean? Avoidance is a Chinese word, which means: try to avoid it; Avoid.

First, pinyin

Escape [Gu Heyi]

Second, the source

Qing Li wrote in Love, Care and Enjoy Life: "At that time, there were much more gnats than today, and I wanted to avoid them, but I couldn't."

Explanation:

At this time, there are many mosquitoes, which are several times as many as before. It is impossible for them to bite and avoid it a little.

Third, examples

1, my duty is to foster strengths and avoid weaknesses, so-called knowing people and being good at their duties.

2. There are policies at the top and countermeasures at the bottom. Since then, food processors have tried every means to circumvent the labeling rules, thus achieving the purpose of confusing and enticing consumers.

Extended data

First, synonyms:

avoid

Interpretation: bogey; Avoidance; Hide.

Source: Qing Wu Ren Jian's "The Present Situation of Monsters Witnessed in Twenty Years" The twelfth time: "It stinks, and everyone can't escape."

At that time, the smell was so strong that everyone could not escape.

Second, antonyms:

Disclosure [p and Lu]

Interpretation: statement; Confession; Announce; Release.

Source: Ye Fan's Biography of Cai Yong in the Southern Song Dynasty: "Because of the profound study of Confucian classics, it is appropriate to disclose what is lost, and refer to Chen Zhenggui. Don't doubt it. "

Because Cai Yong's Confucian classics are profound and profound, you should ask questions in private. You should state political gains and losses, point out administrative essentials, don't be ambiguous, and make your own doubts and taboos.