Real estate perspective: Is punitive damages in the Consumer Rights Protection Law applicable to commercial housing sales disputes?
Published:
2021-11-26
Case Introduction Lu mou and Liang mou bought a shop from a real estate company in Weihai. when the company sold the shop involved in the case, they informed Liang mou and Lu mou that the house involved in the case was on the first floor and shared a parcel area of 27910 square meters. they agreed in the commercial housing presale contract that the shared parcel was weigao guoyong (2012) no 40, and the parcel area use right was 27910 square meters, which was included in the floor area ratio and was normal property right. However, the real estate registration certificate of the shop involved in the case shows that the common parcel area is 6734 square meters, and the floor 1 (underground right type: underground space construction land use right) is located. Lu mou and Liang mou believe that the company knows that the shop involved in the case belongs to the semi-basement and is a supporting facility room, which is not included in the floor area ratio, and deliberately sells the shop involved in the case to the normal floor area ratio commercial room, which is fraudulent sales, the company is required to be liable for damages in accordance with the provisions of the Consumer Rights Protection Law. focus of controversy Whether the legal relationship of commercial housing sales contract is regulated by the Law on the Protection of Consumer Rights and Interests court decision The court of second instance held that Article 2 of the law on the protection of consumers' rights and interests stipulates that if consumers need to purchase, use goods or receive services for daily consumption, their rights and interests shall be protected by this law; if there are no provisions in this law, they shall be protected by other relevant laws and regulations. The commercial housing presale contract and supplementary agreement clearly stipulate that the use of the shop involved in the case is commercial. Liang and Lu entrust the commercial company designated by the company to operate and manage the shop. Therefore, the shop involved in the case is used for operation rather than living consumption needs. Liang and Lu did not purchase the shop involved in the case based on living consumption needs, and were not "consumers" stipulated in the Consumer Rights Protection Law ", therefore, the legal relationship of the commercial housing presale contract involved in the case is not adjusted by the Consumer Rights Protection Law. And for the legal application of commercial housing presale contract disputes, the Supreme People's Court has formulated a special judicial interpretation, and the relevant provisions of the "Judicial Interpretation of Commercial Housing Sales" should be applied in this case. Lawyer's opinion Our lawyers believe that the punitive damages in the Consumer Rights Protection Law should not be applied to commercial housing sales disputes. First, Article 2 of the Law on the Protection of Consumer Rights and Interests "Consumers need to purchase, use commodities or receive services for their daily consumption, and their rights and interests are protected by this law..." According to the legislative principles and purposes of the Law on the Protection of Consumer Rights and Interests, the "commodities" in this article refer to the commodities that belong to "movable property" for daily consumption, and commercial housing as real estate is a special property, it does not fall within the scope of "goods" adjusted by the Consumer Rights Protection Law. The "product" mentioned in the Product Quality Law, which is at the same level and of the same type as the Consumer Rights Protection Law, does not include commercial housing, etc. In terms of the scope of adjustment, the concept of "commodity" used in the Consumer Rights Protection Law is the same as the concept of "product" used in the Product Quality Law, and disputes over the sale of commercial housing do not apply to the Product Quality Law, the Consumer Protection Act should also not apply. Second, the price of commercial housing is expensive, and it is often millions. The application of the "Consumer Rights Protection Law", especially the application of Article 55 of the "Consumer Rights Protection Law", "If a business operator commits fraudulent acts in providing goods or services, it shall be in accordance with the consumer The request increases the compensation for the losses suffered, increasing the amount of compensation is three times the price of the consumer's purchase of goods or the cost of receiving services." Dealing with commercial housing sales disputes will inevitably lead to an imbalance in the rights and obligations of the operator and the consumer, leading to a serious tilt in the interests of both parties, which violates the principle of fairness and justice. Third, with the continuous improvement of my country's real estate registration system, the implementation of the model text of the commercial housing sales contract, and the requirements of the online signing and filing system, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes (2020 Amendment) The original judicial interpretation of Articles 8 and 9 of the commercial housing sales contract in which the seller maliciously breaches and frauds, resulting in the buyer's inability to obtain the five situations, therefore, for the breach of contract in the sale of commercial housing, the original punitive damages that "the seller can be requested to bear no more than double the paid purchase price" are no longer applicable, and the breach of contract in the sale of commercial housing can be resolved by applying the relevant legal provisions and judicial interpretations of the contract, such as the contract code of the Civil Code and the interpretation of the Supreme People's Court on the application of laws in the trial of commercial housing sales contract disputes, therefore, punitive damages in the Consumer Protection Law should not be applied when disputes over the sale of commercial housing arise. Related Cases (I) Yuan Mou and Changzhou Real Estate Development Co., Ltd. Commercial Housing presale Contract Dispute- (2020) Su 04 Min Shen No. 91 The "Consumer Rights Protection Law" stipulates that if operators provide goods or services fraudulently, consumers can claim punitive damages, but it does not stipulate whether the sale of commercial housing falls within the scope of the law. Punitive damages for the sale of commercial housing are not typical product fraud and service fraud, but mainly because the seller intentionally or violates the principle of good faith, resulting in the subject matter can not be delivered or the subject matter has some defects, or deliberately conceal the true situation, deceive consumers. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes clearly stipulates the responsibility of developers for fraudulent acts. Therefore, the judicial interpretation should be applied to cases involving fraud in commercial housing sales disputes. Provisions. Therefore, Yuan argued that the provisions of punitive damages in the the People's Republic of China Consumer Rights and interests Protection Law should be applied in this case, which cannot be established in accordance with the law. (II) Yang Mou and Chongqing Real Estate Development Co., Ltd. Housing Purchase and Sales Contract Dispute- (2020) Yu 01 Min Zhong No. 4136 In this case, the two parties are in a contract for the sale of commercial housing, and Yang also applied for the termination of the contract. In this case, the relevant laws and regulations and judicial interpretation of the contract for the sale of commercial housing shall apply. Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "In case of any of the following circumstances, the purpose of the commercial housing sales contract cannot be achieved, the buyer who cannot obtain the house may request to terminate the contract, return the paid house purchase price and interest, and compensate for losses, and may request the seller to bear no more than double the payment of the purchase price: (a) after the conclusion of the contract for the sale of commercial housing, the seller did not inform the buyer and mortgaged the house to a third party; (II) after the conclusion of the contract for the sale of commercial housing, the seller sold the house to a third party. "Article 9 stipulates:" When the seller enters into a commercial housing sales contract, if one of the following circumstances occurs, resulting in the contract being invalid or canceled or terminated, the buyer may request the return of the paid house purchase price and interest, compensation for losses, and may request the seller to bear the liability of not more than double the paid house purchase price: (1) deliberately concealing the fact that the commercial housing presale license certificate has not been obtained or providing false commercial housing presale license certificate; (II) deliberately conceal the fact that the house sold has been mortgaged; (III) deliberately conceal the fact that the house sold has been sold to a third party or that the house has been resettled for demolition compensation. "Accordingly, in the commercial housing sales contract relationship, the buyer requires the seller to bear the punitive compensation liability, should comply with one of the aforementioned provisions. Yang asked the developer to bear punitive liability on the grounds that the developer would sell the parking space that was judicially seized to it, which constituted fraud. However, when the two parties signed the "parking space confirmation letter", the developer did not have one of the circumstances stipulated in the judicial interpretation, and Yang's claim was not supported by the court.
Case Introduction
Lu mou and Liang mou bought a shop from a real estate company in Weihai. when the company sold the shop involved in the case, they informed Liang mou and Lu mou that the house involved in the case was on the first floor and shared a parcel area of 27910 square meters. they agreed in the commercial housing presale contract that the shared parcel was weigao guo yong (2012) no 40, and the parcel area use right was 27910 square meters, which was included in the floor area ratio and was normal property right. However, the real estate registration certificate of the shop involved in the case shows that the common parcel area is 6734 square meters, and the floor 1 (underground right type: underground space construction land use right) is located. Lu mou and Liang mou believe that the company knows that the shop involved in the case belongs to the semi-basement and is a supporting facility room, which is not included in the floor area ratio, and deliberately sells the shop involved in the case to the normal floor area ratio commercial room, which is fraudulent sales, the company is required to be liable for damages in accordance with the provisions of the Consumer Rights Protection Law.
focus of controversy
Whether the legal relationship of commercial housing sales contract is regulated by the Law on the Protection of Consumer Rights and Interests
court decision
The court of second instance held that Article 2 of the law on the protection of consumers' rights and interests stipulates that if consumers need to purchase, use goods or receive services for daily consumption, their rights and interests shall be protected by this law; if there are no provisions in this law, they shall be protected by other relevant laws and regulations. The commercial housing presale contract and supplementary agreement clearly stipulate that the use of the shop involved in the case is commercial. Liang and Lu entrust the commercial company designated by the company to operate and manage the shop. Therefore, the shop involved in the case is used for operation rather than living consumption needs. Liang and Lu did not purchase the shop involved in the case based on living consumption needs, and were not "consumers" stipulated in the Consumer Rights Protection Law ", therefore, the legal relationship of the commercial housing presale contract involved in the case is not adjusted by the Consumer Rights Protection Law. And for the legal application of commercial housing presale contract disputes, the Supreme People's Court has formulated a special judicial interpretation, and the relevant provisions of the "Judicial Interpretation of Commercial Housing Sales" should be applied in this case.
Lawyer's opinion
Our lawyers believe that the punitive damages in the Consumer Rights Protection Law should not be applied to commercial housing sales disputes.
First,Article 2 of the Law on the Protection of Consumers' Rights and Interests "Consumers need to purchase, use commodities or receive services for their daily consumption, and their rights and interests are protected by this law..." According to the legislative principles and purposes of the Law on the Protection of Consumers' Rights and Interests, the "commodity" in this article refers to the commodities that belong to "movable property" for daily consumption, and commercial housing as real estate is a special property, it does not fall within the scope of "goods" adjusted by the Consumer Rights Protection Law. The "product" mentioned in the Product Quality Law, which is at the same level and of the same type as the Consumer Rights Protection Law, does not include commercial housing, etc. In terms of the scope of adjustment, the concept of "commodity" used in the Consumer Rights Protection Law is the same as the concept of "product" used in the Product Quality Law, and disputes over the sale of commercial housing do not apply to the Product Quality Law, the Consumer Protection Act should also not apply.
Second,The price of commercial housing is expensive and often millions. The application of the Law on the Protection of Consumer Rights and Interests, especially the application of Article 55 of the Law on the Protection of Consumer Rights and Interests, "If a business operator commits fraudulent acts in providing goods or services, it shall increase the compensation for the losses suffered by the consumer according to the requirements of the consumer, and the amount of compensation shall be three times the price of the consumer for purchasing goods or receiving services, this has led to a serious tilt of the interests of both sides and violated the principle of fairness and justice.
Third,With the continuous improvement of my country's real estate registration system, the implementation of the model text of the commercial housing sales contract, and the requirements of the online signing and filing system, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes (2020 Amendment) deleted the original judicial Interpretation Article 8 and Article 9 in the commercial housing sales contract where the seller maliciously breaches and frauds, resulting in the buyer's inability to obtain housing, for the breach of contract in the sale of commercial housing, the original punitive damages that "the seller can be requested to bear no more than double the paid purchase price" are no longer applicable, and the breach of contract in the sale of commercial housing can be resolved by applying the relevant legal provisions and judicial interpretations of the contract, such as the contract code of the Civil Code and the interpretation of the Supreme People's Court on the application of laws in the trial of commercial housing sales contract disputes, therefore, punitive damages in the Consumer Protection Law should not be applied when disputes over the sale of commercial housing arise.
Related Cases
(I) Yuan Mou and Changzhou Real Estate Development Co., Ltd. Commercial Housing presale Contract Dispute- (2020) Su 04 Min Shen No. 91
The "Consumer Rights Protection Law" stipulates that if operators provide goods or services fraudulently, consumers can claim punitive damages, but it does not stipulate whether the sale of commercial housing falls within the scope of the law. Punitive damages for the sale of commercial housing are not typical product fraud and service fraud, but mainly because the seller intentionally or violates the principle of good faith, resulting in the subject matter can not be delivered or the subject matter has some defects, or deliberately conceal the true situation, deceive consumers. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes clearly stipulates the responsibility of developers for fraudulent acts. Therefore, the judicial interpretation should be applied to cases involving fraud in commercial housing sales disputes. Provisions. Therefore, Yuan argued that the provisions of punitive damages in the the People's Republic of China Consumer Rights and interests Protection Law should be applied in this case, which cannot be established in accordance with the law.
(II) Yang Mou and Chongqing Real Estate Development Co., Ltd. Housing Purchase and Sales Contract Dispute- (2020) Yu 01 Min Zhong No. 4136
In this case, the two parties are in a contract for the sale of commercial housing, and Yang also applied for the termination of the contract. In this case, the relevant laws and regulations and judicial interpretation of the contract for the sale of commercial housing shall apply. Article 8 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates: "In case of any of the following circumstances, the purpose of the commercial housing sales contract cannot be achieved, the buyer who cannot obtain the house may request to terminate the contract, return the paid house purchase price and interest, and compensate for losses, and may request the seller to bear no more than double the payment of the purchase price: (a) after the conclusion of the contract for the sale of commercial housing, the seller did not inform the buyer and mortgaged the house to a third party; (II) after the conclusion of the contract for the sale of commercial housing, the seller sold the house to a third party. "Article 9 stipulates:" When the seller enters into a commercial housing sales contract, if one of the following circumstances occurs, resulting in the contract being invalid or canceled or terminated, the buyer may request the return of the paid house purchase price and interest, compensation for losses, and may request the seller to bear the liability of not more than double the paid house purchase price: (1) deliberately concealing the fact that the commercial housing presale license certificate has not been obtained or providing false commercial housing presale license certificate; (II) deliberately conceal the fact that the house sold has been mortgaged; (III) deliberately conceal the fact that the house sold has been sold to a third party or that the house has been resettled for demolition compensation. "Accordingly, in the commercial housing sales contract relationship, the buyer requires the seller to bear the punitive compensation liability, should comply with one of the aforementioned provisions. Yang asked the developer to bear punitive liability on the grounds that the developer would sell the parking space that was judicially seized to it, which constituted fraud. However, when the two parties signed the "parking space confirmation letter", the developer did not have one of the circumstances stipulated in the judicial interpretation, and Yang's claim was not supported by the court.
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