Viewpoint | A brief analysis of real estate execution issues

The illegal buildings here refer to the buildings that violate the land law, planning law, construction law and other relevant laws and regulations, and have not obtained the construction project planning permit or temporary construction project planning permit, or have not been constructed according to the above permission requirements.

Illegal construction can be divided into procedural illegal construction and substantive illegal construction. Procedural illegal construction means that the building does not hinder urban planning, and the builder must apply for a real estate certificate in accordance with certain procedures. Substantial illegal construction means that a building cannot be corrected according to procedures to make it a legal building. Article 64 of the "the People's Republic of China Urban and Rural Planning Law" distinguishes between the legal responsibilities of procedural illegal construction and substantive illegal construction, "... If corrective measures can be taken to eliminate the impact on the implementation of the plan, corrections shall be made within a time limit, and the construction project A fine of 5% to 10% of the cost; if corrective measures cannot be taken to eliminate the impact, the physical object or illegal income shall be confiscated, and a fine of less than 10% of the construction project cost may be imposed."

According to Article 231 of the the People's Republic of China Civil Code, "the establishment or elimination of real rights due to legal construction, demolition of houses and other factual acts shall take effect from the achievement of the factual acts". Legal construction acts can establish real rights. Buildings that have not obtained real property rights due to illegal construction procedures naturally cannot establish real property ownership. However, the possessive interest in the illegal construction of the house may be the subject of the execution of the disposal. The Higher People's Court of Shandong Province issued the "Answers to Difficult Legal Issues in Enforcement", which stipulates that unlicensed houses built on state-owned construction land do not belong to the property that the court shall not seal up, seize, or freeze as stipulated by the law and judicial interpretation. Therefore, for unlicensed houses built on state-owned construction land, they can apply to the people's court for execution and disposal. In the execution, the people's court should be applied to solicit opinions from the housing registration authority on whether the house can be converted into a licensed house, and it should be used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Enforcement" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions for the time being, the court can issue a "Notice of Assistance in Enforcement" to the housing registration agency after disposal, and state that the buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Implementation; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo of the house that does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the transferee shall acquire the house according to the status quo of the house's rights, and the subsequent property right registration shall be the responsibility of the buyer or the transferee. The Supreme People's Court issued the Supreme People's Court's Notice on Forwarding the Ministry of Housing and Urban-Rural Development.<关于无证房产依据协助执行文书办理产权登记有关问题的函>The Notice also makes relevant provisions.

In addition, in the online auction announcement, the status quo that the house does not have the registration conditions, the nature of the land, and the related risks of the buyer should be disclosed. Even if the illegal building is demolished due to violation of relevant laws and regulations in the future, it also belongs to the executed property. Within the acceptable and expected risk range of bidders. The legal effect of the transfer of property rights can still occur in the execution of the auction decision made by the court, without the need for publicity through the registration of property rights changes.

Related provisions:Article 14 of the Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts Where online judicial auctions are implemented, the people's court shall give special reminders to the following matters through the online judicial auction platform on the day the auction announcement is issued: (3) Known defects and rights burden of the auction property; (IV) the auction property is subject to the actual status quo, the bidder may apply for on-site sample viewing; (V) the bidder decides to participate in the bidding, it is deemed to have full knowledge of the auction property and to accept all known and unknown defects of the auction property; the deposit will not be refunded after the (VII) buyer repents. Article 15 The person subject to execution shall provide relevant information and explanations on the quality of the property to be auctioned. If the people's court has made public announcements and special reminders in accordance with the requirements of Articles 13 and 14 of these regulations, and declared in the auction announcement that it cannot guarantee the authenticity or quality of the auction property, it shall not bear the liability for defect guarantee.

Similar cases:

Case 1. Supreme People's Court (2016) Supreme Law Enforcement No. 161

The court believes that before the illegal building is demolished or demolished by the relevant departments by exercising public power, the illegal building still has a certain use value. Although the person subject to execution does not have ownership of the illegal building, its long-term possession, use and lease The income obtained should be regarded as the executable property with use value. Article 2 of the Notice of the Supreme People's Court Forwarding the Enforcement of Unlicensed Real Estate by the Ministry of Housing and Construction (hereinafter referred to as the Notice) clearly states that "when disposing houses that have not been initially registered in the enforcement procedure, ...... does not have the conditions for initial registration, in principle, 'status quo disposation' is carried out, that is, the current situation of the house that does not have the conditions for initial registration is disclosed before disposal, and the buyer or the owner acquires the house rights, subsequent property registration matters are the sole responsibility of the buyer or the recipient." The Intermediate People's Court of Nanping City, Fujian Province, according to the status of the building to deal with the requirements of the notice. The enforcement ruling clearly informs the current situation of the illegal building, and also indicates the fire safety and other risks that may arise after the delivery of the building.

The enforcement ruling only changes the factual state of possession of illegal buildings, does not involve the ownership of buildings, does not legalize illegal buildings through assistance in enforcement, and does not affect the administrative authorities' decision to deal with illegal buildings in the future.

There is a view that real estate that has not been examined and approved by the administrative department or built in accordance with the approved content belongs to "articles or property rights prohibited by laws and administrative regulations" as stipulated in Article 7 of the auction Law, and the court shall not trade, transfer or circulate by auction, sale, debt repayment, etc. The court's compulsory disposal of illegal buildings is suspected of legalizing illegal buildings through judicial actions, and is suspected of infringing the administrative powers of the administrative department. Therefore, the actual illegal buildings cannot be auctioned.

However, the author believes that the construction method itself has temporary availability. Before the illegal building is demolished, confiscated or dismantled by the administrative department, it still has the beneficial property of property, which can be used not only in the person subject to execution, but also in others, and should be regarded as the executable property with temporary use value. However, for the actual illegal construction, it should not be legalized through judicial execution. The court auction does not take the transfer registration of the ownership of the illegal construction as a precondition. In the judicial auction and other disposal, the bidder must fully and truthfully perform the obligation of informing the defect risk. The informing is divided into three levels: first, informing the rights and utility defects of the auctioned real estate. It is necessary to specially prepare and announce the "Notice of Defects in Auctions" for such cases to clarify the illegal situation of the real estate involved. The second is to warn that the registration of property rights may be blocked. The relevant text of the notice is marked in bold, underlined and other significant ways to warn bidders that after winning the illegal building, they have the right to temporarily possess, use and earn income from the illegal part of the real estate. The illegal part of the real estate cannot be reflected in the ownership certificate, and even the legal part is prohibited from issuing certificates due to the involvement of the illegal part. The third is to prompt the consequences of holding illegal buildings and give reasonable suggestions. Remind bidders to correctly handle historical issues, and clarify that in accordance with Article 64 of the Urban and Rural Planning Law, the administrative department has the right to take penalties such as "correction within a time limit and fines, demolition within a time limit, confiscation of physical objects or illegal income" for illegal buildings. If the illegal part can be physically separated from the legal building, it is recommended to dismantle it by itself, and for the illegal building that can be corrected, it is recommended to go through the relevant procedures in time.

Relevant provisions: "on the implementation of difficult legal issues in Shandong High Court"

8. Can the court enforce unlicensed houses built on state-owned construction land?

A: unlicensed houses built on state-owned construction land are not property that the courts may not seal up, seize or freeze as stipulated by the law and judicial interpretation. Therefore, for undocumented houses built on state-owned construction land, the court can enforce. During the implementation, opinions should be solicited from the housing registration authority on whether the house can be converted into a licensed house, and used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Execution" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions temporarily, the court can issue a "Notice of Assistance in Execution" to the housing registration agency after disposal, and state that after the house buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Execution; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo that the house does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the recipient shall acquire the house according to the status quo of the rights of the house, and the subsequent property right registration shall be the responsibility of the buyer or the recipient.

Reference Case 2. Shandong Higher People's Court (2021) Lu Zhi Fu No. 231

The opponent claimed that in the (2019) Lu 03 Zhifu No. 206 execution ruling, the real estate involved in the case did not go through the procedures of construction project approval, planning, land transfer, commencement permit, completion acceptance, etc., which was an illegal building. The Zibo Intermediate People's Court held that, in accordance with Article 15 of the "Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts", the person subject to execution should provide relevant information and explanations on the quality of the auction property. If the people's court has made public announcements and special reminders in accordance with the requirements of Articles 13 and 14 of these regulations, and declared in the auction announcement that it cannot guarantee the authenticity or quality of the auction property, it shall not bear the liability for defect guarantee. With reference to the Notice of the Supreme People's Court on Forwarding the Letter of the Ministry of Housing and Urban-Rural Development on Issues Related to the Registration of Property Rights for Unlicensed Real Estate Based on Assistance in Enforcement Documents, even if there are violations of regulations, the real estate involved in the above case also has property attributes. The court can dispose of the above real estate as it is, and the consequences after disposal have nothing to do with the objector. Therefore, the seizure of the Zibo Intermediate people's Court in accordance with the law and the assessment of the auction and disposal of the property involved in the above-mentioned case by the people's Court of Zhangdian District in accordance with the relevant laws and regulations. The higher people's Court of Shandong Province held that the real estate involved in Gong Zibin's claim was an unlicensed real estate, and the court could not dispose of it without going through the relevant formalities. Referring to Article 2 of the notice of the Supreme people's Court on forwarding the Ministry of Housing and Urban-Rural Development on issues related to the registration of property rights on the basis of assistance in the implementation of documents, the real estate involved in the case still has a certain property value, in principle, the people's court conducts "status quo disposal" and discloses the situation of the property before disposal, so that the buyer or recipient can acquire the house in accordance with the status quo of the house's rights. According to the above provisions, the people's court has the right to seal up and dispose of the property involved in the case.......

The implementation practice of auction real estate often involves the existence of housing rental issues on the property disposed of by auction, in which case it is an auction with rent or an auction without rent, often becomes the focus of the implementation of the dispute.

1. Confirm the right to dispose of the house

Before auctioning and disposing of the house involved in the case, the issue of the disposal right of the enforcement court should first be confirmed, mainly whether the enforcement court is the first court of the house involved in the case, and if it is waiting for seizure, it should be auctioned after obtaining the disposal right in accordance with the provisions of the Supreme people's Court on issues related to the first seizure of the court and the priority creditor's rights enforcement court. As for whether or not to bring rent auction, it is not an obstacle for the people's court to make an auction ruling.

Related provisions:Article 1 of the Provisions of the Supreme People's Court on the Auction and Sale of Property in Civil Execution by the People's Court: In the execution procedure, after the property of the person subject to execution is sealed up, seized or frozen, the people's court shall promptly auction, sell or take other enforcement measures.

2. Can "auction with rent"

The key issues in the auction with lease are whether the lease time is before or after the seizure, and the implementation of the court's principle of full publicity (due diligence disclosure). The lease of the property does not affect the ownership of the house, it is still the property of the executed person, and the enforcement court may seize and evaluate the auction. The lease before the seizure or mortgage is a legal and valid lease and may be auctioned with the lease in accordance with the regulations. The lease after seizure or mortgage can be removed, and the lessee does not enjoy the "unbroken lease" and the right of first refusal. Is the procedure of removal of the lease after seizure necessary? The practice is that the enforcement judge generally takes measures to vacate the house only after the auction is over after identifying the lease.

3. Auction publicity

In the auction announcement, notice, subject matter questionnaire in a clear position, clear font publicity lease facts and lease situation, and should take a reasonable way to prompt bidders to pay attention. With regard to the scope of the public lease, the three main factors of the public lease term, lease fee and preemptive right holder need to be expressed in words, and the disclosure of the oral agreement is clear, and the failure to provide rent payment records is also clear, and the lessee's preemptive right should also be publicized.

Related provisions:Article 726, paragraph 1, of the Civil Code: Where the lessor sells the leased house, it shall notify the lessee within a reasonable period of time before the sale, and the lessee shall have the right to purchase on the same terms.

Article 7 of the Provisions of the Supreme People's Court on the Auction and Sale of Property in Civil Execution by the People's Courts The executants shall conduct necessary investigations into the ownership, possession and use of the auction property, make a record of the investigation of the current situation of the auction property or collect other relevant information.

Article 11 The people's court shall, five days before the auction, notify the parties and the known pre-emptive right to be present on the auction day in writing or in other appropriate ways that can confirm the receipt.

Provisions of the Supreme People's Court on Several Issues Concerning Online Judicial Auctions by People's Courts

Article 6 Where an online judicial auction is implemented, the people's court shall perform the duty of notifying the parties and the right of first refusal.

Article 13 Where an online judicial auction is implemented, the people's court shall publicize the following information through the online judicial auction platform on the day of the auction announcement:... Text description, video or photo, etc., (V) the status quo of the auction property ownership, possession and use, accompanying obligations, etc.; (VI) the subject of the right of first refusal and the nature of the right; (VII) notice or inability to notify the parties, the known right of first refusal...

4. Waiting for Objection

A dissenting period is reserved in the auction announcement, because factors such as the legality of the lease contract and the existence of an outsider to the execution of the subject matter may affect the progress of the execution or have a significant impact on the reference disposal price of the execution of the subject matter, and the reference price for the disposal of the property is generally determined after the dissenting period.

5. Determine the reference price for disposal and vacate the house.

After no objection has been raised or the objection has been rejected, the procedure for determining the reference price for disposal may be initiated. Specifically 1. If the objector files an action for an enforcement objection, the enforcement court may suspend the initiation of the procedure for determining the reference price for disposal. However, if the applicant for execution provides appropriate security and requests to determine the disposal reference price by auction without rent, the disposal reference price may be determined by auction without rent after examination.

In general, the applicant may provide a letter of guarantee for the continued execution of liability insurance. The continuation of liability insurance means that the applicant provides a policy guarantee issued by the insurance company, and the court, after examination, can continue to dispose of the property while the outsider raises an objection to the execution, without the need to suspend the execution. After the applicant has insured with a qualified insurance company, the insurance company issues to the court the "Continued Execution of Liability Insurance Policy Guarantee" and relevant audit materials, and the court continues to dispose of the property under the name of the executed person in accordance with the policy guarantee. At the same time, according to the letter of guarantee, if the applicant (I. e. the insured) requests the people's court to continue the execution and causes losses to the outsider, the insurance company will compensate for the corresponding losses in accordance with the agreement of the insurance contract.

Related provisions:The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation of "Article 313" During the trial of an outsider's execution objection, the people's court shall not punish the subject matter of execution. Where the executor of the application requests the people's court to continue the execution and provide a corresponding guarantee, the people's court may grant permission.

Reference Case 3. Xilinhot City People's Court applied for a dispute over a compensation contract for house demolition and resettlement between Li Mou, the executor, and a company in Xilinhot City.

In 2019, the case of a dispute over a housing demolition and resettlement compensation contract between the executor Li and the executor of a company in Xilinhot City entered the execution procedure. Because the executor did not perform the judgment obligation in time, the court sealed up a number of houses under the name of the executor. After the seized property entered the disposal procedure, the outsider Zhang Moumou raised a written objection to the execution. Subsequently, after his objection was rejected, Zhang Moumou filed an outsider's objection. According to the relevant laws and regulations, during the period of examination of objections by outsiders, the people's court shall not punish the subject matter of execution, and if the applicant requests to continue the execution, it shall provide sufficient and effective guarantee. After that, the executor provided the continuing enforcement liability insurance issued by China Land Property Insurance Co., Ltd., and the enforcement court made a ruling on continuing enforcement.

2. If the occupier of the house involved neither raises any objection nor vacates the house within the limited time limit, he may apply to the enforcement court for vacating the house. Specific ways to vacate the house:(1) forced to vacate and empty the rental house. (2) The actual occupier shall cooperate with the court to dispose of the leased house and vacate the house on his own after the court auction is successful or the debt is settled, or enter into a separate lease agreement with the buyer.

3. If the executor files an objection to the execution within the statutory time limit and does not agree to dispose of the house involved in the case by auction with rent, the people's court may suspend the procedure for determining the reference price for disposal and start it after the relevant litigation procedure is completed. If the executor neither files an objection to the execution within the statutory time limit nor agrees to evaluate and dispose of the house involved in the case by auction with rent, the procedure for determining the reference price for disposal may be in the form of a lease auction.

6. Auction and Transfer

The following points should be noted for the specific operation of the execution of the case auction: 1. The auction announcement specifies whether the auction is carried with rent; 2. If the auction is carried with rent, the auction announcement shall state the lease term, rent payment and other relevant circumstances; 3. The lessee's right of first refusal shall be guaranteed in accordance with the law.

According to the provisions of the Supreme People's Court on the sealing up, seizure and freezing of property in civil execution by the people's court (hereinafter referred to as the provisions on sealing up) and other relevant provisions, combined with the actual implementation work, the false lease behavior should have the following elements:

The first is subjective intent, I .e., the parties' fictitious lease agreement has a malicious intent against the applicant or resistance to execution. Second, there are fictitious lease agreements, including forgery of lease agreements, malicious reverse signing of agreements, extension of lease terms and so on. The third is to cause serious consequences that hinder enforcement, including serious delays in enforcement, significant increases in judicial costs for enforcement, and serious damage to the interests of the applicant for enforcement. Fourth, there is a causal relationship between fictitious lease behavior and serious consequences, but if there are multiple acts that have consequences that hinder execution, the court should review the influence of each act on the consequences.

Specifically, fictitious tenancy agreements should be examined in the following areas:

1. The time when the lease agreement is signed.The order of key time points such as the time of signing the agreement and the setting time of priority compensation rights such as mortgages and the time of court seizure should be reviewed. According to the "seizure provisions", after the court seized the real estate involved in the case, the person subject to execution set a burden of rights on it and could not oppose the applicant for execution. Therefore, the court should focus on reviewing the lease agreement signed before the court seizure and the establishment of priority compensation rights such as mortgages, and examine whether there are fictitious facts such as "reverse signing" in combination with other evidence.

2. The possession of the property involved.Possession is the general manifestation of the lease right publicity, so whether to occupy the property involved is an important basis for determining the false lease. If the outsider can provide evidence such as his payment of property, water, electricity and coal, as well as the renovation agreement, to prove that he actually owns the property involved, the authenticity of the lease agreement is higher. Special attention should be paid to the fact that the actual possession of an outsider should be prevented from "reverse signing" the lease agreement after the mortgage or seizure of the property in question before the establishment of priority compensation rights such as mortgages or the court seizure.

3. Rental payments.The actual payment of rent is an important basis for judging the real existence of the lease relationship. First, outsiders who claim that the rent has been paid in one lump sum should provide proof of payment. If the payment amount exceeds 50,000 yuan, third-party vouchers such as bank transfer shall be provided. Second, if an outsider claims rent-to-debt, it is necessary not only to prove the existence of the underlying debt relationship, but also to prove that the underlying debt relationship occurred before the court served it with a rent freeze decision and a notice of assistance in enforcement. If the offset amount exceeds 50,000 yuan, third-party vouchers such as bank transfer shall be provided.

4. Other relevant circumstances.Other relevant circumstances that need to be reviewed mainly include: first, the lease term, false lease general lease term is longer, mostly the maximum period of 20 years or close to 20 years stipulated in the Civil Code.

Reference Provisions: Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts

Article 31, paragraph 1: If the lessee requests to prevent the transfer of possession of the executed immovable property to the transferee during the lease term, and a legally valid written lease contract has been signed and the immovable property is occupied and used before the people's court seals it up, the people's court shall support it.

Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution by People's Courts

Article 24 stipulates that the transfer, creation of a burden of rights or other acts that hinder the execution of the property that has been sealed up, seized or frozen by the person subject to execution shall not be opposed to the person applying for execution. Where a third party, without the permission of the people's court, takes possession of the property sealed up, detained or frozen or performs other acts hindering the execution, the people's court may, on the application of the person applying for enforcement or ex officio, release the possession or remove the obstruction. If the seizure, attachment or freezing of a people's court is not publicized, its effect shall not be against a bona fide third party.

Provisions of the Supreme People's Court on the Auction and Sale of Property in Civil Execution by the People's Courts

Article 28 The original security right and other priority compensation rights on the auction property shall be extinguished by the auction, and the proceeds of the auction shall give priority to the settlement of the claims of the security right holder and other priority compensation rights, unless otherwise agreed by the parties.

The original lease right and other beneficial property rights on the auction property shall not be eliminated by the auction, but the right continues to exist on the auction property, which has an impact on the realization of the prior security right or other priority compensation rights, the people's court shall remove it in accordance with the law and conduct the auction.

Reference Case 4. Application for Retrial of Other Contract Disputes between Yinglianshi Animation Culture Development (Beijing) Co., Ltd. and Beijing Henghua Jiahui Technology Co., Ltd. and Haori Investment Co., Ltd. (2014) Minshen Zi No. 215

Referee's view:The contract of lease-to-debt is not a legal relationship of lease, but the contract relationship of creditor's rights and debts does not apply to the rule of "buying and selling without breaking the lease" stipulated in the Civil Code.

In the opinion of the Court, the issue of determining the nature of the Contract for the Right to Use a House. A house lease contract is an agreement in which the lessor of a house provides the house to the lessee for use, the lessee pays the rent on a regular basis, and returns the house to the lessor at the end of the contract. Therefore, the purpose of the lessee's contract is to obtain the right to use the house, and the lessor is to collect rent. In this case, Haori Investment Company (Party B) and British Union Vision Company (Party A) agreed in Article 1, Paragraph 1.1 of the Contract for the Payment of Debt for the Right to Use of Houses: As Party B owes Party A 3 million yuan and is unable to repay it, Party B agrees to hand over the house it owns to Party A for use and repay the debts owed with the rights and interests of use according to the supplementary agreement signed by both parties on March 22, 2004. It is agreed in Article 1.3 that after it comes into effect, Party B shall be deemed to have repaid all the debts owed by Party 3 million yuan. At the same time, Party A shall obtain the right to use the "used house" for one hundred and eighty years, from March 22, 2004 to March 21, 2022. Judging from the contents of the contract, in order to pay off its claims, British Union Vision agreed to offset the loan of 3 million yuan by transferring the 18-year right to use the house of Haoli Building. It can be seen that the Contract for the Right to Use a House is a contractual debt in which the debtor pays off the arrears with the right to use the house, unlike the lease contract between the lessor and the lessee. Therefore, it is not improper for the 1.'s second-instance judgment to find that the "Housing Right to Use Debt Contract" signed between British Union Vision and Hao Li Investment Company is a contractual relationship of creditor's rights and debts rather than a housing lease contract.

(II) on the question of whether the rights enjoyed by British United on the house in question can be opposed to the property rights of Henghua Jiahui. According to the above analysis, the "Housing Use Right Debt Contract" signed between British Union Vision and Hao Li Investment Company is the debt of the contract for the use of the house to offset the arrears, not the housing lease contract, so the principle of "buying and selling without breaking the lease" stipulated in the contract law is not applicable in this case. In addition, according to the principle of relativity of the contract, the "Housing Use Right Debt Contract" signed between British Union Vision and Beijing Haili Company is only legally binding on both parties to the contract and cannot be used against third parties outside the contract. The ownership of the Haoli Building involved in the case has been acquired by Henghua Jiahui Company through auction, that is, Henghua Jiahui Company has obtained the property rights of possession, use, income and disposition of Haoli Building in accordance with the law. Exclusiveness is the basic attribute of real right, even if the British Union Vision Company obtains the right to use the Haoli Building on the basis of creditor's rights, because it has not registered other rights, it can not fight against the real right enjoyed by Henghua Jiahui Company on Haoli Building. Therefore, the second-instance judgment did not support the claim that the right to use the house involved in this case took precedence over the property rights enjoyed by Henghua Jiahui Company to the Hao Li Building by the "Real Estate Cooperative Housing Contract" and the "Housing Use Right Debt Contract", and there was a factual and legal basis. British Union Vision applied for a retrial, saying that its rights to the house in question could be opposed to the property rights of Henghua Jiahui Company, and the reason could not be established.

Reference Case 5. the People's Republic of China Supreme People's Court (2021) Supreme Law Enforcement No. 302

The Court considers ...... first of all, on the validity of the mortgage on construction in progress involved in the case. Article 187 of the the People's Republic of China Property Law stipulates: "Where the property specified in Items 1 to 3 of Article 180 of this Law or the building under construction specified in Item 5 of the first paragraph is mortgaged, the mortgage shall be registered. The mortgage right is established at the time of registration." According to the facts found out on the basis of the execution of this case, on March 22, 2012, Jiangmen Branch of Industrial Bank signed the Maximum Mortgage Contract No. 201203010783 with China-Austria Company and Weihua Company, which agreed that China-Austria Company would mortgage the land use right under its name located in Pengjiang District of Jiangmen City to Jiangmen Branch of Industrial Bank. The mortgage is valid from March 22, 2012 to March 22, 2017. On March 23, 2012, the above-mentioned land use rights went through the mortgage registration procedures, and Industrial Bank Jiangmen Branch obtained other rights certificates. On April 6, 2012, Industrial Bank Jiangmen Branch and Sino-Austrian Company signed the "Maximum Mortgage Contract" No. 201203010783-2 of Xing Yin Yue Mortgage (Jiangmen Branch). Sino-Austrian Company mortgaged all the projects under its name in Pengjiang District, Jiangmen City to Industrial Bank Jiangmen Branch. The mortgage is valid from April 10, 2012 to April 10, 2017. Therefore, the mortgage rights enjoyed by the Jiangmen Branch of Industrial Bank for the construction in progress involved in the case were effectively established on April 6, 2012. Article 177 of the the People's Republic of China Property Law stipulates: "The security right is extinguished under any of the following circumstances: (1) the principal claim is extinguished; the realization of the security right is (II); the (III) creditor waives the security right; (IV) other circumstances in which the security right is extinguished under the law." Accordingly, the mortgage is extinguished only by legal causes such as the realization of the mortgage, the dissolution of the mortgage relationship and the loss of the mortgage. During the period between the acquisition of the title certificate and the re-registration of the mortgage of the property, the mortgage of the land use right of the project under construction and the mortgage of the project under construction have not been released and the mortgage has not been lost, it shall be regarded as the continuation of the mortgage and have the effect against the third party. Therefore, Tan Yue has claimed that the effect of the mortgage on the construction of the real estate involved in the case stops at the time of the real estate certificate, lack of legal basis.

Second, the question of the relationship between the mortgage on the construction in progress and the mortgage on the property. According to the second paragraph of Article 34 of the Measures for the Administration of Urban Real Estate Mortgage, "Where a mortgage is made on a presale commercial house or a construction in progress, the registration authority shall make a record in the mortgage contract. If the mortgaged real estate is completed during the mortgage period, the parties concerned shall re-register the real estate mortgage after the mortgagor has received the real estate ownership certificate." Article 62 of the "Housing Registration Measures" stipulates: "After the completion of the construction in progress and the initial registration of the ownership of the house, the parties shall apply for the registration of the mortgage of the construction in progress to the registration of the mortgage of the house." The above provisions all provide for the registration procedures for the conversion of mortgages on construction in progress into mortgages, but the specific procedures and methods of handling them are different, so different procedures may arise in practice. Judging from the facts found out in this case, on June 12, 2014, Jiangmen Branch of Industrial Bank and Sino-Austrian Company signed the "Maximum Mortgage Contract" No. 201307050438 of Xingyin Guangdong Mortgage Word (Jiangmen Branch), and Sino-Austrian Company mortgaged the property involved in the case under its name to Jiangmen Branch of Industrial Bank. On June 13, 2014, the real estate involved in the case went through the mortgage registration procedures, and the Jiangmen branch of Industrial Bank obtained the certificate of other rights. The above facts show that after obtaining the property ownership certificate involved in the case, Zhongao Company re-signed the "Maximum Mortgage Contract" with Jiangmen Branch of Industrial Bank and registered the mortgage right of the house, which is in line with the procedures stipulated in Article 34 of the Measures for the Administration of Urban Real Estate Mortgage. The mortgage right of the construction in progress involved in the case was established on April 6, 2012. Until the property certificate was obtained, the mortgage registration procedures were re-registered for the property involved, at this time, the registration of the mortgage right of the construction in progress is converted into the registration of the mortgage right of the house. Tan Yue has argued that the mortgagee's waiver of the mortgage on the property is inconsistent with the facts. Moreover, according to the facts found out on the basis of the execution of this case, the main creditor's rights contract, mortgagee and mortgagee secured by the mortgage right of the project under construction and the mortgage right of the house are the same, and the mortgage right of the project under construction and the mortgage right of the house are established continuously. Tan Yue claims that there is a gap between the mortgage right of the project under construction and the mortgage right of the house under construction, and the lease right of the lease can oppose the case, and the case. Because Tan Yue only leased the real estate involved in the case on November 12, 2013, under the condition that the mortgage right of the construction in progress involved in the case was re-registered and converted to the mortgage registration according to the procedures of the registration authority, the executive court and the Guangdong High Court determined that the lease right was obtained after the establishment of the mortgage right of the house involved in the case, which has factual and legal basis.

Third, Article 190 of the the People's Republic of China Security Law stipulates that if the mortgaged property has been leased before the conclusion of the mortgage contract, the original lease relationship shall not be affected by the mortgage. Where the mortgaged property is leased after the establishment of the mortgage, the lease relationship shall not be opposed to the registered mortgage. According to the above-mentioned ascertained facts, the lease right enjoyed by Tan Yue was obtained after the establishment of the mortgage right enjoyed by Societe Generale Jiangmen Branch on the property involved in the case, so it cannot be opposed to the mortgage involved in the case, and Tan Yue's relevant grounds of complaint cannot be established.

Article 66 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Security Law stipulates that if the mortgagor leases the mortgaged property, the lease contract shall not be binding on the transferee after the mortgage is realized. When the mortgagor leases the mortgaged property, if the mortgagor fails to inform the lessee in writing that the property has been mortgaged, the mortgagor shall be liable for the loss of the lessee caused by the leased mortgage; if the mortgagor has informed the lessee in writing that the property has been mortgaged, the lessee shall bear the loss caused by the realization of the mortgage. Accordingly, Tan Yue, if he believes that the lease of the collateral by Zhongao Company has caused his losses, may be claimed separately in accordance with the law.

The author believes that Article 3 of the Provisions of the Supreme People's Court on the Seizure, Seizure, and Freezing of Property in Civil Execution by the People's Court stipulates that the people's court shall not seal up, seize, or freeze the following property of the person subject to execution. It does not stipulate that the person subject to execution who has not yet completed the acceptance cannot execute the project under construction. Moreover, if the land use right within the scope of its occupation belongs to the state-owned transfer, but cannot be renewed due to the shortage of funds, then according to the principle of housing everywhere, the project and the land use right within the scope of occupation can be fully implemented, but the land use and construction planning cannot be changed. In the case of Cathay Pacific Leasing Co., Ltd., which the author represents, forcing Gaoqing Juxin Infrastructure Investment Co., Ltd., hundreds of millions of enterprise groups Co., Ltd. and Zibo Qingyi Real Estate Co., Ltd. to perform the effective judgment, that is, through the evaluation and auction of the single project that the main body of Zibo Qingyi Real Estate Co., Ltd. has been completed but has not yet been completed and accepted, the creditor's rights are realized through the way of repayment.

If the land use right within the scope occupied by the project belongs to the national allocation or collective construction land, and the project is legal construction, but it cannot be continued because of shortage of funds and other factors, the author believes that according to Article 4 of the Reply of the State Land Administration to the Supreme People's Court on the Issue of Transfer of Land Use Right Ruled by the People's Court on Letter No.18 [1997], "the land use right obtained through allocation does not belong to the party's own property, it cannot be adjudicated as the property of the parties. However, when it is ruled that the transfer of above-ground buildings and attachments involves the relevant land use right, after reaching an agreement with the local land management department, it may be ruled that the above-ground property shall be transferred at the same time."

When applying for the implementation of the construction in progress on the state-owned allocated land that has not been completed and accepted, it is necessary to pay attention to (1) timely application for the enforcement court to communicate with the local government, land management department and planning department and form a consensus, including but not limited to the government and relevant departments agreeing to the land transfer, approving the court's enforcement, etc.;(2) The land transfer fee and relevant necessary funds and taxes shall be paid in priority for the cash allocated;(3) To go through the relevant procedures for converting the allocated land use right into the transferred land use right.

Reference Case 6. Implementation Case of Loan Guarantee Dispute between ICBC Changan Sub-branch and Hebei Huaxin Group Company and Huaxin Company

The executed person, Huaxin Company, filed an enforcement objection to the court's auction of its allocated land use rights, and the enforcement court rejected the objection. Huaxin Company refused to accept and applied to Shijiazhuang Intermediate People's Court for reconsideration. The Shijiazhuang Intermediate People's Court believes that the land involved in the execution of the court's ruling for auction is allocated land. According to the law, the land management department should first be consulted to determine whether the judicial auction can be implemented, and then the auction ruling should be dealt with accordingly. It was then ruled that the execution of the objection ruling should be revoked and remanded for retrial.

Related Provisions: Reply of the Supreme People's Court on the People's Court's Request for Instructions on the Enforcement of Land Use Rights Obtained by Allocation [2005] Zhita Zi No. 15

the higher people's court of anhui province:

Your hospital [2004] Wan Zhi Jian Zi No. 175 "Request for Instructions on the Application of Dangshan County Sub-branch of Agricultural Bank of China for the Implementation of a Loan Contract Dispute between Anhui State-owned Dangshan Wine Canning Industry Company and Anhui Dangshan Orchard Farm" has been received. After study, the reply is as follows:

After examination, we agree in principle with the tendentious opinion of the judicial committee of your court. Suzhou City Intermediate People's Court [2003] Su Zhongfa Zhizi No. 130-1 civil ruling disposed of the property, although involving state-owned allocated land use rights, but in advance has been agreed by both parties, after the Dangshan County land authorities and approved, in line with the relevant provisions of the "the People's Republic of China Urban Real Estate Management Law" and the "Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Towns" and the State Land Bureau [1997] Guotu Han Zi No. 96 "Reply to the Supreme People's Court Law [1997] No. 18 Letter" spirit. Therefore, the above-mentioned civil ruling of the Suzhou Intermediate People's Court is not improper. However, in the specific work should be strict procedures, pay attention to timely communication and consultation with relevant departments.

Article 50, paragraph 1, of the Civil Code Guarantee System stipulates that when the mortgagor mortgages a building on the allocated construction land, and when the mortgage is realized in accordance with the law, the proceeds from the auction and sale of the building shall be used in priority to pay the grant of the right to use the construction land. If the house is mortgaged on the state-owned allocated land use right obtained in accordance with the law, the state-owned allocated land use right within the scope of the house is mortgaged at the same time, and when the mortgage right to the house is realized, the people's court may simultaneously enforce the state-owned allocated land use right within the scope of the house.

Related Provisions: Interpretation of the Supreme People's Court on the Application of the Guarantee System of the the People's Republic of China Civil Code

Article 50 If a mortgagor mortgages a building on the allocated construction land, and the parties claim that the mortgage contract is invalid or not effective on the grounds that the right to use the construction land cannot be mortgaged or has not gone through the approval procedures, the people's court shall not support it. When the mortgage is realized in accordance with the law, the price of the proceeds from the auction or sale of the building shall be used in priority to pay the transfer fee for the right to use the construction land.

The people's court shall not support the mortgage of the right to use the construction land obtained by the party by means of allocation, and the mortgagor claims that the mortgage contract is invalid or not effective on the grounds that the approval procedures have not been completed. If the mortgage has been registered in accordance with the law and the mortgagee claims to exercise the mortgage right, the people's court shall support it. The price obtained when the mortgage right is realized in accordance with the law shall be treated with reference to the relevant provisions of the preceding paragraph.

Approval of the Supreme People's Court on the question of whether the state-owned land use right can be discounted to the mortgagee (1998) No. 25

(Adopted at the 1019th meeting of the Judicial Committee of the Supreme People's Court on September 1, 1998, promulgated on September 3, 1998, and effective as of September 9, 1998)

The Higher People's Court of Sichuan Province:

We have received your request for instructions on whether the right to use state-owned land can be offset to the mortgagor at a price determined by the land department [1998] No. 19. After study, the reply is as follows:

In the case of a security dispute in which the right to use state-owned land is mortgaged in accordance with the law, if the mortgagee is not paid off at the end of the debt performance period, the land use right may be realized by auction. If it cannot be realized and the debtor has no other property to pay off, the right to use state-owned land shall be assessed in accordance with the law. The people's court may, with reference to the land price assessment results confirmed by the government land administration department, discount the land use right and, with the consent of the mortgagee, compensate the mortgagee with the land use right after the discount, and the land use right shall be enjoyed by the mortgagee.

Reference Case 7: the People's Republic of China Supreme People's Court (2011) Execution Ruling No. 1

The court believes that Article 39 of the the People's Republic of China Urban Real Estate Management Law and Articles 44 and 45 of the Interim Regulations on the Assignment and Transfer of Urban State-owned Land Use Rights require approval for the transfer of state-owned land use rights. The provisions of the people's government with the right of approval are restrictions on the independent transfer of allocated land use rights by enterprises, and do not restrict the people's courts from enforcing them in accordance with the law. Moreover, the land use right allocated in this case is mortgaged for the creditor's rights in this case according to law. The mortgage guarantee has been confirmed to be legal and valid by the civil judgments of Shandong High Court (2006) Lu Min Er Chu Zi No. 66 and Court (2007) Min Er Zhong Zi No. 141, and it is clear that the creditor has the priority to receive compensation for the discount or auction or sale price of the land use right. The Reply of the Supreme People's Court on the question of whether the state-owned land use right can be discounted to the mortgagee also makes it clear that in the case of a guarantee dispute in which the state-owned land use right is mortgaged according to law, the land use right can be realized by auction. Therefore, the Qingqi Group believes that the reason for reconsideration that the disposal of the allocated land use right must be approved by the government in advance cannot be established.

Referring to the relevant provisions and the enforcement cases of the courts at all levels, the author only discusses the enforcement of the land use right of the executed person 1. The enforcement of the land use right under the condition that the land transfer fee has been paid but the land use right has not been registered 2. The enforcement of the idle land use right is discussed.

Regarding question 1, the author believes that if the land transfer fee has been paid but the land use right has not been registered, combined with other evidence to prove that the land use right is the legal property of the person subject to execution, the land use right can be enforced in accordance with the law. Article 39 of the "the People's Republic of China Urban Real Estate Management Law" stipulates that the transfer of real estate shall meet restrictions such as obtaining a land use right certificate or completing more than 25% of the total development investment or forming conditions for industrial land. The above provisions are administrative regulations and are not effective regulations. Since the land use right is the property of the person subject to execution and has property attributes, the people's court may evaluate and auction the land use right of the person subject to execution.

Related Provisions: "Notice of the Supreme People's Court, the Ministry of Land and Resources, and the Ministry of Construction on Several Issues Concerning Regulating the Enforcement of the People's Courts and the Assistance of the Land, Resources and Real Estate Management Departments"Article 14 stipulates that "if the person subject to execution partially pays the land use right transfer fee but has not yet gone through the land use right registration, the land use right that can be divided shall be confirmed by the land and resources management department according to the paid land use right transfer fee, and the people's court may rule on the confirmed land use right to pre-seal. All land use rights that cannot be divided can be pre-sealed. If the person subject to execution fails to pay all the land transfer fees within the prescribed time limit, when the people's government recovers the land use right, the land transfer fees paid by the person subject to execution that should be returned in accordance with the relevant provisions shall be handed over to the people's court for processing, and the pre-seal shall be automatically lifted."

Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution by People's CourtsArticle 2 "Unregistered buildings and land use rights shall be determined on the basis of the approval documents for land use rights and other relevant evidence."

Urban Real Estate Management Law of the People's Republic of China

Article 39 Where the land use right is obtained by way of transfer, the following conditions shall be met when the real estate is transferred: (1) All the land use right transfer fees have been paid in accordance with the transfer contract and the land use right certificate has been obtained; (II) investment and development in accordance with the transfer contract is a housing construction project, more than 25% of the total development investment is completed, and it belongs to a piece of development land, forming industrial land or other construction land conditions.

If the house has been built at the time of the transfer of real estate, the certificate of ownership of the house shall also be held.

Reference Case 8: Baicheng Yuanheng Urban Construction and Development Co., Ltd. and Guohong Loan Contract Dispute (2021) No. 435

The court held that the Jilin High Court held that there was 1. question about whether the people's court of the right to use the land involved in the case could enforce it. The Supreme People's Court, the Ministry of Land and Resources, and the Ministry of Construction issued the "Notice on Several Issues Concerning the Enforcement of the People's Courts and the Assistance of the Land, Resources and Real Estate Departments in accordance with the law" (Fa [2004] No. 5). Article 13 stipulates that if the person subject to enforcement has paid all the land use right transfer fees but has not yet registered the land use right, the people's court may pre-seal the land use right. Pre-seizure is a restrictive measure taken by the people's court on real estate that has not yet been registered and may be registered in the future. Only when the registration authority approves the registration of property rights, it is converted into a formal seizure. Based on the above-mentioned characteristics of pre-seizure, there are no clear provisions in the current laws, regulations and judicial interpretations on whether the unregistered land use rights can be auctioned after pre-seizure. However, according to the provisions of the second paragraph of Article 2 of the provisions of the Supreme People's Court on the seizure, seizure and freezing of property in civil execution of the people's court, the ownership of unregistered buildings and land use rights shall be determined according to the approval documents of land use rights and other relevant evidence. In this case, the land use right involved in the case was acquired by Yuanheng Company, and all the state-owned land use right transfer fees have been paid. According to the approval documents of the land use right and other relevant evidence, it can be proved that the land use right involved in the case is the legal property of Yuanheng Company. In the case that Yuanheng Company does not take the initiative to perform the effective judgment of the people's court, in order to realize the legitimate rights and interests of creditors in time, the people's court enforces the undisputed 5254 square meters of net land under the name of Yuanheng Company, which does not violate the prohibitive provisions of the law. The Supreme People's Court held that the second paragraph of Article 2 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Execution of the People's Court stipulates that the ownership of unregistered buildings and land use rights shall be determined according to the approval documents of land use rights and other relevant evidence. In this case, Yuanheng Company acquired the land use right involved in the case and has paid all the transfer fees for the state-owned land use right. Although it has not yet obtained the land use right registration certificate, in August 2012, Yuanheng Company, as the land use right of 37411.1 square meters (including the land use right involved in the case), filled in the approval form for construction land and the approval form for the transfer of state-owned land use right. Baicheng Municipal Bureau of Land and Resources and Baicheng Municipal People's Government shall affix their official seals to confirm in the column of examination and approval opinions. Accordingly, the Baicheng Intermediate people's Court determined that the land use right involved in the case was the property of Yuanheng Company, and it was not improper to dispose of the land use right involved in the case in accordance with the law when Yuanheng Company, as the person subject to execution, failed to fulfill the obligation determined by the effective judgment in time. Yuan Heng Company claims that the unregistered land use right cannot be enforced and has no legal basis. If the person subject to execution has paid the land transfer fee and has been examined and approved by the relevant departments, according to the provisions of paragraph 2 of Article 2 of the provisions of the Supreme people's Court on the seizure, seizure and freezing of property in Civil execution of the people's Court, if the right holder shown in the transfer contract and examination and approval procedures of the land use right is the person subject to execution, it can still be executed as the property of the person subject to execution even if it has not been registered. The second paragraph of Article 39 of the the People's Republic of China Urban Real Estate Management Law of the People's Republic of 2. is not a mandatory provision for effectiveness. Therefore, even if the contract for the transfer of land use rights signed by the parties does not conform to this provision, it should be considered legal and valid. When an outsider raises an objection to enforcement, it is necessary to judge whether the outsider has the right to exclude enforcement in accordance with Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court.

For question 2.The author believes that articles 2 and 14 of the measures for the disposal of idle land stipulate that idle land refers to idle land that has not started development or has started development but the development area is less than 1/3 of the total construction land area or the amount of investment accounts for less than 25% of the total investment, and the development and construction has been suspended for one year. In accordance with the provisions of Article 14 of the measures for the disposal of idle land, the land administration department may, as the case may be, collect 20% of the land idle fee or recover the land use right free of charge. The author believes that for the long-term idle land of the person subject to execution, the administrative agency can collect 20% of the land idle fee, which is the burden on the land use right of the person subject to execution. This is a problem of the intersection of administrative power and judicial enforcement power. The current laws and judicial interpretations do not make unified provisions on this. Therefore, in principle, at the stage when the land use right of the person subject to execution can be executed by auction, it can be applied to the people's court. Investigate to the Natural Resources Bureau or the Real Estate Registration Center to determine whether there is a problem of land idle fee collection or administrative unit filing punishment, and publicize it when auctioning and disposing of the person's property, and make it clear that the relevant adverse risks are borne by the bidder.

As for the long-term idle land of the person subject to execution and the free recovery of the land use right, the author believes that the seizure of land is a preservation measure made by the judicial organ to ensure the execution of the case, and the land resumption decision is an administrative decision made by the administrative organ based on the corresponding facts and laws, which are the application of judicial power and administrative power respectively, The exercise of the two powers should cooperate and respect each other. Judicial seizure measures do not affect the legality of the land resumption decision itself, and the land cannot be recovered because it has been seized by the people's court. Of course, in the recovery stage, it is also necessary to consider and respect the judicial power of the people's courts. According to Article 27 of the Minutes of the First Circuit Court of the Supreme People's Court on Several Issues Concerning the Application of Administrative Trial Law, "If the land has been idle for more than two years before the seizure, the administrative organ may recover the land use right without compensation. However, government agencies and units shall settle the debts and interest on the seized land."

Measures for Disposal of Idle Land

Article 2 The term "idle land" as mentioned in these Measures refers to the state-owned construction land that has not started development for one year in excess of the paid use contract or allocation decision for the use of state-owned construction land.

State-owned construction land that has started development but the area of development and construction land accounts for less than 1/3 of the total area of development and construction land to be started, or the amount of investment accounts for less than 25% of the total investment, and the development and construction of state-owned construction land that has been suspended for one year can also be identified as idle land.

Article 14 In addition to the circumstances specified in Article 8 of these Measures, idle land shall be handled in the following ways:

If the (I) has not started construction and development for one year, the municipal or county land and resources department shall, after reporting to the people's government at the same level for approval, issue a "decision on the collection and payment of land idle fees" to the owner of the right to the use of state-owned construction land, and collect and pay the land idle fees in accordance with the 20% of the land transfer or allocation price. The land idle fee shall not be included in the production cost;

If the (II) has not started construction and development for two years, the municipal and county land and resources departments shall, in accordance with the provisions of Article 37 of the the People's Republic of China Land Management Law and Article 26 of the the People's Republic of China Urban Real Estate Management Law, after being approved by the people's government with the right of approval, issue a "decision on the recovery of the right to use state-owned construction land" to the holder of the right to use state-owned construction land, and recover the right to use state-owned construction land for free. If there is a mortgage on idle land, it shall be copied to the relevant land mortgagee at the same time.

Minutes of the Meeting of the First Circuit Court of the Supreme People's Court on Several Issues Concerning the Application of Administrative Trial Law

27. If the land has been idle for more than two years before the court seizure, is it legal for the administrative organ to recover the right to use the land.

Answer: If the land has been idle for more than two years before the court seals it up, the municipal and county people's governments have the right to recover the land use right free of charge. However, the people's government of the city or county that made the decision shall, by letter, request the relevant people's court to lift the seizure in a timely manner in accordance with the law. The condition for the people's court to lift the seizure in a timely manner should be that the government pays the corresponding debt and interest payments to the creditors and settles the debt on the seized land.

Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution by People's CourtsArticle 24 stipulates: "The transfer of property that has been sealed up, seized, or frozen by the person subject to execution, the creation of a burden of rights, or other acts that hinder execution, shall not be opposed to the person applying for execution. Where a third party, without the permission of the people's court, takes possession of the property sealed up, detained or frozen or performs other acts hindering the execution, the people's court may, on the application of the person applying for enforcement or ex officio, release his possession or remove his obstruction.

Reference Case 9. Supreme People's Court "Jixian Foreign Trade Livestock Production Company and Lingshui Li Autonomous County People's Government Administrative Order and Administrative Confirmation Appeal Case" [(2015) Hangti Zi No. 27]]

The Court held that ...... Jixian County Livestock Production Company argued that the reason for the land resumption decision was that the land involved had not been developed for more than two years because the land involved had been idle, but it was based on the provisions of the first paragraph of Article 58 of the Land Administration Law, the land involved in the case was recovered for reasons of public interest, so the decision was incorrectly applied. The land involved in the case is in line with two situations of repossession at the same time. Because the idle land is recovered, the land is recovered free of charge, and the land is recovered with compensation according to the provisions of Article 58 of the Land Management Law. Choosing to recover the land for reasons of public interest is more conducive to the interests of the relative person of the administrative act, Jixian Livestock Production Company. Therefore, based on the fact that the recovery of the land involved in the case is in the public interest of the development and construction of the pilot area, the Lingshui County government finally made a decision to recover the land with compensation, which is not only more beneficial to the interests of Jixian Livestock Company, but also in line with the applicable conditions stipulated in Article 58 of the Land Management Law. Jixian Animal Products Company's claim that the Lingshui County Government's recovery of the land involved in the case in accordance with Article 58 of the Land Management Law is an applicable legal error cannot be established.

Jixian Animal Production Company also claimed that the land involved in the case was actually used in the pilot area before the Lingshui County government made the "Land Harvest Decision". This "use first and then harvest" approach also proves that the "Land Harvest Decision" is illegal. After the release of the detailed rules for the implementation of the decision of the pilot pilot area on January 11, 2012, the pilot area made an overall plan for the land use, including the land involved in the case, and part of the land involved in the case was used to build Wenli Landscape Avenue in the pilot area. It is true that the time of the Land resumption decision is later than the time of the actual land use in the pilot area, but, as mentioned above, the Land resumption decision itself determines that the factual evidence is sufficient and the applicable law is correct, and the time of the Land resumption decision does not affect the legitimacy of the Land resumption decision itself.

The "Land Resume Decision" advocated by Jixian Livestock Production Company is two independent acts of the "Land Resume Decision" that have already used the relevant land in the pilot area before making the "Land Resume Decision" in this case. However, the legality of the land use behavior in the pilot area before making the "Land Resume Decision" is not within the scope of review in this case, and its legality does not affect the determination of the legality of the "Land Resume Decision.

Jixian Animal Products Company claimed that the land involved in the case was in the people's court's investigation period at that time, and the Lingshui County Government's "Land Reclamation Decision" violated the provisions of the "Seizure Approval" and was an error in the application of law. First of all, in accordance with the provisions of Articles 52 and 53 of the Administrative Litigation Law, the review of the legality of administrative acts shall be based on laws and regulations (administrative regulations and local regulations) and refer to regulations. The above-mentioned "seal up approval" is only a departmental normative document and is not the basis for examining the legality of administrative acts, so there is nothing wrong with the original judgment not taking this as the basis for examining the legality of administrative acts in this case. Secondly, according to the announcement of the Ministry of Land and Resources on the publication of the catalogue of abolished or invalid normative documents on December 18, 2010, the seal-up reply has expired in 2010, and it cannot be used as the basis for determining the legality of the Land resumption decision in this case. Third, the first paragraph of Article 13 of the "Decision on Suspension and Suspension of Construction" formulated by the Standing Committee of the Hainan Provincial People's Congress stipulates: "The land that has not been developed for two years at the time of seizure and the total investment of the project that has not been completed for two years The land for suspension and suspension of construction projects shall be decided by the people's government of the city, county, or autonomous county to recover the land use right free of law, the people's government of the city, county, or autonomous county that made the decision shall request the relevant people's court to lift the seizure in a timely manner in accordance with the law." According to this regulation, the land involved in the case has been idle for more than two years when it was sealed up, and the Lingshui County government can decide to recover the land use right free of charge, and at the same time, it will ask the people's court to lift the seizure.

The seizure of land is a protective measure made by the judicial organ to ensure the execution of the case, and the decision to repossess land is an administrative decision made by the administrative organ on the basis of the corresponding facts and laws, which are the application of judicial power and administrative power respectively, and the exercise of the two powers should cooperate with and respect each other. Judicial power cannot interfere with the exercise of administrative power. In this case, judicial preservation measures do not affect the legality of the Land Receipt Decision itself. Therefore, Jixian Animal Production Company claims that because the land involved in the case was seized by the people's court, it cannot be recovered. It lacks the corresponding legal basis and the court does not support it.

Case 10.(2022) Jin 0104 Zhiyi No. 172, Xiqing Branch of Tianjin Planning and Natural Resources Bureau, Tianjin Nankai Asset Management and Operation Co., Ltd. and other housing sales contract disputes execution objection execution rulings

The court held that the seizure of land is a protective measure made by the judicial organ to ensure the execution of the case, and the decision to reclaim land is an administrative decision made by the administrative organ on the basis of the corresponding facts and laws, which are the application of judicial power and administrative power respectively, and the exercise of the two powers should cooperate with and respect each other.

As far as this case is concerned, the court made a judicial seizure ruling first. As an administrative agency, the Xiqing Branch of the Tianjin Municipal Planning and Natural Resources Bureau should respect and implement the effective ruling of the people's court, and should not notify the people's court without writing to the people's court or properly Handling the debts on the land involved, the "Decision on Recovering the Right to Use State-owned Construction Land" was made on September 7, 2021. The withdrawal decision is an administrative act made by the Xiqing Branch of the Tianjin Municipal Planning and Natural Resources Bureau on the basis of administrative authority, and does not mean that it has the right of civil entity that can prevent the transfer and delivery of the subject matter. The dissident, the Xiqing Branch of the Tianjin Municipal Bureau of Planning and Natural Resources, cannot raise an objection to the execution of the land seized by the court in accordance with the law on the grounds of its administrative actions.

Therefore, the objection application filed by the Tianjin Municipal Planning and Natural Resources Bureau Xiqing Branch does not fall within the scope of acceptance of the execution objection case. Because it does not meet the acceptance conditions, in accordance with Article 2 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, the objection raised by the Xiqing Branch of the Tianjin Municipal Planning and Natural Resources Bureau shall be ruled to reject the application.

This paper does not discuss the issue of applying to the people's court to dispose of the land use right that has been mortgaged and the administrative organ's decision to recover. However, according to the provisions of the Supreme People's Court (2023) No. 33, the mortgagee has the right to state, defend and apply for a hearing on the recovery decision.

Relevant provisions: Reply No. 33 of the Administrative Division of the Supreme People's Court on the legal nature of the free recovery of land use rights and other related issues. 2023

four legislative bureau of the ministry of justice:

Your "Request for Comments on Issues Related to the Free Recovery of Idle Land Use Rights" has been received. After study, put forward the following opinions:

The decision of the 1. administrative organ to recover the idle land use right free of charge is aimed at the situation that the state-owned land use right holder has not started the development for more than two years beyond the commencement date stipulated in the transfer contract, combined with Article 2 of the the People's Republic of China Administrative Punishment Law and Article 5 of the former State Land Administration's "opinions on determining the legal nature of the administrative decision on the recovery of land use right" (1997), we are inclined that the act is an administrative penalty.

2. person who obtains the mortgage right of idle land according to law is the interested party of the act of recovering the right to use idle land free of charge. According to the provisions of articles 5 and 20 of the State Council's outline for comprehensively promoting the implementation of administration according to law (2004) and articles 73 and 74 of the administrative procedure provisions of Hunan Province, he shall enjoy the right to state, defend and apply for a hearing in accordance with the law.