civil judgment

(2009) Guang Hai Fa Zi Chu No.45

Plaintiff: Lingtou Villagers Group of Lingtou Village Committee, Taiping Town, Mazhang District, Zhanjiang City. Address: Lingtou Village, Taiping Town, Mazhang District, Zhanjiang City.

Legal Representative: Chen Feixiang, village head.

Authorized Agent: Xu Xiaoming, lawyer of Guangdong Xiangmin Law Firm.

Defendant: Mo Peicheng.

Authorized Agent: Lin Huaihai, lawyer of Guangdong Yuehai Law Firm.

Plaintiff Lingtou Village Group of Lingtou Village Committee of Taiping Town, Mazhang District, Zhanjiang City and defendant Mo Peicheng. After accepting the case on February 25, 2008, our hospital formed a collegial panel according to law, convened the parties to exchange evidence before the trial on March 25, 2009, and heard the case in public the next day. Chen Feixiang, the plaintiff's legal representative, and Xu Xiaoming, the defendant Mo Peicheng and Lin Huaihai, his entrusted agent, attended the proceedings. The case has now been closed.

According to the original report, on March 16, 2007, the plaintiff and the defendant signed a fishing weir contract, stipulating that the plaintiff would contract the fishing weir located at the east end of Lingtou Village with an area of more than 800 mu to the defendant for use, with a contract period of 30 years and a contract fee of 90,000 yuan. After the signing of the contract, the plaintiff has handed over the fishing weir to the defendant for breeding. Because the contract only covers the administrative chapter of Lingtou Village, but not the official seal of the villagers' group; The defendant was not a villager in the village, and the contracting behavior was decided by the original village head without the consent of two-thirds of the villagers' team members. The contract between the original defendant and the defendant on the fishing weir belongs to the exclusive use of the sea in rural areas, which violates the relevant prohibitive laws of our country and is an invalid civil act. Request a judgment to confirm that the weir fishing contract signed by the original and the defendant is invalid, and the defendant shall bear the legal costs.

In order to support his claim, the plaintiff submitted the following evidential materials to the court within the time limit of proof: 1, the contract of fishing weir, and the proof of Taiping legal service office; 2. Schematic diagram of contracted waters.

Defendant Mo Peicheng argued: I am really not a villager in the plaintiff's village, but the signing of the contract was agreed by the village, and the seal used was also witnessed by Taiping Legal Service. There is no denying the authenticity of the contract. Whether the village holds a meeting to study and discuss the contracting issue is the plaintiff's internal affairs. The requirement that two thirds of the villagers agree does not apply to this case. The fishing weir contract signed by both parties is legal and valid, and the court is requested to reject the plaintiff's claim.

In order to support his defense claim, the defendant submitted the following evidential materials to the court within the time limit for adducing evidence: 1, the contract of fishing weir, and the proof of Taiping legal service office; 2. Certificate of sea area use right; 3, water beach culture certificate; The defendant took five photos of the relevant sea area.

Members of the collegial panel agreed that the defendant and the evidential materials provided by the defendant were true and related to the facts of the case and could be adopted as evidence of the case; As for the facts of the case proved by various evidences, they will be comprehensively identified according to the trial situation and the confirmation between the evidences.

It was found through trial that on March 16, 2007, the Lingtou villagers' group of Lingtou Village Committee in Taiping Town of Party A signed a contract with Party B Mo Peicheng, stipulating that Party A agreed to contract all the fishing weirs in the village to Party B on March 65438, 2007, so as to develop the economy and further improve the utilization rate and economic benefits of the existing fish ponds. Fishing weir is located in the east of the village, named Shangcao and Cao Xia, with an area of more than 800 mu. There is Daxi in the east, Dayan in the west, the first port in the north and Touzhou in the south. (2) the contract period and contract payment. The contract term is 30 years, that is, from February 30, 2007 to February 30, 2037; The general contracting fee is 90,000 yuan, which will be paid in three phases. Within 3 days after the signing of this contract, Party B shall pay 30,000 yuan to Party A, 30,000 yuan before August 2007 1 October 2008 1. (3) Rights and obligations of both parties. Party B can only engage in mariculture in the fishing weir. If it is necessary to change the business purpose or subcontract to others, it must inform Party A; Otherwise, Party A has the right to take back the weir and make other arrangements. If the fishing weir is expropriated by the state, Party B shall unconditionally obey, but the expropriation money of the fishing weir shall be returned to Party A, and the buildings and other facilities within the business scope of Party B shall be returned to Party B if compensated by the state, and Party A shall also refund the rent for the remaining years according to the lease term. All taxes and fees payable by Party B during the operation period shall be borne by Party B; During the contract period, if Party B needs to repair the fishing weir, it shall borrow soil from10m outside the dike and 5m inside the dike to build the dike; After the expiration of the contract, Party B shall unconditionally deliver the real estate and fishing weir within the business scope to Party A on time. (IV) This contract shall come into effect as of the date of signing, and both parties shall strictly abide by it. The breaching party shall pay the observant party a penalty of RMB 3,000, and bear corresponding legal responsibilities. The contract has the autographs of Party A Chen Feifa and Party B Mo Peicheng, and the seal of "Lingtou Village Committee of Taiping Town, Mazhang District, Zhanjiang City". This contract was signed on March 6, 2007/kloc-0.

On the same day, Taiping Law Service issued a certificate saying: This is to certify that the villagers' group in Lingtou Village of Taiping Town and Mo Peicheng, a self-employed person in Chikan District of Zhanjiang City, signed the "Fishing Weir Contract" on March 6, 2007. Upon investigation, the signing behavior of both parties conforms to the provisions of Article 55 of the General Principles of Civil Law of People's Republic of China (PRC), and both parties sign, print and seal the contract. The certificate is signed by Chen Jinhua, manager of Taiping Law Service Office.

After signing the contract, the defendant has paid the plaintiff the contract fee of 90,000 yuan, and the plaintiff has given the fishing weir to the defendant for use.

On May 8, 2007, the Certificate for the Use of China People's Beach Culture issued by the People's Government of Mazhang District, Zhanjiang City recorded that the user of the water beach was Shangcaoyu Fishing Ground in Lingtou Village, Taiping Town, and the legal representative or person in charge was Mo Peicheng, with a service period of 5 years and the purpose of seawater. Its location is: east longitude 2100' 21.192 ",east longitude110/2' 21.91. West to the north latitude 2 1 00' 24. 12 ",east longitude110/2'1.298"; From south to north latitude 2 1 00' 8. 148 ",east longitude110/kloc-0' 5.802"; North to 2100 ′ 58.992 ″ north latitude and10/3 ′1.602 ″ east longitude.

On June 30, 2008, the Marine and Fisheries Bureau of Mazhang District of Zhanjiang City recorded in the Certificate of People's Republic of China (PRC) Sea Area Use Right (No.:084408110001): Mo Peicheng, the owner of sea area use right; Legal Representative Mo Peicheng; Address: Room 402, Building No.9 14, Zhongshan Road, Chikan District, Zhanjiang; Project name: Shangxiacao Farm, Lingtou Village, Taiping Town; Types of sea: sea for aquaculture; The sea area is 66.7 15 1 hectare; Deadline for approval: 2065438+June 30, 2008. The use right certificate has been inspected annually, and the annual inspection is valid until June 30, 2009. From June 30, 2008 to June 30, 2009, the sea area use fee of 8,005 yuan has been collected.

During the trial, the plaintiff claimed that the sea area where the weir is located belongs to the state and it has no right to use it.

Members of the collegial panel agreed that this case was a dispute over marine development and utilization. The original court was told to confirm that the original weir fishing contract signed with the defendant was invalid, so this case is a lawsuit of confirmation, and the court should judge the legal effect of the contract according to the relevant laws and regulations, that is, confirm the validity or invalidity of the contract.

Article 52 of the Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Contract Law) stipulates: "A contract is invalid under any of the following circumstances: (1) One party concludes a contract by fraud or coercion, which harms the interests of the state; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations. " Therefore, to judge whether the weir fishing contract signed by the original and the defendant has legal effect is mainly to examine whether the contract has one of the five situations stipulated in Article 52 of the Contract Law.

The contract of fishing weir covers more than 800 mu of sea area, that is, 66.7438+055438+0 hectare. The plaintiff made it clear in court that the sea area where the weir is located belongs to the state and has no right to use it. In fact, the plaintiff did not show any evidence to the court to prove that he enjoyed the legal right to use the sea area, and the court did not find any relevant evidence that the plaintiff enjoyed the right to use the sea area. On the contrary, the defendant submitted to the court the Use Certificate of People's Republic of China (PRC) Tidal Flat Culture and the Use Certificate of People's Republic of China (PRC) Sea Area issued by the local people's government and its functional departments to prove that the defendant has the right to use the sea area involved. According to Article 3 of the Law of People's Republic of China (PRC) on the Use and Management of Sea Areas, the sea area belongs to the state, and the State Council exercises the ownership of the sea area on behalf of the state. No unit or individual may occupy, trade or illegally transfer sea areas in other forms. Units and individuals must obtain the right to use sea areas according to law. If the plaintiff admits in court that he has not obtained the right to use the sea area where the fishing weir involved is located according to law, he has no right to contract the sea area to the defendant for mariculture. Therefore, the weir fishing contract signed by the plaintiff and the defendant is invalid because it violates the provisions of Article 52 of the Contract Law, and the plaintiff does not have the right to conclude the contract.

According to Item (5) of Article 52 of People's Republic of China (PRC) Contract Law and Article 3 of People's Republic of China (PRC) Sea Area Use Management Law, the judgment is as follows:

The contract for fishing weir signed by the plaintiff Lingtou Village Group of Lingtou Village Committee of Taiping Town, Mazhang District, Zhanjiang City and the defendant Mo Peicheng has no legal effect.

The case acceptance fee 100 yuan shall be borne by the defendant. The court shall refund the plaintiff's fee for accepting the case in advance, and pay the litigation fee borne by the defendant directly to the court.

If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties to appeal to the Guangdong Higher People's Court.

Ni Weixue, presiding judge

Judge Wen Jing.

Acting Judge Yang Yousheng

May 2009 12

Bookkeeper Zhang Rong

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