Viewpoint | Real Estate Bankruptcy Administrator's Determination of Claims Enjoyable by Owners of Housing- (2021) Reflections on the Case of Supreme Law Min Re -99
Published:
2021-11-29
Brief 1. of the case On May 24, 2017, Yibin Intermediate People's Court accepted the application of Chengdu Office of Great Wall Company to execute notarized creditor's rights documents such as Yinwu Company and Dingli Land, and sealed up the house involved in the case on June 5, 2017. On November 29, 2017, the Chengdu Office of Great Wall Company and Hengzhen Company signed a "Debt Transfer Agreement", and the Chengdu Office of Great Wall Company transferred the debt of this case to Hengzhen Company. On April 3, 2018, Yibin Intermediate People's Court ruled that the company was the executor of the execution case No. 156 of (2017) Chuan 15. During the execution, Feng Tianguo raised an execution objection on the grounds that he purchased the house involved in the case on January 9, 2017, demanding to stop the execution of the house. After review by the Yibin Intermediate People's Court, it ruled to suspend the execution of the mortgaged house involved in the case, but Hengzhen Company refused to accept it and filed a first-instance lawsuit with the Yibin Intermediate People's Court in accordance with the law. After that, the Yibin Intermediate People's Court ruled to continue the execution of the house involved in the case. Feng Tianguo refused to accept the above-mentioned civil judgment of the first instance made by the Yibin Intermediate people's Court and appealed to the Sichuan High Court, requesting to revoke the judgment of the first instance in accordance with the law and not to enforce the mortgaged house involved in the case. Feng Tianguo refused to accept the above-mentioned civil judgment made by the Sichuan Higher People's Court and applied to the Supreme People's Court for a retrial according to law, the judgment revoked the Sichuan Higher People's Court (2019) Chuanminzong No. 859 Civil Judgment and Sichuan Yibin Intermediate People's Court (2018) Chuan15 Minchu No. 181 Civil Judgment and rejected Hengzhen Company's claims. How to determine the creditor's rights enjoyed by the 2. real estate bankruptcy administrator. There are a large number of real estate bankruptcy cases, how to determine the housing debt holders to enjoy the claims is the administrator must face and solve the problem. Whether this problem is solved or not will inevitably affect the formulation of the later reorganization plan, the arrangement of the debt settlement plan and the planning of the investor's investment plan. Therefore, in combination with the civil judgment of the Supreme People's Court (2021) Supreme Law Minzai No. 99 case, the lawyer believes that when the real estate bankruptcy administrator determines the creditor's rights of the creditor with the house against the creditor, he should first examine whether the creditor with the house against the creditor can be excluded from the court's enforcement, and then confirm the ownership of the house involved by the creditor with the house against the creditor and the nature and amount of the creditor's rights. (I) the right holder can exclude the constituent elements of court enforcement. With reference to the provisions of the Supreme People's Court (2021) Supreme Law Minzai No. 99 Civil Judgment and Article 28 of the Provisions on Objection and Reconsideration of Execution, if the obligee can exclude the court's enforcement, the following four requirements shall be met at the same time: 1. Before the people's court takes compulsory measures such as seizure, the owner of the mortgage right has signed a legal and valid written housing sales contract with the bankrupt enterprise (including the signing of a mortgage agreement or a commercial housing sales contract) and the purpose of signing the mortgage agreement is to obtain the ownership of real estate. However, if there is a reverse signing of a housing debt-to-debt agreement, the sale of a house is actually a concession and guarantee, the purpose of signing a housing debt-to-debt agreement is to evade debt or malicious collusion to harm the interests of a third party, etc., it does not belong to "signing a legal and effective written housing sales contract". 2. The real estate has been legally possessed before the people's court seizes and other compulsory measures. The legal possession of real estate by the owner of the mortgage shall generally be proved by evidence materials such as the delivered house key, the renovated occupancy or decoration deposit payment certificate, the handover transfer form or the handover acceptance certificate or other handover certification materials, the property service contract and property management fee payment certificate, the water and electricity contract and utilities payment certificate, the external lease contract of the house and the rent collection certificate. 3. The full price of the house has been paid. In view of the particularity of house-to-house debt repayment, the lawyer believes that a stricter review standard should be established for the house-to-house debt right holder in the payment of the house price, that is, the house-to-house debt right holder should have paid the full house price by the house-to-house debt repayment method. At the same time, before the house-to-house debt right holder and the enforced person sign the house-to-to-to-to-to-to-debt repayment agreement, the right should meet the following three conditions: (1) A claim for a mortgage must be a true, legal and valid claim, and a mortgage agreement should be a legally valid agreement. The creditor's right to repay the debt with the house cannot be a fictitious creditor's right, but a creditor's right based on the real creditor's right and debt relationship; the creditor's right to repay the debt with the house cannot be an illegal creditor's right arising from illegal acts such as pornography, drugs, gambling and disturbing social order; the agreement to repay the debt with the house should be a legally effective agreement, which does not conform to the relevant provisions of the civil code on the invalidity or validity of the contract. (2) A mortgage-to-debt claim shall be a maturing and determinate claim. Only due and determined claims can determine the specific claims involved in the mortgage debt and the specific amount of claims and debts, and can avoid the invalidation of the mortgage debt agreement due to the violation of the principle of property law and the rules prohibiting the transfer/pledge. (3) The amount of the debt against the house cannot be lower than the average market price of similar properties in the same lot at the time of the signing of the debt-to-house agreement. If the purpose of signing the house-to-debt agreement between the owner of the house-to-debt and the bankrupt enterprise is to evade the debt or maliciously collude to harm the interests of a third party, then the house price determined by the above-mentioned house-to-debt agreement must be far lower than the actual price of the house, so the lawyer thinks that the house price agreed in the house-to-debt agreement should be limited. 4. Not for their own reasons did not handle the transfer registration. With reference to the provisions of Article 127 of the Nine People's Minutes, as long as the owner of the mortgage debt has submitted the transfer registration materials to the housing registration institution, or made a request to the bankrupt enterprise for the transfer registration and other positive acts, it can be considered that the transfer registration has not been handled for its own reasons. The (II) manager's identification and treatment of the house and claims involved in the right holder of the house-to-house debt. The Supreme People's Court once believed in some cases such as (2016) Supreme Law Minshen No. 3620 (2017) Supreme Law Minzhong No. 354 and (2017) Supreme Law Minzhong No. 356 that the purpose of the debt repayment agreement is to eliminate the creditor's claim. It is not a simple house sale and cannot reflect the true intention of both parties to buy and sell the house. It is an alternative way for the debtor to perform the debt. Before the registration of ownership change is not completed, the right holder only enjoys the right of claim and does not have the right of expectation of property rights, so based on the equality of claims, the right holder of the right to set off the debt should not be given priority over other creditors. However, in practice, the purpose of signing the agreement of house-to-house debt relief is to obtain the ownership of real estate, and they have actually occupied the house involved in the case, and have paid all the house money by means of debt relief except cash payment and bank transfer, which has the nature of quasi-real right and should be protected by the same law as a general buyer, and taking into account the existence of a large number of housing-to-debt situations in judicial practice, in order to avoid causing unnecessary social and livelihood problems and a large number of litigation cases, lawyers believe that the administrator's determination and handling of the claims involved in housing-to-debt rights holders are as follows: 1. If the right holder of the house-to-house debt has the four constituent elements that exclude the court's enforcement, the administrator may determine that the house involved in the house-to-house debt holder does not belong to the assets of the bankrupt enterprise, and assist the house-to-house debt holder in the subsequent normal handling of the net signing procedures and real estate registration procedures for the house in question. However, the manager should be stricter and more cautious about whether the obligee of the house-to-house debt can exclude the constituent elements of the court's enforcement, inform the creditors of the legal responsibility of falsely reporting the creditor's rights, and try to avoid the situation that the bankrupt enterprise signs the house-to-house debt agreement to damage other creditors by evading or maliciously colluding to damage the interests of the third party. 2. If the obligee of the house-to-house debt does not have the four constituent elements at the same time to exclude the court from enforcing the law, the manager may determine that the house involved in the obligee of the house-to-house debt belongs to the assets of the bankrupt enterprise, notify the obligee of the house-to-house debt to supplement the declaration of creditor's rights and supplementary evidence, and confirm the nature and amount of the above-mentioned creditor's rights according to the actual situation of the creditor's rights.
Brief 1. of the case
On May 24, 2017, Yibin Intermediate People's Court accepted the application of Chengdu Office of Great Wall Company to execute notarized creditor's rights documents such as Yinwu Company and Dingli Land, and sealed up the house involved in the case on June 5, 2017.
On November 29, 2017, the Chengdu Office of Great Wall Company and Hengzhen Company signed a "Debt Transfer Agreement", and the Chengdu Office of Great Wall Company transferred the debt of this case to Hengzhen Company.
On April 3, 2018, Yibin Intermediate People's Court ruled that the company was the executor of the execution case No. 156 of (2017) Chuan 15. During the execution, Feng Tianguo raised an execution objection on the grounds that he purchased the house involved in the case on January 9, 2017, demanding to stop the execution of the house.
After review by the Yibin Intermediate People's Court, it ruled to suspend the execution of the mortgaged house involved in the case, but Hengzhen Company refused to accept it and filed a first-instance lawsuit with the Yibin Intermediate People's Court in accordance with the law. After that, the Yibin Intermediate People's Court ruled to continue the execution of the house involved in the case.
Feng Tianguo refused to accept the above-mentioned civil judgment of the first instance made by the Yibin Intermediate people's Court and appealed to the Sichuan High Court, requesting to revoke the judgment of the first instance in accordance with the law and not to enforce the mortgaged house involved in the case.
Feng Tianguo refused to accept the above-mentioned civil judgment made by the Sichuan Higher People's Court and applied to the Supreme People's Court for a retrial according to law, the judgment revoked the Sichuan Higher People's Court (2019) Chuanminzong No. 859 Civil Judgment and Sichuan Yibin Intermediate People's Court (2018) Chuan15 Minchu No. 181 Civil Judgment and rejected Hengzhen Company's claims.
How to determine the creditor's rights enjoyed by the 2. real estate bankruptcy administrator.
There are a large number of real estate bankruptcy cases, how to determine the housing debt holders to enjoy the claims is the administrator must face and solve the problem. Whether this problem is solved or not will inevitably affect the formulation of the later reorganization plan, the arrangement of the debt settlement plan and the planning of the investor's investment plan. Therefore, in combination with the civil judgment of the Supreme People's Court (2021) Supreme Law Minzai No. 99 case, the lawyer believes that when the real estate bankruptcy administrator determines the creditor's rights of the creditor with the house against the creditor, he should first examine whether the creditor with the house against the creditor can be excluded from the court's enforcement, and then confirm the ownership of the house involved by the creditor with the house against the creditor and the nature and amount of the creditor's rights.
(I) the right holder can exclude the constituent elements of court enforcement.
With reference to the provisions of the Supreme People's Court (2021) Supreme Law Minzai No. 99 Civil Judgment and Article 28 of the Provisions on Objection and Reconsideration of Execution, if the obligee can exclude the court's enforcement, the following four requirements shall be met at the same time:
1. Before the people's court takes compulsory measures such as seizure, the owner of the mortgage right has signed a legal and valid written housing sales contract with the bankrupt enterprise (including the signing of a mortgage agreement or a commercial housing sales contract) and the purpose of signing the mortgage agreement is to obtain the ownership of real estate.However, if there is a reverse signing of a housing debt-to-debt agreement, the sale of a house is actually a concession and guarantee, the purpose of signing a housing debt-to-debt agreement is to evade debt or malicious collusion to harm the interests of a third party, etc., it does not belong to "signing a legal and effective written housing sales contract".
2. The real estate has been legally possessed before the people's court seizes and other compulsory measures.The legal possession of real estate by the owner of the mortgage shall generally be proved by evidence materials such as the delivered house key, the renovated occupancy or decoration deposit payment certificate, the handover transfer form or the handover acceptance certificate or other handover certification materials, the property service contract and property management fee payment certificate, the water and electricity contract and utilities payment certificate, the external lease contract of the house and the rent collection certificate.
3. The full price of the house has been paid.In view of the particularity of house-to-house debt repayment, the lawyer believes that a stricter review standard should be established for the house-to-house debt right holder in the payment of the house price, that is, the house-to-house debt right holder should have paid the full house price by the house-to-house debt repayment method. At the same time, before the house-to-house debt right holder and the enforced person sign the house-to-to-to-to-to-to-debt repayment agreement, the right should meet the following three conditions:
(1) A claim for a mortgage must be a true, legal and valid claim, and a mortgage agreement should be a legally valid agreement. The creditor's right to repay the debt with the house cannot be a fictitious creditor's right, but a creditor's right based on the real creditor's right and debt relationship; the creditor's right to repay the debt with the house cannot be an illegal creditor's right arising from illegal acts such as pornography, drugs, gambling and disturbing social order; the agreement to repay the debt with the house should be a legally effective agreement, which does not conform to the relevant provisions of the civil code on the invalidity or validity of the contract.
(2) A mortgage-to-debt claim shall be a maturing and determinate claim. Only due and determined claims can determine the specific claims involved in the mortgage debt and the specific amount of claims and debts, and can avoid the invalidation of the mortgage debt agreement due to the violation of the principle of property law and the rules prohibiting the transfer/pledge.
(3) The amount of the debt against the house cannot be lower than the average market price of similar properties in the same lot at the time of the signing of the debt-to-house agreement. If the purpose of signing the house-to-debt agreement between the owner of the house-to-debt and the bankrupt enterprise is to evade the debt or maliciously collude to harm the interests of a third party, then the house price determined by the above-mentioned house-to-debt agreement must be far lower than the actual price of the house, so the lawyer thinks that the house price agreed in the house-to-debt agreement should be limited.
4. Not for their own reasons did not handle the transfer registration.With reference to the provisions of Article 127 of the Nine People's Minutes, as long as the owner of the mortgage debt has submitted the transfer registration materials to the housing registration institution, or made a request to the bankrupt enterprise for the transfer registration and other positive acts, it can be considered that the transfer registration has not been handled for its own reasons.
The (II) manager's identification and treatment of the house and claims involved in the right holder of the house-to-house debt.
The Supreme People's Court once believed in some cases such as (2016) Supreme Law Minshen No. 3620 (2017) Supreme Law Minzhong No. 354 and (2017) Supreme Law Minzhong No. 356 that the purpose of the debt repayment agreement is to eliminate the creditor's claim. It is not a simple house sale and cannot reflect the true intention of both parties to buy and sell the house. It is an alternative way for the debtor to perform the debt. Before the registration of ownership change is not completed, the right holder only enjoys the right of claim and does not have the right of expectation of property rights, so based on the equality of claims, the right holder of the right to set off the debt should not be given priority over other creditors. However, in practice, the purpose of signing the agreement of house-to-house debt relief is to obtain the ownership of real estate, and they have actually occupied the house involved in the case, and have paid all the house money by means of debt relief except cash payment and bank transfer, which has the nature of quasi-real right and should be protected by the same law as a general buyer, and taking into account the existence of a large number of housing-to-debt situations in judicial practice, in order to avoid causing unnecessary social and livelihood problems and a large number of litigation cases, lawyers believe that the administrator's determination and handling of the claims involved in housing-to-debt rights holders are as follows:
1. If the right holder of the house-to-house debt has the four constituent elements that exclude the court's enforcement, the administrator may determine that the house involved in the house-to-house debt holder does not belong to the assets of the bankrupt enterprise, and assist the house-to-house debt holder in the subsequent normal handling of the net signing procedures and real estate registration procedures for the house in question. However, the manager should be stricter and more cautious about whether the obligee of the house-to-house debt can exclude the constituent elements of the court's enforcement, inform the creditors of the legal responsibility of falsely reporting the creditor's rights, and try to avoid the situation that the bankrupt enterprise signs the house-to-house debt agreement to damage other creditors by evading or maliciously colluding to damage the interests of the third party.
2. If the obligee of the house-to-house debt does not have the four constituent elements at the same time to exclude the court from enforcing the law, the manager may determine that the house involved in the obligee of the house-to-house debt belongs to the assets of the bankrupt enterprise, notify the obligee of the house-to-house debt to supplement the declaration of creditor's rights and supplementary evidence, and confirm the nature and amount of the above-mentioned creditor's rights according to the actual situation of the creditor's rights.
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