A preliminary exploration of the agreed discharge right after the developer assumes the stage guarantee responsibility.

Summary:Under the commercial housing presale system, before the ownership of the sold commercial housing is transferred, the developer often needs to provide periodic guarantee for the mortgage loan of the buyer in the loan bank, and will clearly stipulate in the purchase contract signed with the buyer that the developer assumes the guarantee responsibility. However, in the judicial practice, in addition to protecting the developer's right of recovery, does the people's court recognize the developer's above-mentioned agreed right of cancellation, especially in the case of pre-seizure of commercial housing, has become a widely controversial issue, this paper intends to start from the actual jurisprudence of the courts around the current, combined with the author's practice experience, on the specific circumstances, the developer to exercise the right to terminate the purchase contract related legal issues, to make a useful discussion.

Subject words:Cut-off, phased guarantee, agreed discharge right, pre-seizure.

It is a common practice for developers to provide periodic joint and several liability guarantee to loan banks for mortgage buyers, which is adapted to the commercial housing presale system. In the understanding and application of the judicial interpretation of the Supreme People's Court on the trial of disputes over commercial housing sales contracts compiled by the first civil trial court of the Supreme Court, it is also clearly put forward that "the agreement between banks and developers on periodic guarantee is voluntary, it may also be based on careful consideration of the balance of interests in the cooperation between the two parties, which is the result of full consultation between the parties and does not harm the interests of the state and society, and has nothing to do with the contractual will, the balance of interests of the parties and ethical standards, so there is no need for interference".
In terms of the legal basis of this model, it is based on the behavior of off-plan housing presale, which leads to the period from the entry into force of commercial housing sales contract and housing loan contract to the transfer registration of housing ownership to the buyer's name and formal mortgage registration. The ownership of the house still belongs to the developer who obtained the initial registration of the house based on legal construction. In this "special" period, the bank aims to reduce the risk of loan recovery, the initial owner of the house, the developer, is introduced into the loan contract as a stage guarantor, requiring the developer to provide a stage guarantee for the possible mortgage loan cut-off behavior of the buyer. Since the developer has already sold the house and recovered the house price, he must "additionally" assume the guarantee responsibility for the loan behavior of the bank from the opposite direction of the house purchase contract. Generally, it is clearly agreed in the terms of the house purchase contract that the developer will enjoy the corresponding right of recovery and the right to cancel the house purchase contract after fulfilling the obligation of compensation to the bank. This agreement also conforms to the legal basis of the developer as the property owner of the house at this stage, but in the trial practice, after the developer compensates the bank mortgage loan for the owner, it puts forward the claim of rescinding the purchase contract according to the agreed right of rescission, there are often many disputes, and now combined with the specific cases of trial practice in various places, the analysis and research are as follows, in order to be able to help the subsequent handling of relevant judicial disputes.

Several current opinions of the 1. on the proposal to terminate the contract for the sale of commercial housing after the developer assumes the phased joint and several guarantee responsibility to repay the bank loan on behalf of the buyer.
For developers based on the mortgage bank to repay the loan principal and interest, the prosecution claims to terminate its commercial housing sales contract with the buyer, there is a wide range of controversy in the current trial practice, the mainstream view is as follows:
(I) Support Contract Cancellation
Some local courts in Jiangsu, Fujian, Henan, Shaanxi, Shandong, Jiangxi, Chongqing, Sichuan, Guangxi and other provinces have held in relevant precedents that the "Commercial Housing Sales Contract" is the true intention of both parties, and it is valid in accordance with the law and should be protected by law. According to the contract, the buyer returned the housing loan in time according to the contract, but the buyer failed to perform the above-mentioned obligations according to the contract. Due to the default behavior of the buyer's overdue repayment of the loan, the loan bank recovered the loan principal and interest in advance. The developer assumed the phased joint guarantee responsibility to repay the loan principal and interest, penalty interest, compound interest, etc. on behalf of the buyer, and the developer exercised the right to terminate the contract, it is required to terminate the "commercial housing sales contract" signed by both parties and require the buyer to assist in handling the procedures of online registration and cancellation, which conforms to the legal provisions and should be supported.
(II) does not support termination of contract
In the relevant judgments, some local courts in Guizhou, Guangdong, Jiangsu, Sichuan and other provinces only found that the developer had the right of recovery against the buyer based on its guarantee responsibility, but did not support the developer's application to terminate the commercial housing sales contract. The specific reasons are summarized as follows:
1, the termination of the point of time: the parties to the sale of the contract obligations have been fulfilled, the buyer has paid all the purchase of the house, its contractual obligations have been fully fulfilled, so there is no time to terminate the contract conditions.
2, legal relations: although the buyer has not repaid the bank's mortgage loan default behavior, but the above-mentioned default behavior, is a violation of another loan contract contractual obligations.
3, the format clause: "commercial housing sales contract" and "contract supplementary agreement" are format contracts, the plaintiff as the provider of the format contract, did not take a reasonable way to draw the attention of the other party, the relevant agreement to terminate the right is "exclude the other party's main rights" clause, the clause is invalid.
4. The principle of fairness: the developer advocates the cancellation of the "Commercial Housing Sales Contract" and the cancellation of the record registration. The actual effect is equivalent to the buyer selling the house involved in the case to the developer at the original price. Judging by the common sense of the current transaction price in the commercial housing market, the buyer Will suffer huge losses.
5, rights protection channels: buyers overdue repayment of loans led to the developer to assume the responsibility of the guarantee, but it can be through the way of recovery to realize the rights.
6, the default situation: from the compensation amount and the total price of the ratio, the buyer did not pay the bank mortgage loan on time did not lead to the purpose of the contract can not be achieved, does not constitute a fundamental breach of contract.
(III) cautiously supports developers' right to rescind contracts
The view of more courts is to prudently support developers to terminate the purchase contract, such as the "Jinan Intermediate Court" case of overdue repayment of commercial housing "issued on October 24, 2018 in the public number of Jinan Intermediate Court to make a judgment! Buyers overdue repayment of loans, developers have the right to take back the house?!" Although the conclusion given is that "if the mortgage loan is overdue in the purchase of commercial housing, the developer should bear the liability for breach of contract, and the developer has the right to terminate the contract at the same time", but a careful study of its reasoning part can still understand the prudence of the referee. Jinan Intermediate People's Court believes that, first of all, it is necessary to review the validity of the relevant contract agreement from the perspective of standard terms, the developer must also fulfill the due notification obligations, and the buyer still fails to repay the loan on time, causing the loan bank to require the developer to assume the guarantee responsibility, the developer has the right to exercise the right to terminate the contract if the contract is met.

Several current opinions of the 2. on the developer's claim to terminate the contract for the sale of commercial housing in the case of pre-seizure of the house.
In judicial practice, the owner's mortgage cut-off often means that it may have fallen into a debt crisis. When the developer is deducted by the loan bank to assume the guarantee responsibility, the purchased house may have been pre-sealed by the court because of other creditor's rights and debts disputes of the buyer. In this context, developers often face a more embarrassing situation when exercising the right to cancel the contract. About the game between the developer's right to cancel and the court's seizure execution, not within the scope of this article, this article only discusses the housing based on the buyer's personal debt is pre-sealed, the developer advocates the termination of the contract when the judicial decision, the specific analysis is as follows:
(I) support termination of contract
The court holding this view holds that pre-seizure is different from formal seizure. Pre-seizure is a kind of pre-restricted registration carried out by the people's court on the real estate that has not yet registered the ownership of the person subject to execution, but may be registered in the future. What is preserved is that the buyer's right to request changes in real estate rights in accordance with the law can be successfully realized. Whether the request is established and can be exercised should be based on the basic legal relationship that the claim, however, the pre-seizure itself can not change the legal relationship that gives rise to the right of claim, nor can it restrict the termination of the purchase contract on the basis of legitimate reasons.
(II) support the termination of the contract, but do not support the return of the house
Although some local courts supported the developer's termination of the house purchase contract, they believed that after the contract was terminated, the house was owned by the developer and the buyer should return the plaintiff's house. However, because the house involved was sealed up by the court, the ultimate ownership of its rights was uncertain, so the developer The people's court will not support the request for the buyer to return the house. The developer can claim another right after the people's court lifts the seal.
Some local courts also held that the house involved in the case had been pre-sealed by the court in accordance with the law, and that the property sealed up by the judiciary belonged to restricted circulation in accordance with the law. In the case that the house involved in the case has not been released from the seizure, the conditions for the developer to request the return of the house involved have not yet been met, so the developer's request to cancel the record registration and return the house involved is not supported.
The (III) considers that the contract has met the conditions for termination, but it is not appropriate to terminate it.
Some local courts believe that there are already several creditor's rights confirmed by effective legal documents within the scope verified by the court, and the house involved has been sealed up by the judiciary. In order to avoid the destruction of the equality of creditor's rights, the developer's request to terminate the contract should not be supported for the time being, but the creditor's rights and amount enjoyed by the developer to the buyer should be confirmed. The developer can participate in the distribution of the implementation benefits together with other effective creditor's rights confirmed by the effective legal documents.
If the (IV) believes that the house has been seized, the contract shall not be terminated unless it meets the statutory right of discharge.
The court holding this view held that although the house involved in the case has not been formally registered for property rights, the object of pre-seizure by the people's court is the creditor's rights enjoyed by the buyer based on a valid house purchase and sale contract-that is, the right to request the delivery of the house and the right to request the registration of ownership transfer, in order to enable the buyer to retain the creditor's rights in order to realize the creditor's rights in the future. Therefore, once the right of claim is sealed up, it does not support the developer to exercise the agreed right of rescission, nor does it support the two parties to rescind by consensus. Only when there are legal reasons for rescission of the contract can the house purchase contract be rescinded.
This view has also been supported by the Jiangsu Provincial High Court. According to the "Answers to Several Questions of the Jiangsu Provincial High People's Court on the Trial of Real Estate Contract Dispute Cases" issued by the Jiangsu Provincial High People's Court on February 24, 2018, it is in Article 47 "Can the pre-sealed commercial housing sales contract be terminated" lists two views: the first is that in the commercial housing presale, the house is pre-sealed, and then due to the buyer's reasons, if the seller claims to terminate the contract, the people's court, after examination, finds that the seller meets the statutory and agreed circumstances of termination, and supports its claim. The second is that in the commercial housing presale, the house is pre-sealed, and then due to the buyer's reasons, the seller claims to terminate the contract, and the people's court, after examination, finds that the seller meets the statutory circumstances of termination, and supports its claim. If the seller claims to terminate the contract in accordance with the agreed conditions for termination, the people's court shall not support it. For the above two views, the Jiangsu Provincial High Court did not give a tendentious opinion.

3. the author's argument
(I) the developer and the owner agree in the purchase contract that the right of rescission is legal and valid, and in the case of repaying the bank mortgage loan, as the owner of the house, the developer has the right to exercise the right of rescission and recover the house.
First of all, it is obviously inappropriate to separate the intrinsic link between the purchase contract and the loan contract in terms of legal relations. It is true that there are two legal relationships between the developer and the buyer, one is the commercial housing presale contract relationship between the two, and the other is the loan contract relationship between the two and the bank, but the latter is not an independent loan legal relationship, but It is an extension of the legal relationship between the two parties in the housing sales contract, because the buyer buys a house in the form of mortgage loan, and the developer provides phased joint liability guarantee for its mortgage loan, therefore, in the commercial housing sales contract to make the buyer overdue repayment led to the developer to bear the stage guarantee responsibility, the purpose of the contract can not be achieved, the developer has the right to unilaterally terminate the contract agreement, and the freedom of contract, the balance of interests of the parties and business ethics standards are not contrary. From the logical analysis of the expression, the above agreement regarded the buyer's breach of the loan contract as the condition for the developer to exercise the right to terminate the contract, but in essence, there is an inevitable internal relationship between the two, because if the buyer defaults on the mortgage loan and causes the developer to assume the guarantee responsibility, the developer's contractual purpose of selling commercial housing to obtain the purchase price will not be realized. Under this circumstance, it is not inappropriate for the developer to exercise the right to terminate the contract.
Secondly, from the analysis of rights relief channels, if only the guarantor's right of recovery stipulated in Article 31 of the Guarantee Law is given to the developer, and the developer is deprived of the right to terminate the purchase contract and recover the house, then why should the developer "actively" join the loan guarantee of the paying party after selling the house and recovering the full amount of the house? This is obviously in conflict with the business ethics of seeking profits and avoiding disadvantages. For example, in the view of the Supreme People's Court in the previous article, during the periodic guarantee period, because the real right of the real estate belongs to the developer, not the buyer, it is impossible to directly register the mortgage with the bank. The introduction of the developer as the guarantor is the consideration of the balance of interests of all parties. Since the original intention of the model design is based on the developer's property right, when the developer's interests are damaged, the developer should also have the right to block the buyer's right to claim property rights based on the performance of the contract itself.
The object of (II) pre-seizure is not property rights, but a kind of claim as a right of expectation of property rights, which does not have universal exclusivity, nor does it have natural exclusivity due to the intervention of the court's public power, and should not block the developer's agreed right of rescission.
Although the pre-sealing measures of the people's court have the effect of fixing the status quo of rights and excluding changes in real rights, the measures themselves do not change the ownership of the real estate involved. Therefore, the object of the court's pre-sealing is not the ownership of the house itself, but the expected property rights enjoyed by the person subject to execution based on the commercial housing sales contract, and this property right will be uncertain as the performance of the contract changes, it is simply understood as "public power is generated based on pre-seizure, other powers cannot fight against it, and pre-seizure is exclusive". If this kind of creditor's right is solidified based on pre-seizure and cannot change with the performance of the contract, it means that the buyer as the main body of the contract will certainly obtain the ownership of the house, or expect to obtain the ownership of the house, this is obviously contrary to the basic principles of civil subject autonomy and good faith, so the author believes that the developer's right of release, whether legal or agreed, as long as the agreement itself is legal and effective, should be supported, should not be subject to pre-seizure restrictions.
However, when the house has been pre-sealed, the two parties have reached an agreement to terminate the contract. The author agrees with the aforementioned people's court's judgment that this situation can be understood as "abuse of civil rights to harm national interests, social public interests, or the legitimate rights and interests of others.", contrary to the principle of prohibiting abuse of rights in the field of civil law.