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

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.

2021-11-29

In the case of the case, the insurance contract does not agree on the insurance value of the new energy vehicle insurance claims calculation standard.

[brief case]] On November 10, 2017, Wang took out motor vehicle commercial loss insurance (hereinafter referred to as vehicle damage insurance) and no deductible insurance for his car in a property insurance Beijing branch. The insured vehicle is a pure electric car, and the purchase of this car enjoys preferential policies for the purchase of new energy vehicles; after deducting the state subsidy for the vehicle involved in the accident, Wang actually paid 60000 yuan for the purchase. A property insurance Beijing branch evaluates and calculates the insurance cost according to the official guide price before the car subsidy. The compensation limit for car damage insurance is 169801.2 yuan, and the insurance period is from December 12, 2017 to December 11, 2018. On April 25, 2018, Wang's father, Wang Yi, had a traffic accident driving the vehicle, causing damage to the vehicle. After the accident, Wang Yi immediately reported to a property insurance Beijing branch and explained the accident. After Wang mou sent the accident vehicle to a car sales co., ltd for repair and paid the repair cost of 70365 yuan. Wang mou believed that the vehicle involved in the accident was insured against vehicle damage in a property insurance Beijing branch with an insurance amount of 169801.2 yuan. the accident in this case occurred during the insurance period, and a property insurance Beijing branch should compensate Wang mou for 70365 yuan in accordance with the insurance contract. A property insurance Beijing branch believes that the vehicle involved in the accident should be calculated according to the depreciation value of 54240 yuan of Wang's actual purchase price, and should not be compensated according to the vehicle insurance amount of 169801.2 yuan at the time of insurance, so it does not agree with the compensation amount claimed by Wang. focus of controversy] How to determine the insurance value of the vehicle involved in the accident. The court considered] The court held that the insurance contract signed by Wang and a property insurance Beijing branch was the true intention of both parties, did not violate the mandatory provisions of laws and administrative regulations, and should be legal and effective. The focus of the dispute in this case is how to determine the insurance value of the vehicle involved in the accident. According to the provisions of Article 55 of the the People's Republic of China Insurance Law, if the insured and the insurer agree on the insurance value of the subject matter of the insurance and state it in the contract, the agreed insurance value shall be the standard of compensation calculation in the event of loss of the subject matter of the insurance. If the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard for the calculation of compensation in the event of loss of the subject matter of the insurance. According to Article 18 of the the People's Republic of China Insurance Law, the amount of insurance refers to the maximum amount of the insurer's liability for compensation or payment of insurance benefits. According to the above provisions, in a property insurance contract, the subject matter of the insurance has an insured value, and the amount of insurance is determined on the basis of the insured value. Insurance value is the economic value of the subject matter of insurance that can be estimated in monetary terms at a particular period of time. Specifically in this case, the subject matter of the insurance is the insured vehicle under the name of Wang. The insurance value is the monetization of the insured's insurance interest in the subject matter of the insurance. The value of the subject matter of the insurance exists objectively. It will not change due to whether there is a state subsidy, and then the insured's insurance interest in the subject matter of the insurance is also objective, and it will not change due to whether there is a state subsidy. According to Article 13 of the "Motor Vehicle Comprehensive Commercial Insurance Clauses" (hereinafter referred to as the "Insurance Clauses"), the insurance amount is determined according to the actual value of the insured motor vehicle at the time of insurance. In this case, the corresponding insurance amount in the "insurance amount" column of the motor vehicle comprehensive commercial insurance policy is 169801.2 yuan, that is, when Wang mou insured the vehicle, a property insurance Beijing branch calculated the insurance amount and insurance cost based on the official guiding price before the subsidy of the vehicle. the department can also certify that the actual value of the vehicle involved in the accident when insured is 169801.2 yuan. Therefore, the court held that the actual value of the vehicle involved in the accident at the time of insurance should be the official guiding price of 169801.2 yuan before the subsidy. According to the provisions of Article 55 of the the People's Republic of China Insurance Law, if the insured and the insurer have not agreed on the insured value of the subject matter of the insurance, the actual value of the subject matter of the insurance at the time of the insurance accident shall be the standard of compensation calculation. In this case, the two parties did not agree on the insurance value, so a property insurance Beijing branch should be based on the actual value of the subject matter of the insurance at the time of the accident as the standard of compensation calculation. According to the Insurance Clause, the actual value of the vehicle in this case after depreciation at the time of the insurance accident is 169801.2 x (1-16 x 0.006)= 153500.2848 yuan. In this case, Wang claimed that the vehicle maintenance cost was 70365 yuan, and the value of the loss was also lower than the actual value after the above depreciation, and within the scope of the insurance amount. Therefore, the court supported Wang mou's claim of vehicle maintenance cost of 70365 yuan, and did not support the opinion that a property insurance Beijing branch claimed to calculate the insurance amount according to the price before subsidy and to calculate the insurance amount according to the actual purchase price of 60000 yuan. Lawyer Advice] In recent years, the scale of new energy automobile industry has developed rapidly, and the use of new energy vehicles is more common. For new energy vehicles, car owners generally enjoy state subsidies when purchasing new energy vehicles, so the actual purchase price of new cars for car owners is lower than the official market guidance price. In motor vehicle property loss insurance, the current general practice of insurance companies is to calculate the premium based on the price before the subsidy, and the amount after the subsidy is used as the standard for the upper limit of compensation, that is, the "high insurance and low compensation" in practice ". In this case, with regard to the insurance claims of new energy vehicles, the court held that in the absence of a clear agreement on the value of automobile insurance in the insurance contract, the insurance company should take the actual value of the vehicle involved in the accident at the time of insurance, that is, the official guide price before the subsidy, as the calculation standard of insurance claims. Through this case, it is suggested that in the process of carrying out the new energy vehicle insurance business, the insurance company should clearly agree on the insurance value in the insurance contract and standardize the underwriting procedures, such as strictly fulfilling the obligation to remind the insured about the compensation limit and other contents, so as to prevent the relevant claims and litigation risks.

2021-11-29

Viewpoint... "Discussion of the period of exercise of mortgage."

Problem Background On May 2, 2017, Company A and Bank B signed the Liquidity Loan Contract, agreeing that Bank B would grant it a loan of $50 million for a period of 12 months. On the same day, the two parties signed the Maximum Mortgage Contract, which agreed that Company A would provide a mortgage guarantee for the claim with the property in its name and register the mortgage. When the loan matures, Company A is unable to repay the loan and Bank B takes it to court. On July 20, 2018, under the mediation of the court, the two parties reached a settlement, agreeing that Company A will repay Bank B 50 million yuan of principal and interest within three days after the effective date of the mediation agreement, and the case acceptance fee will be borne by Company A. Later, because Company A did not fulfill its repayment obligations, Bank B applied to the People's Court for enforcement based on the effective civil mediation, and the court ruled on September 23, 2020 to terminate the enforcement procedure. In this case, the court's mediation did not confirm the mortgage enjoyed by the bank, so did Bank B lose the mortgage, or what remedy was sought to realize the mortgage? The lack of confirmation of the mortgage right in the judgment and mediation statement 1. in force does not result in the loss of the mortgage right of the mortgagee. First of all, the "Maximum Mortgage Contract" signed by Company A and Bank B clearly stipulates the mortgage matters, and goes through the mortgage registration procedures to obtain the other title certificate of the property involved in the case. In accordance with the provisions of Article 172 of the Civil Code, the mortgage is established in accordance with the law. Secondly, according to Article 140 of the Civil Code, the meaning of silence can only have legal effect if the law clearly stipulates and the parties have special agreement. Although the civil mediation statement does not state that Bank B has a mortgage on the property involved in the case, nor does it state that Bank B waives the mortgage on the property involved in the case. Bank B has not expressly renounced the mortgage, and has not canceled the mortgage registration, in the absence of an express agreement or no special provisions of the law, it is not appropriate to presume that Bank B has renounced its rights, so Bank B still enjoys the mortgage on the property involved in the case. (Reference Case:(2021) Supreme Famin Shen No. 1134) Period of exercise of the mortgage of 2. B Bank Article 419 of the Civil Code stipulates that the mortgagee shall exercise the mortgage right during the limitation period of the main claim. As we all know, the statute of limitations system was established to urge civil rights holders to actively claim their rights within the statutory period, and if the statute of limitations expires and the principal claim loses the protection of legal coercion, the debtor can defend it. The statute of limitations system does not apply to security interests, as a security right and a mortgage from the right, can only be exercised during the statute of limitations for the principal claim, I .e., during the exercise of the mortgage. In the light of the above background, the problems during the exercise of the mortgage in judicial practice are classified as follows: Scenario 1: Bank B fails to sue this claim during the statute of limitations for the principal claim. The creditor did not bring a lawsuit against the claim within the limitation period of the main claim, and when the limitation period expires, the claim becomes a natural debt, that is, it loses the protection of legal force and is a debt that cannot be requested for enforcement. If Company A defends this, the court does not protect the claim. A mortgage is a subordinate right, subordinate to the principal claim, in which case the mortgage of Bank B is not protected by law under Article 419 of the Civil Code. If the mortgage registration of Bank B continues to be protected, it loses its legal basis. Therefore, Company A may request the registration of the cancellation of the mortgage in accordance with Article 59 of the Minutes of the National Court's Civil and Commercial Trial Work Conference. Scenario 2: Bank B files a lawsuit against the principal claim during the statute of limitations for the principal claim, fails to apply for confirmation of the mortgage, and fails to apply for enforcement during the enforcement period after the judgment becomes effective. Before the expiration of the statute of limitations for the principal creditor's rights, Bank B only filed a principal creditor's rights lawsuit against Company A, and did not request the court to confirm its mortgage right. After the judgment or mediation of the people's court, it did not apply for execution of the debtor within the time limit for application for execution stipulated in the Civil Procedure Law. If it claims to exercise the mortgage right to the mortgagor, the people's court will not support it. The view in the Judicial Interpretation and Application of the Guarantee System of the Civil Code of the Supreme People's Court: "Since the current law of our country has modified the period of application for enforcement, even if the claim has been confirmed by the people's court, it will no longer be protected by the people's court because the period of limitation for enforcement has passed. Since the principal claim is no longer protected by the people's court, the security interest subordinate to the principal claim is naturally no longer protected by the people's court." In such cases, the period during which the mortgagee exercises the mortgage is up to the time when the statute of limitations for enforcement of the principal claim judgment has elapsed. Scenario 3: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim came into effect, and then reached a settlement agreement with Company A under court mediation, withdrew the application for enforcement, and the court ruled to terminate the enforcement proceedings in the case. In this case, the court ruled that the termination of the case was due to the request to withdraw the execution application after the applicant and the person subject to execution reached a settlement agreement. According to the law, the termination of the execution of the case means the end of the execution procedure, which is different from the termination of the execution procedure. In principle, after the execution of the case is concluded, the execution procedure cannot be started again. However, the "Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law" clearly stipulates that the circumstances in which the termination of execution can be resumed are limited to two types of situations, that is, "after the applicant and the person subject to execution have reached a settlement agreement, the people's court may decide to terminate the execution" and "terminate the execution due to the cancellation of the application". In the case of termination of execution under the above two circumstances, if the party subject to execution fails to perform the execution of the settlement agreement, the person applying for execution may apply to the enforcement court to resume the execution of the original effective legal document, or file a lawsuit for the performance of the settlement agreement. It is worth noting that the application for resumption of enforcement should be restricted by the provisions on the limitation of enforcement in the Civil procedure Law and judicial interpretation. (Reference Case:(2020) Supreme Law Enforcement No. 4) The view in the Supreme People's Court Civil Code Guarantee System Judicial Interpretation and Application: In trial practice, the only criterion for supporting the mortgagor is whether the statute of limitations for the principal claim has elapsed. As long as the statute of limitations period for the principal claim has not elapsed, the creditor's request should be supported. Of course, if the limitation period of the main claim expires and the creditor claims to exercise the mortgage, the people's court shall not support it. After the execution of the judgment has failed, the period of limitation of action shall be recalculated. The "failure of enforcement" here should be understood as the decision of the enforcement court to conclude the enforcement proceedings in this case on the judgment of the principal claim. Scenario 4: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim became effective, and then reached a settlement with Company A under court mediation, and the court ruled to terminate the enforcement proceedings. Issued by the Supreme People's Court<关于执行案件立案、结案若干问题的意见>(Fa [2014] No. 26) ", the people's court ruled that after the termination of the execution procedure, if it finds that the person subject to execution has property, it may resume execution on the application of the person applying for execution or ex officio. If the executor applies for the resumption of execution, it shall not be subject to the time limit for applying for execution. In this case, since the principal claim judgment has entered into force and Bank B has applied for enforcement within the statutory time limit, there is no question of interruption, suspension or extension of the statute of limitations for the principal claim. As a subordinate right, there is no question of interruption, suspension or extension during the exercise of the mortgage. Bank B may, when applying for the resumption of enforcement proceedings, claim the exercise of the mortgage together with the enforcement court. Scenario 5: Bank B only filed a lawsuit against the principal claim during the statute of limitations for the principal claim, did not apply for confirmation of the mortgage, applied for enforcement within the statute of limitations after the judgment of the principal claim became effective, reached a settlement with Company A under court mediation, and the court ruled to terminate the enforcement proceedings. Company A then files for bankruptcy and liquidation, and Bank B files a claim with the administrator within the statutory period. Although Company A applied to the people's court for bankruptcy liquidation in the course of execution, Bank B, with an effective judgment, declared the claim to the bankruptcy administrator during the period of filing the claim as stipulated by law, and the administrator shall confirm that the claim is a claim secured by property. The period of declaration of claims is also the period of legal protection, because Bank B exercises the main claim within the period prescribed by law, so the main claim is still protected by law, and accordingly, its mortgage should also be protected by law. Trial point of view: mortgage, as a kind of security right, does not apply the statute of limitations system. However, in order to prevent the mortgagee from exercising the mortgage right and give full play to the economic utility of the mortgaged property, the property law stipulates that the mortgagee should exercise the mortgage right within the limitation period of the main creditor's right, which is to make it clear that the mortgagee should exercise the mortgage right within the period when the main creditor's right is protected by law. The period of protection of the law, before the main claim has not been determined by the effective decision, the main claim limitation period. When the main claim is determined by the effective decision of the proceedings, at this time the main claim is not the statute of limitations, but after the decision takes effect, the main claim may not be realized, in the case of the debtor's failure to take the initiative to perform, there is still the problem of enforcement. As long as the parties apply for enforcement against the debtor during the period of application for enforcement, with reference to Article 202 of the Property Law, the mortgagee shall be deemed to have exercised his rights during the period during which the principal claim is protected by law, and the rights of the mortgagee shall still be protected. In other words, after the principal claim has been confirmed by the effective decision, the period during which the principal claim is protected by law at this time is no longer the limitation period, but the period during which the application is made. Similarly, in the case of the debtor's bankruptcy, the period during which the principal claim is protected by law is the period during which the claim is declared under the law. (Reference Case:(2021) Supreme Famin No. 154) In summary, although the law provides for the corresponding protection of the creditor's mortgage, but as the right holder, should still actively claim the right, to avoid exceeding the statutory protection period, otherwise will bear the adverse consequences of the loss of rights.</关于执行案件立案、结案若干问题的意见>

2021-11-26

Real estate perspective: Is punitive damages in the Consumer Rights Protection Law applicable to commercial housing sales disputes?

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.

2021-11-26

In the case of the case, the insurance company shall bear the insurance liability if it knows that the insured meets the deductible.

[brief case]] A machinery company leased the wheel loader it purchased to a company in Zhanjiang Port, and at the request of a company in Zhanjiang Port, insured the Guangzhou branch of a financial insurance company with third party liability insurance. When an employee of a machinery company communicated with a salesman of a financial insurance company Guangzhou branch about the insurance, he informed that the equipment was used for rental and the customer specified the amount of insurance compensation. Later, because the loader caused the death of others in the rental process, a machinery company to a financial insurance company Guangzhou branch claim. The Guangzhou branch of a financial insurance company refused to pay compensation on the grounds that the contract stipulated that the subject matter of insurance caused liability for damages to a third party during the lease and loan period, and the insurer was not responsible for compensation. The people's court held that the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, that is, in line with the deductible, still underwrote it, and did not fulfill the obligation to prompt the exemption, and should be regarded as agreeing to compensate the third party for the damage caused by the lessee's lease of the loader involved in the case. focus of controversy] Whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. The court of first instance held that] A financial insurance company Guangzhou branch issued a "comprehensive insurance policy for engineering machinery and equipment" to a machinery company, and the legal relationship between the two parties was established. According to Article 16 of the the People's Republic of China Insurance Law, an insurance accident refers to an accident within the scope of insurance liability as stipulated in the insurance contract. In this case, a machinery company and a financial insurance company Guangzhou branch have a dispute over whether the accident involved constitutes an insurance accident stipulated in the comprehensive insurance of construction machinery and equipment plus the third party liability insurance clause. The main points of the dispute are as follows: 1. the right boundary of the three liability insurance of construction machinery and equipment; 2. whether a machinery company has fulfilled the obligation of disclosure of qualified insured to Guangzhou branch of a financial insurance company; 3. whether a machinery company has the obligation to pay work injury claims to the actual user of construction machinery. 1. on the right boundary of the three liability insurance of construction machinery and equipment. The "People's Property Insurance Company of China Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clauses" stipulates that during the insurance period, the insured or its permitted user has an accident in the process of using the subject matter of the insurance, causing a third party If the party suffers personal injury or death or direct property damage, the insured shall be liable for economic compensation in accordance with the law, and the insurer shall be responsible for compensation in accordance with the additional insurance contract. In the following cases, the insurer shall not be liable for compensation for damages to third parties caused by the subject matter of insurance for any reason: during the period of theft, robbery, robbery, rental, loan, or transfer to another person. According to the second paragraph of Article 17 of the the People's Republic of China Insurance Law, for the clauses in the insurance contract that exempt the insurer from liability, the insurer shall, when concluding the contract, make provisions sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificates, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause shall have no effect. In this case, a machinery company claimed that the Guangzhou branch of a financial insurance company refused to compensate because of the insurance accident of loader 39 involved during the rental period. since the Guangzhou branch of a financial insurance company had no proof to prove that it had served the additional three insurance clauses for construction machinery and equipment to a machinery company, the Guangzhou branch of a financial insurance company had no right to refuse to compensate on the grounds of applying the exemption clause. However, in the absence of a reminder or express statement of the exemption clause under the aforementioned law, only the exemption clause does not have legal effect, and the definition of the concept of insurance accident and the boundary of rights in the insurance clause is not included here. Therefore, the exemption clause is not applicable in this case, and whether the Guangzhou branch of a financial insurance company makes a claim to a machinery company depends on whether the accident in question constitutes an insurance accident as defined in the "Comprehensive Insurance Clause for Construction Machinery and Equipment of the people's property Insurance Company of China. 2. the question of whether a machinery company has fulfilled its disclosure obligations to the Guangzhou branch of a financial insurance company. The insured involved in the case was a machinery company, and the actual user of the No. 39 loader involved and the person responsible for the accident were both a company in Zhanjiang Port. A machinery company claimed to have informed the Guangzhou branch of a financial insurance company that "several loaders to be insured are for rental use" and submitted a "notarial certificate" to the court of first instance, which confirmed the fact. Although Guangzhou Branch of a financial insurance company knows that the loader No. 39 involved in the case is for rental use, on the premise that the owner and the user can be the insured, the insurance policy issued by Guangzhou Branch of a financial insurance company shall be subject to the intention of a machinery company. A machinery company has not proved that it has made a clear intention to Guangzhou Branch of a financial insurance company to use a company in Zhanjiang Port as the insured, no evidence was submitted to prove that changes were made to the insured after the insurance policy was issued. It shall be deemed that a machinery company has not fully fulfilled its obligations of information disclosure and clear notification, and the liability arising therefrom shall be borne by a machinery company of the insured. According to daily life experience and trading habits, the insured should be independently confirmed by the insured. The insured does not take the initiative to propose, and the insurer has no way to know. A machinery company claims that the insured is determined by a financial insurance company Guangzhou Branch in accordance with relevant laws and regulations. The claim that it is not determined by the personal wishes of a machinery company lacks factual basis, and the court of first instance will not accept it. 3. on the question of whether a machinery company should settle claims to the actual user of loader 39 involved in the case. According to the "Road Traffic Accident Investigation Report", Chen Mou, the driver of loader 39 involved in the case, did not put up the funnel belt feeding and guiding pipe in advance according to the "Safety Technical Operation Regulations for 404 Berth Head Moving Elevated Hopper" during the process of driving the loader to move the funnel, causing the guiding pipe to collide with the cement frame of the conveyor belt nearby, and the guiding pipe fell off and hit the commander, causing the safety accident of the death of the branch. There is a direct legal causal relationship between Chen's illegal operation and Zhi's injury and death. The drainage pipe of loader 39 involved in the case is only the instrumental motivation of Zhi's death. The substantive motivation lies in Chen's negligence and illegal operation. In production, he failed to fulfill the duty of careful attention and the responsibility of ensuring the safety of others' lives, and he was responsible for the death of Zhi. From the perspective that Chen Mou is a staff member of a labor service company stationed in a company in Zhanjiang Port in the form of labor dispatch and Zhi Mou is a staff member of a company in Zhanjiang Port, in accordance with the provisions of the second paragraph of Article 34 of the the People's Republic of China Tort Liability Law (now Article 191 of the Civil Code), during labor dispatch, the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall bear the tort liability; in accordance with the first paragraph of Article 11 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, the employer shall be liable for compensation if the employee suffers personal injury in the course of employment activities. Therefore, a company in Zhanjiang Port, whether as an employer receiving labor dispatch or an employer in employment activities, shall bear tort liability for the legal consequences of the death of a work-related injury, which is the nature of the employer's liability rather than the "third party liability" in the third party liability insurance ". According to the fourth paragraph of Article 65 of the the People's Republic of China Insurance Law, liability insurance refers to insurance that is the subject of insurance based on the liability of the insured to a third party in accordance with the law. The aforementioned "third party" refers to the subject other than the insured and its related parties as stipulated in the liability insurance policy, which has no direct related interest and has the right to claim compensation from the insured. In the practice of liability insurance, the boundaries of insurance according to liability are very clear, and the liability of employees for personal injury belongs to the scope of employer liability insurance rather than third party liability insurance. In this case, a company in Zhanjiang Port is not the insured involved. According to the Agreement on Renewing the Lease of Four Longgong Long Arm Loaders signed between a machinery company and a company in Zhanjiang Port, a machinery company only needs to bear the third party liability insurance obligation with the purchase amount of not less than 200000 yuan. In addition, there is no other legal or agreed compensation obligation to a company in Zhanjiang Port, A machinery company claimed that the evidence of the obligation to pay compensation for the death of a third party caused by the loading vehicle within the scope of the three liability insurance for the construction machinery and equipment involved in the case was insufficient, and the court of first instance did not accept it. To sum up, the accident involved does not constitute a liability insurance accident for construction machinery and equipment. A machinery company's claim for compensation of 500000 yuan and interest from a financial insurance company Guangzhou Branch lacks factual and legal basis, and the court of first instance will not support it. The court of second instance held that] The focus of the dispute in the second instance of this case is whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. First of all, although the insured of the third party liability insurance contained in the insurance policy is a machinery company, but a machinery company has clearly informed the Guangzhou branch of a financial insurance company that the loader involved is for rental use, and also clearly informed that it is insured at the request of the customer, therefore, a financial insurance company Guangzhou branch is in the knowledge that the case involved in the loader is not a machinery company's actual use of the circumstances still agreed to a machinery company as the insured to be insured. However, from the "China People's Property Insurance Co., Ltd. Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clause" submitted by a financial insurance company Guangzhou Branch, it can be seen that the insurance liability stipulates that "the insured shall bear the economic liability according to law, and the insurer shall be responsible for compensation according to the agreement of the additional insurance contract", and stipulates that the insurance subject is liable for damages to the third party during the lease and loan period, the insurer is not responsible for compensation. If, in accordance with the terms of the insurance, a machinery company, although insured, but ultimately can not get any compensation, this situation is obviously contrary to the original intention of a machinery company to insure third party liability insurance. Guangzhou Branch of a financial insurance company did not prompt a machinery company in good faith, but after the accident, it refused to pay compensation on the grounds of equipment rental, which was against integrity. Therefore, the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, should be regarded as agreeing to compensate for the damage caused to a third party during the lease of the loader involved in the case. Secondly, a machinery company did not sign the insurance policy at the time of insurance, and a financial insurance company Guangzhou branch did not submit evidence to prove that it had served the insurance terms of third party liability insurance to a machinery company. Therefore, the Guangzhou branch of a financial insurance company did not inform a machinery company of the contents of the contract and the exemption clause, and did not fulfill the obligation of prompting. According to the provisions of the second paragraph of Article 17 of the the People's Republic of China Insurance Law, the clause exempting the Guangzhou branch of a financial insurance company from liability has no effect on a machinery company. Therefore, a financial insurance company Guangzhou branch claims not to bear the liability, lack of contract basis. Thirdly, according to the agreement on renewing the lease of four long arm loaders signed by a machinery company and a company in Zhanjiang port and the statement made by a machinery company when it insured the Guangzhou branch of a financial insurance company, a machinery company is responsible for handling the third party liability insurance for the loaders involved in the rental case and providing a copy of the insurance contract for the record. The purpose of this agreement between a company in Zhanjiang Port and a machinery company is to reduce losses by settling claims to the insurance company in the event of an accident involving a loader, otherwise the agreement will have no practical significance. As a machinery company is insured with a limit of 500000 yuan for third party liability insurance, a company in Zhanjiang port, after compensating the family members of the deceased, claimed the insurance compensation amount of 500000 yuan to a machinery company, which is in line with the contract purpose of the agreement on renewing the lease of four long arm loaders for third party liability insurance. A company in Zhanjiang Port has received compensation from a machinery company through rent deduction and said that a machinery company has claimed compensation from the Guangzhou branch of a financial insurance company. Therefore, it should be determined that a machinery company because of the accident to bear the economic liability, a machinery company has insurance interests, can claim insurance money to a financial insurance company Guangzhou branch. Lawyer Advice] In this case, the court held that the insurance company did not prompt the insured in good faith to meet a certain exemption reason when accepting the insurance, but refused to pay compensation on the basis of the exemption after the occurrence of the insurance accident, which was obviously contrary to good faith, and finally ruled that the insurance company should bear the insurance liability. Through this case, it is recommended that the insurance company perform its statutory obligations when accepting insurance, and the business management personnel should have a certain degree of professional sensitivity and careful review of the relevant information stated by the policyholder, especially in the case that the subject matter of the insurance stated by the policyholder is obviously In accordance with the exemption of the insurance contract, the policyholder should be promptly prompted and clearly explained, and attention should be paid to the retention of relevant evidence during the process, to prevent insurance claims disputes and adverse risks in the case of legal deductibles.

2021-11-25

Typical cases | Administrative dispute over schooling for children of migrant workers

Brief of the case With the continuous influx of migrant population into big cities, how to arrange the enrollment of migrant workers' children has become an important work of the local education administrative department. There are a large number of migrants in a certain district. In recent years, the influx of migrants has far exceeded the growth rate of educational resources. The number of school-age children of migrant workers has increased sharply, and the supply of educational resources is highly tight. In the face of such a constantly intensifying contradiction between supply and demand, the Education Bureau of a certain district, according to the requirements of its superiors and after full investigation, and drawing lessons from the practices of Beijing, Shanghai and other provinces and cities, implemented a quantitative allocation policy, so as to achieve scientific allocation and solve as many problems as possible for the children of migrant workers. However, the number of applicants in some schools in the jurisdiction far exceeds the enrollment limit, and some school-age children are unable to attend the registered schools, which causes the parents of the students to be dissatisfied with the education department, which leads to disputes or lawsuits. This case is a typical example. In this case, the plaintiff Zhang's household registration is located in a village in a county and lives in a residential area in a district. When Zhang reached the age of admission, Zhang's parents submitted to a district education bureau application materials such as household registration certificate, work certificate, residence permit, individual business license, etc., and a district education bureau made quantitative scores on the spot based on the materials submitted by him. The total score was 25 points, and Zhang's father signed the score confirmation form. Since then, a district education bureau announced that the enrollment score for the children of migrant workers in its jurisdiction was 19.5 points, and at the same time announced the remaining degrees of each elementary school. Zhang's father applied to a district experimental primary school through the Internet, and agreed to obey the overall adjustment arrangement of the Education Bureau in accordance with the principle of relative proximity if the school has real difficulties in receiving it. After the education bureau told Zhang's father that his daughter's quantitative score did not reach the admission score of 26.5 in a district experimental primary school, she needed to apply for the second time as soon as possible according to the vacant degree in the existing school, but Zhang's father refused to apply for the second time. In order to protect Zhang's right to receive education, a district education bureau transferred him to Tianmou Road Primary School according to the principle of relatively nearby enrollment. Zhang's mother signed the admission notice of Tianmou Road Primary School. Later, Zhang filed an administrative lawsuit with a district people's court, asking the court to revoke the decision of a district education bureau to transfer him to Tianmou Road Primary School and reschedule him to study in a district experimental primary school. The main reasons stated by the plaintiff are: 1. a district education bureau's quantitative scoring policy for the children of migrant workers is illegal; 2. schools are the main body of enrollment work, and a district education bureau has no right to make a decision on the plaintiff's application for admission; 3. the plaintiff lives in a district experimental primary school district, priority should be given to the plaintiff's enrollment nearby. A district education bureau violated the plaintiff's right to equal compulsory education. On September 1, that is, during the trial of the lawsuit, the plaintiff reported to Tianmou Road Primary School. Undertaking process After accepting the entrustment of the Education Bureau, the attorney carefully studied the case and prepared for the lawsuit from the following aspects: First, summarize the laws and regulations, normative documents and related policies related to compulsory education at the national, provincial, municipal, and district levels. In particular, focus on the regulations on the enrollment of children of migrant workers; second, collect relevant cases and articles from all over the country, find out the expert opinions or court judgments that support the claims of the education department; Third, straighten out the evidence materials, and divide the materials submitted by the plaintiff and the materials made by the education bureau and the school from the application for quantitative assignment to the period of enrollment, so as to prevent omissions. On this basis, carefully write the defense, and compile the above-mentioned materials in different categories, list the evidence, and submit them to the court within the prescribed time limit. Proxy opinion In response to the plaintiff's claims and the reasons for the prosecution, the attorney mainly replied from the following three aspects: 1. District Education Bureau has the right to formulate the enrollment policy of its jurisdiction in combination with the actual situation Article 6 of the Regulations on Compulsory Education in Shandong Province stipulates: "Compulsory education is implemented in a system of overall planning and implementation by the provincial people's government, organization and implementation by the municipal people's government divided into districts, and management by the county (city, district) people's government. The education administrative departments of the people's governments at or above the county level are specifically responsible for the implementation of compulsory education; other relevant departments do a good job in the implementation of compulsory education in accordance with their duties." Article 3 of the Municipal Education Bureau's "Opinions on School Enrollment at the Stage of Compulsory Education in a City" stipulates: "The children of migrant workers who apply for admission must bring the household registration certificate that proves the relationship between the children, the work certificate (employment contract, the" five insurance "payment document paid by the unit or the social security payment document paid by the individual, the business license, etc.), and the temporary residence permit (Residence permit), proof of current residence (rental) to the Education Bureau of the county (city) district where the current residence is located to go through the relevant procedures. The certificate of consent to go out to receive compulsory education issued by the education administrative department of the original place of household registration may be submitted after enrollment. The education administrative departments of all counties (cities) and districts shall, on the basis of investigation, publicize the remaining degrees of the school in advance, and actively explore the method of quantifying the admission conditions according to the education capacity, the remaining degree situation and the number of children of migrant workers who move with them, and give priority to arranging the children of migrant workers with higher scores to go to school." Therefore, a district education bureau, as the local education administrative department, has the right to formulate enrollment plans and related policies in accordance with the requirements of laws and superior documents, combined with the actual situation of the region. A district education bureau requires the plaintiff to submit relevant materials and quantify them, which is in full compliance with the relevant provisions of laws and regulations. The 2. education department has the right to make overall arrangements for school-age children to attend schools. Article 14 of the regulations of Shandong Province on compulsory Education stipulates: "if school-age children or teenagers whose parents or other legal guardians work or live in places other than their registered residence receive compulsory education in their parents' or other legal guardians, their parents or other legal guardians shall hold their own identity, residence and employment certificates, Apply to the school of the school district where the place of residence is located. If it is really difficult for the school to accept, the education administrative department of the people's government of the county (city, district) where it resides shall make overall arrangements to study in public schools in accordance with the principle of relatively nearby enrollment." According to the above provisions, although the school is the main body of enrollment work, the education department has the right to make overall arrangements for school-age children to attend schools when there are real difficulties in receiving them. Therefore, if the plaintiff is not admitted to a district experimental primary school, a district education bureau has the right to transfer him to Tianmou Road Primary School in the jurisdiction. A district education bureau in 3. protected Zhang's right to receive compulsory education in accordance with the law. The "relative proximity principle" does not refer to the school that is closest in a straight line to the address of residence, but to the school that is relatively close to its location. The plaintiff stated in the complaint: "Agree to obey the defendant's overall adjustment and arrangement according to the principle of relative proximity if the school has real difficulties in receiving it", proving that the school is subject to adjustment. A district education bureau arranged the plaintiff to attend Tianmou Road Primary School, which is less than 3 kilometers away from home and has the highest teaching conditions in a district, according to the number and distribution of migrant workers' accompanying children in the region, which is in full compliance with the above provisions. The plaintiff had agreed to attend school, and a district education bureau guaranteed his equal right to compulsory education. court decision The court of first instance held that the plaintiff, as a school-age child, had the right to receive compulsory education. When the plaintiff applied for admission, although his household registration was not in a certain district, his parents worked in a certain district, and the plaintiff now lived in a certain district with his parents. The plaintiff had the right to receive compulsory education in a certain district. The defendant, a district education bureau, as the district education administrative department, has the authority to recruit students at the compulsory education stage. The defendant can formulate specific enrollment policies according to the actual situation of a certain district. The scoring criteria adopted by the defendant at the enrollment stage are equally applicable to school children who are not registered in a certain district, and there is nothing improper. The plaintiff applied to the defendant to study in an experimental primary school in a certain district. According to the application materials submitted by the plaintiff, the score was 25 points, which did not reach the minimum score of 26.5 points in an experimental primary school in a certain district. The defendant arranged for him to attend Tianmou Road Primary School, which is relatively close to his home, which has already guaranteed the plaintiff's equal right to receive compulsory education. The judgment rejected the plaintiff Zhang's claim. The plaintiff appealed against the judgment of the first instance, and the court of second instance held that the appellant Zhang, as a school-age child of the children of migrant workers, had the right to receive compulsory experimental education with his parents in accordance with the law. A certain district is an area with a large population of migrant workers. According to the Municipal Education Bureau's Opinions on School Enrollment in the Compulsory Education Stage, in order to protect the equal right to education, the appellee, as the education authority, formulates relevant issues in accordance with the provisions of the higher-level documents and the actual situation of the region. The policy does not violate the restrictive provisions of the law. The appellant's legal representative chose a district experimental primary school through the appellee's online registration system and was not admitted to the school. The appellant chose to obey the transfer, and the appellee transferred the appellant to Tianmou Road Primary School, which is relatively close to his parents' place of residence, according to the vacant degree of primary school in the area under his jurisdiction, and has enrolled in school, thus ensuring his right to compulsory education. The appellee's transfer was not improper and did not violate the prohibition. The appellant's request for revocation of the transfer was not justified and the Court did not support it. The appellant's failure to be admitted to a district experimental primary school was an act made by the school. The appellee did not make the act of transferring the appellant from a district experimental primary school. Therefore, the appellant's request to order the appellee to transfer him back to an experimental primary school was not supported by the court. The court of first instance found that the facts were clear, the application of the law was correct and should be maintained in accordance with the law. The judgment rejected the appeal and upheld the original judgment. case analysis There are four main points of controversy in this case: Is the adjustment made by the 1. District Education Bureau to the plaintiff actionable? The adjustment decision made by the District Education Bureau has had a practical impact on the plaintiff's rights and interests in education. It is a specific administrative act, which falls within the scope of accepting cases stipulated in Article 12 of the Administrative Procedure Law and is actionable. Does the 2. District Education Bureau have the right to formulate relevant policies for the enrollment of children of migrant workers? According to Article 6 of the Regulations on Compulsory Education in Shandong Province and the Opinions on School Enrollment in a City's Compulsory Education Stage, a district education bureau, as the local education administrative department, obviously has the right to formulate enrollment policies based on local actual conditions. It is legal to assign quantitative scores to the children of migrant workers, and require schools to enroll from high to low. Does the 3. District Education Bureau have the right to adjust the school attended by the plaintiff? According to Article 14 of the regulations on compulsory Education in Shandong Province, it is not the school to which the plaintiff applies for admission, the school must arrange for him to attend. If the school has real difficulties in accepting it, the local education administrative department can make overall arrangements in accordance with the principle of relatively nearby enrollment. Does the adjustment made by the 4. District Education Bureau violate the plaintiff's right to equal access to compulsory education? The plaintiff's score did not reach the admission score of a district experimental primary school. The district education bureau arranged for him to study in Tianmou Road Primary School, which is relatively close to his home, and has already guaranteed his equal right to receive compulsory education. Case-handling thinking Government departments should do a good job in the legal risk style of the formulation of relevant normative documents. Article 47 of the Provisions on Administrative Procedures of Shandong Province: "The formulation of normative documents shall be conducted by means of symposiums, demonstration meetings and public solicitation of opinions. Where the contents of the normative documents involve significant public interests, where the public has significant differences that may affect social stability, or where laws, regulations and rules provide for a hearing, the drafting department shall organize a hearing." The notice of the Legislative Affairs Office of the provincial government on the implementation of the unified registration, unified numbering and unified publication system of normative documents (Lu Fu Fa [2011] No. 56) clearly requires that from January 1, 2012, all normative documents should be examined for legality, and the system of unified registration, unified numbering and unified publication (hereinafter referred to as the "three unification" system) should be implemented in the legal institutions of the people's government at the same level; normative documents that do not implement the "three unifications" system are valid until December 31, 2015. The documents will automatically expire on January 1, 2016 and shall no longer be used as the basis for administrative management. Therefore, documents related to major public interests formulated by government departments must strictly follow the requirements for the formulation of relevant normative documents in the ''Administrative Procedure Regulations of Shandong Province'', and extensively solicit public opinions by organizing hearings and holding demonstration meetings, and go to the legal system in accordance with the law. The department conducts unified registration, unified numbering and unified publication. Otherwise, in the process of administrative litigation, if the parties submit a request to the court to review the legality of the document, the administrative agency will face the legal risk of losing the lawsuit.

2021-11-09

Real estate perspective: how to determine the liability of the property company when the owner's proprietary part is damaged.

Case Introduction On the afternoon of March 10, 2018, Yu found that the newly renovated house was damaged due to water leakage upstairs, causing damage to the bedroom roof and living room ceiling. Yu then found the property. After checking the property, the cause of the water leakage was the loosening of the water pipe plug in the upstairs toilet. After the property company failed to contact the upstairs owner, it immediately took measures such as closing the tap water valve to deal with the situation on site. After the incident, Yu communicated with the upstairs owner many times on the issue of loss compensation, but failed, so he took the upstairs owner and the property company to court. focus of controversy Should the property company be liable for compensation when the owner's proprietary part is damaged? court decision (I) court of first instance judgment: The court of first instance held that the legitimate rights and interests of citizens are protected by law. If the perpetrator infringes upon the civil rights and interests of others through fault, he shall bear tort liability. In this case, the damage to the plaintiff's house was caused by water leakage from the upstairs owner's house. The upstairs owner should compensate the plaintiff for the losses caused by this. The defendant's property company, as the maintenance and manager of the residential area, only closed the valve after receiving the water leakage from the residents. It did not notify the plaintiff to carry out inspection in time and the defendant to carry out maintenance. As a result, the plaintiff's losses were expanded, the property company was sentenced to bear the plaintiff's compensation of 3000 yuan. (II) court of second instance judgment: After receiving the repair notice, the appellant's property company failed to contact the owner upstairs and closed the main tap water valve of the staircase pipeline well. It can be seen that the property company has fulfilled the duties of property management, and according to Item 7 of Article 23 of the previous property service contract, Party B (the property company) shall not undertake the insurance custody obligation for the personal and property used by the owner and non-owner during the contract period (except for other special contract provisions), and Yu has not provided evidence to prove that he has signed a special contract with the property company for property custody, therefore, this court believes that the property company does not have liability for breach of contract, the court of first instance to the property company has a certain liability for breach of contract judgment that its liability for compensation has no factual and legal basis, belongs to the determination of facts and the application of the law is improper, the court to correct. Lawyer's opinion Through case search, in judicial practice, for accidents such as household water leakage, the court has different opinions when deciding whether the property company is responsible. For example, in this case, the court of first instance held that the property company, as the maintenance and manager of the community, had defects in performing its maintenance and management obligations, so it should bear certain liability for breach of contract; while the court of second instance, based on the clear agreement of the property service contract, decided that the property company did not bear the responsibility to be revised. Our lawyer believes that in terms of the legal relationship of property management, although the property company is the maintenance and manager of the community. However, according to the relevant property service agreement, the property company is the maintenance and manager of the public areas and public facilities and equipment of the community, and the exclusive part of the owner and its internal facilities and equipment are not the scope of responsibility of the property company. Then, it should be determined whether the property company has fulfilled its corresponding management responsibilities within the scope of responsibility for the public areas and public facilities and equipment in the community. In this case, the property company took timely measures to close the tap water valve after discovering the water leakage, and notified the leaking residents, which should be recognized As fulfilling the corresponding management obligations. In addition, this case is a tort dispute, from the tort legal relationship, the property company does not meet the constituent elements of infringement. Therefore, the property company should not be liable for compensation. Related Cases (I) Wang mou and Li mou dispute over compensation for property damage (2013 Licheng min Chu zi no 2566) Court decision: This court believes that according to the law, the perpetrator shall be liable for compensation if he infringes on the property rights and interests of others. Defendant Li Mingshuang damaged plaintiff Wang Rong's house due to a broken water pipe in his home. Defendant Li Mingshuang argued that the corresponding loss caused by the water leakage was due to multiple causes and one result. The house delivered by the third party Mingdu Real Estate Company had quality problems. The faucet installed by the third party Jinbi Property Company had quality problems. The claim was a contract dispute with the third party and had nothing to do with the tort in this case. Defendant Li Mingshuang should be liable. (II) Shanxi Yunxin Property Management Co., Ltd. Xiangyuan Branch and Yu Bei and Li Yingjun Property Damage Compensation Dispute (2019 Jin 04 Min Zhong No. 1061) Court decision: the second instance only revolves around the appeal request and factual reasons of the parties. In this case, it has been found out that the damage to the appellee's yingbei house was caused by the water leakage in the appellee's Li yingjun house. the appellee yunxin property company received a report from 203 residents for repair. the telephone contact with Li yingjun failed and closed the main tap water valves of 403 households in the staircase pipeline well. It can be seen that Yunxin Property Company has fulfilled its duties of property management, and it is stipulated in Item 7 of Article 23 of the Preliminary Property Service Contract for Affordable Housing in Xiangyuan County provided by Yunxin Property Company that Party B (Yunxin Property Company) shall not undertake the insurance custody obligation for the personal and property used by the owners and non-owners during the contract period (except for other special provisions in the contract), however, Yu Bei did not provide evidence to prove that he had signed a special contract with Yunxin Property Company for property custody. Therefore, the court held that Yunxin Property Company did not have any liability for breach of contract. The court of first instance ruled that Yunxin Property Company had certain liability for breach of contract and had no factual and legal basis for its liability for compensation. It was improper to determine the facts and apply the law. The court corrected it. (III) Wu mou, a property management company and a real estate company (2011 fu min Chu zi no 3195) The court decision: ...... a property management company as a property management company, its responsibility is mainly for the community to carry out professional management, maintenance of public facilities in the community, the owner of the house of proprietary facilities is not in its scope of responsibility, and a property management company after receiving a phone call from Wu took appropriate measures to deal with the incident. Wu also did not submit sufficient evidence to prove that a property management company was at fault in this case, and a property management company has no legal responsibility and should not be liable for compensation. ......

2021-11-05

Real Estate Perspective: Civil Agreement or Administrative Agreement? Analysis of the Nature of Land Use Right Assignment Contract

2021-10-29

The insurer has no right to claim the termination of the contract on the grounds that the insurance contract is still in the hesitancy period, unless otherwise stipulated by law or the insurance contract.

[brief case]] On December 16, 2016, Yuan Mou took out insurance from a certain person's insurance company in Linyi. The insurance items include 100 years of additional health 100 to pay critical illness insurance in advance, with an insurance amount of 200000 yuan. On December 16, 2016, someone's Linyi Branch collected Yuan's insurance premium of 8473 yuan. On January 4, 2017, someone insured Linyi Branch to refund Yuan Mou's fee. On January 5, 2017, someone insured Linyi Branch Company charged the fee again. On January 18, 2017, someone insured Linyi Branch Company returned Yuan Mou 763 yuan. On January 24, 2017, someone insured Linyi Branch Company returned Yuan Mou 7710 yuan. Yuan was hospitalized for cerebral hemorrhage and hypertension stage III on January 20, 2017. He was discharged from hospital on January 29, 2017 and was diagnosed with cerebral hemorrhage, hypertension stage III and hyponatremia. On June 11, 2019, Linyi Lanshan Forensic Judicial Appraisal Institute issued an appraisal opinion, which determined that Yuan's left upper limb function was completely lost due to hypertension and cerebral hemorrhage, his left lower limb was claudication, and his muscle strength was level 3. According to Article 7.6 of the "Personal Insurance Disability Assessment Standard", it conforms to "complete loss of function of one limb" and constitutes level 5 disability. The appraisal opinion is Yuan's "post-cerebral hemorrhage disease" constitutes level 5 disability. Yuan has repeatedly asked someone to insure Linyi Branch to pay for major illness insurance, but someone has refused to bear the insurance liability on the grounds that the insurance contract has been terminated and Yuan's premium has been refunded. After Yuan Mou filed a lawsuit with the people's Court of lanshan district, Linyi City, Shandong Province. After hearing, the court ruled that 1. someone to pay Yuan Mou's insurance money to Linyi Branch Company in 200000 yuan, which should be paid to Yuan Mou's account within 10 days after the legal effect of this judgment. The 2. rejected Yuan's other claims. A person Bao Linyi Branch appealed against the first instance judgment, and the Intermediate People's Court of Linyi City, Shandong Province, rejected the appeal and upheld the original judgment on June 28, 2020. focus of controversy] 1. Whether the insurance contract in question has been terminated during the period of hesitation; 2. The validity of the format clause of the insurance contract in question is determined. The court of first instance held that] The insurance contract signed by the original and the defendant is the true intention of both parties, does not violate the mandatory provisions of laws and regulations, and the insurance contract is established and valid. If the plaintiff is ill during the insurance period, the defendant shall bear the corresponding obligation to settle the claim in accordance with the provisions of the law and the insurance contract. According to Article 15 of the the People's Republic of China Insurance Law, unless otherwise provided in this Law or otherwise agreed in the insurance contract, after the establishment of the insurance contract, the applicant may terminate the contract and the insurer may not terminate the contract. The Court does not support the defendant's claim that he can terminate the contract. The defendant claimed that the plaintiff entrusted Liu mou to apply for surrender during the hesitation period, because the application for change of insurance contract and the power of attorney for change of insurance contract provided by the plaintiff were copies, and the defendant also recognized that the signature of "yuan mou" in the application was not signed by yuan mou himself. therefore, the defendant's claim that the plaintiff entrusted Liu mou to apply for surrender was not supported by the court due to insufficient evidence. According to Article 17 of the the People's Republic of China Insurance Law, if an insurance contract is concluded and the standard terms provided by the insurer are adopted, the insurance policy provided by the insurer to the policyholder shall be accompanied by the standard terms, and the insurer shall explain the contents of the contract to the policyholder. With regard to the clause in the insurance contract that exempts the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificate, and make a clear explanation to the applicant in written or oral form on the content of the clause; if there is no prompt or clear explanation, the clause shall not be effective. Accordingly, the insurer has the obligation to prompt and explain the exemption clause in the contract, and when the content of the clause involves technical terminology, the performance of the obligation should be to the extent that ordinary people can normally clearly know the content, meaning and legal consequences of the exemption clause. The confirmation of the electronic insurance application in this case has not been signed and confirmed by Yuan, which is not enough to prove that the defendant has clearly stated the exemption agreement in the insurance clause to Yuan, and the court does not support the defendant's defense of the company's exemption from insurance liability. The court of second instance held that] The Court held that, according to the Supreme People's Court's Rules on the Application<中华人民共和国民事诉讼法>的解释》第三百二十三条关于“第二审人民法院应当围绕当事人的上诉请求进行审理”的规定，本院二审中仅针对上诉人上诉请求的范围进行审查，无争议的问题不予审查。《最高人民法院关于适用<中华人民共和国民事诉讼法>Article 90 of the Interpretation of the Law of the People's Republic of China stipulates: "The parties shall provide evidence to prove the facts on which their claims are based or to refute the facts on which the other party's claims are based, unless otherwise provided by law. If the parties fail to provide evidence or the evidence is insufficient to prove their claims of fact before the judgment is rendered, the party bearing the burden of proof shall bear the adverse consequences." Article 63 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "The people's court shall make judgments in accordance with the law on the basis of the facts of the case that the evidence can prove." Article 17 of the the People's Republic of China Insurance Law stipulates: "Where an insurance contract is concluded and the standard terms provided by the insurer are adopted, the insurance form provided by the insurer to the policyholder shall be accompanied by the standard terms, and the insurer shall explain the contents of the contract to the policyholder. For the clause in the insurance contract that exempts the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificate, and make a clear explanation to the applicant in written or oral form on the content of the clause; if there is no prompt or clear explanation, the clause shall not be effective." The insurance clause in dispute in this case is the format clause issued unilaterally by the appellant. According to the above-mentioned legal provisions, whether it is the exemption clause in the form clause or the ordinary contract clause, the appellant is obliged to deliver or inform the terms to the insured at the time of insurance, and the obligation should not be replaced by a return visit afterwards, which is also in line with the principle of mutual agreement at the time of the conclusion of the ordinary contract. However, after the first instance, it was found that all parties agreed that the signatures on the electronic insurance application confirmation and other relevant documents were filled in by the insurance agent privately, not signed by the applicant's authorization, and could not represent the true intention of the applicant. The appellant also cannot submit other evidence to prove that it has informed or delivered the standard contract terms involved in the case to the policyholder at the time of insurance and has prompted and clearly stated the exemption clause, and shall bear the adverse consequences. The appellant's request for the assessment of disability rating in accordance with the terms of the format contract, the proportional payment of insurance benefits and the application of the agreed effective time and the application of the "waiting period" after the entry into force of the contract to refund the premium and exempt the agreement, are not based on the law, but also obviously unfair. In this case, the appellant claimed that the contract had been terminated, but his claim contradicted the "Application for Change of Insurance Contract" submitted by him and the contents of the telephone return visit he claimed, and there was no contract or legal basis, so the court refused to accept it according to law. With regard to the appellant's claim that the premium refunded should be deducted, the Court held that the appellant did not make the claim in the first instance. The appellant now proposes in the second instance that according to the second instance trial of the case, the court will not support it according to law. To sum up, the appellant's appeal request of a life insurance Linyi branch company cannot be established and should be rejected. In accordance with the first paragraph of Article 170 of the the People's Republic of China Civil Procedure Law, the judgment is as follows: the appeal is rejected and the original judgment is upheld. Lawyer comment] Article 5 of the the People's Republic of China Insurance Law stipulates: "The parties to insurance activities shall follow the principle of good faith in exercising their rights and performing their obligations." The principle of good faith, as one of the basic principles of insurance (the principle of insurance interests, the principle of good faith, the principle of proximate cause, and the principle of compensation for losses), means that the parties to an insurance contract should provide the other party with all the substantive and important facts that can affect the other party's decision to contract and perform the contract and abide by the agreements and commitments concluded in the contract. In insurance activities, for the insurer, the main content of the principle of good faith is that the insurer should explain the insurance contract to the counterpart, especially the exemption clause in the contract and make corresponding explanations. In this case, the insurance contract signed between the insurer and the applicant has been established and comes into effect. According to the provisions of Article 15 of the Insurance Law, even if the insurance contract is still in the hesitation period, in the absence of legal provisions or other provisions in the insurance contract, the insurer does not have the right to claim the termination of the contract; in addition, the insurer fails to perform the corresponding obligation of prompt notification and explanation on the exemption clause involved in the case, Therefore, it should bear adverse consequences.</中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>

2021-10-23

Construction Engineering Environmental Capital Law Review (No. 19)... The settlement of engineering disputes in the case of invalid construction contracts-remember a construction project construction contract dispute case.

On March 15, 2013, Company B (the employer) and Company A (the contractor, the agent of the Exchange) signed the Construction Framework Agreement, agreeing that Company A should contract to construct a project to be developed by Company B, and make an agreement on the location of the project, the scope of the project contract, the pricing principle, the contract price, the project quality, the liability for breach of contract and other substantive contents. In April 2014, Company B invited public bidding for the residential building project involved in the case, and Company A participated in the bidding. On July 1, 2014, Company A obtained the Letter of Acceptance for the residential building project involved in the case. On July 29, 2014, Company B and Company A signed the "Construction Project Construction Contract", which agreed that Company A would undertake the residential building project involved in Company B's case. On August 18, 2014, Company B and Company A signed the Construction Project Construction Contract again, which agreed that Company A should undertake all the contents of civil engineering, water, heating, strong current and weak current system engineering except unit door, pile foundation, dewatering, foundation pit support, fire protection. On January 8, 2015, Company A obtained the Letter of Acceptance for Section A of the underground garage involved in the project. On January 11, 2015, Company B and Company A signed the "Construction Project Construction Contract" for the third time, agreeing to the construction of Section A of the underground garage involved in the project by Company A. Before October 10, 2015, the residential buildings involved in the project were capped one after another. Before June 27, 2016, the acceptance of the main structure of the above residential buildings is qualified. On December 26, 2015, the construction of all projects was stopped. On May 17, 2016, Company B and Company A signed the "Confirmation of Project Quantity Involving the Case". On May 31, 2016, Company B and Company A signed the "Agreement on Resumption of Work Involving the Case". On July 5, 2016, as Company B failed to fulfill the agreement of the resumption of work agreement, Company A issued a "Notice of Suspension of Work" to Company B. On July 11, 2016, Company A stopped construction again. On November 25, 2016, the case was filed in Shandong Higher People's Court. Company A filed a lawsuit with the court and requested: 1. Company B is required to pay overdue project funds, interest and liquidated damages for overdue payment; 2. Company B is required to pay the actual expenses of the project such as personnel wages and rental fees, and the actual interest paid to pay the wages of migrant workers after the shutdown; 3. Request confirmation of the priority right to compensation for the construction project price. Company B filed a counterclaim: Company A is required to compensate for economic losses (the specific amount is determined according to the assessment). focus of controversy The focus of the core dispute in this case has five points: 1. Whether the framework agreement, the three construction contracts, the confirmation of the project quantity and the resumption of work agreement are legal and valid; 2. Whether Company A's claim for Company B to pay outstanding project funds, interest and liquidated damages for late payment should be supported; 3, A company requires B company to pay personnel wages, rental fees and other actual expenses of the project and pay after the shutdown to pay the wages of migrant workers and the actual expenditure of interest claims should be supported; 4, A company's request to confirm the right to priority compensation of the construction project price should be supported; 5. Whether Company B's claim for compensation for economic losses from Company A should be supported. Referee gist (I) on the first point of dispute, the Court held that: The project involved is within the scope of the project that must be tendered in accordance with the law. Both parties have signed a framework agreement before bidding and winning the bid for the project involved, agreeing that Company A will contract the project involved in the case, which violates the mandatory provisions of the Bidding Law. Therefore, in accordance with the provisions of Article 52, Item 5 of the original Contract Law, the court found that the framework agreement and the three construction contracts involved in the case were invalid. The confirmation of quantities and the resumption of work agreement are reached by the parties after the suspension of the project involved in the case for the purpose of checking the cost of the completed project and the resumption of work, which does not violate the mandatory provisions of laws and administrative regulations and is legal and effective. (II) With regard to the second dispute, the Court held that: First, on the outstanding payment of the project. Article 2 of the old "Judicial Interpretation of Construction Projects" (Fa Shi [2004] No. 14, now repealed) stipulates that "the construction contract of the construction project is invalid, but the construction project has passed the completion acceptance, and the contractor requests to pay the project price with reference to the contract., Should be supported", Article 14, Item 3 stipulates that "the construction project has not been completed and accepted, and the employer uses it without authorization, the date of completion shall be the date of transfer of possession of the construction project". In this case, although the framework agreement and the three construction contracts are invalid, and the project involved in the case has not been completed and accepted, both parties agree that the project involved in the case has been delivered for use, and also check the cost of the completed project. Therefore, the court supports Company A's request for Company B to pay the project funds. Second, about interest. 1. On the basis. (1) Because the court has entrusted the quality problems and repair costs of the underground garage according to the application of Company B, and Company B has also filed a corresponding counterclaim request, the court will no longer detain the warranty for the underground garage project. (2) For the cost of other projects except the underground garage, the construction contract stipulates that the warranty period is 2 years, and the warranty is 3% of the project cost. Although the project involved in the case has not been completed and accepted, the main structure of the residential building involved in the case has passed the acceptance as of June 27, 2016, and Company A has not made any claim on the cost of the construction project after signing the resumption agreement on May 31, 2016. Therefore, the warranty period shall start from June 27, 2016 and expire on June 26, 2018, and the warranty fund shall be returned. 2. About the starting time of interest. Article 18 of the old Judicial Interpretation I of Construction Projects stipulates that "interest shall be paid from the date on which the price of the project is payable". The two parties signed the confirmation of the project quantity on May 17, 2016, and reached an agreement on the cost of the project involved in the case, so the interest shall be calculated from May 17, 2016. 3. About interest rates. Company A requires Company B to bear the corresponding interest rate of the outstanding project payment as "bank interest". Third, on late payment liquidated damages. The framework agreement and the three construction contracts involved in the case are invalid, and the corresponding breach clauses are also invalid. Company B has also compensated Company A for lack of funds. Therefore, Company A requires Company B to pay liquidated damages for overdue payment, and the court does not support it. (III) With regard to the third point of dispute, the Court held that: First, the confirmation of quantities and the agreement on resumption of work signed by both parties state that the reason for the shutdown is that Company B's funds are not in place, and Company B has also compensated Company A for the shutdown. Therefore, Company A requires Company B to compensate for the corresponding losses caused by the shutdown. The claim is reasonable, but Company A has the responsibility to prove the existence of the corresponding losses. Second, Company A claimed that the actual project expenses such as personnel wages and rental fees occurred from December 1, 2015 to October 15, 2016, but the corresponding basis was not confirmed by Company B's signature. The mechanical and labor costs listed in the corresponding evidence during the shutdown period were not supported by evidence such as actual payment vouchers. The occurrence time of management personnel and labor wages listed in the corresponding evidence was from March to December 2016, which was inconsistent with the loss claimed by Company A. Third, Company A claims that it borrowed money to pay the wages of migrant workers and actually paid interest after the shutdown. However, the IOU provided by Company A is not sufficient to prove that it borrowed money to pay the wages of migrant workers, nor is it sufficient to prove that it borrowed money due to the fault of Company B. The amount of interest payable on the loan provided by Company A is calculated unilaterally and has not been confirmed by Company B. Therefore, the evidence provided by Company A is not sufficient to prove its claim, and the court does not support it. (IV) on the fourth point of dispute, the Court held that: According to the provisions of Article 286 of the original Contract Law and the original Reply on the Priority of Compensation (Fa Shi [2002] No. 16, now repealed), the construction project contractor has the priority of compensation for the project discount or auction price of its construction, and the period for the contractor to exercise the priority is six months from the date of completion of the construction project or the date of completion agreed in the contract, the price of the construction project includes the actual expenses of the staff remuneration and materials that the contractor shall pay for the construction project, and does not include the losses caused by the contractor's breach of contract. In this case, although the construction contract for the construction project involved in the case stipulates the completion date, company B admitted in the confirmation of the project quantity and the resumption agreement that the project involved in the case was shut down due to insufficient funds. the resumption agreement also stipulates that "the construction period will be automatically postponed, and company B will not make a claim for the construction period accordingly. the progress and construction period of the project after the resumption shall be separately agreed upon by both parties", and the two parties have not actually agreed upon the construction period, the residential building project involved in the case has not been completed and accepted, and the underground garage project involved in the case has not been completed so far. Therefore, Company A submitted to Company B on November 7, 2016 that the claim of priority compensation for the construction project price did not exceed the legal deadline. In addition, the interest that Company B should pay to Company A is a legal interest on the outstanding payment of the project and should be attributed to the scope of priority compensation. Therefore, Company A has the priority right to pay the construction price within the scope of the construction project. The (V) Court on the fifth focus of the dispute held that: Judging from the appraisal conclusion, both precipitation and construction are the reasons for the quality problems of the underground garage. When the appraisers appeared in court, they also said that precipitation and construction are the reasons for the rise. Now both parties have not provided sufficient evidence to prove that the quality problems of the underground garage should be completely attributed to the other party. Therefore, the court, according to the appraisal conclusion, combined with the construction of the underground garage project and the evidence provided by both parties, it is decided that Company A shall bear 60% of the quality responsibility of the underground garage project and Company B shall bear 40% of the quality responsibility of the underground garage project. Case assessment (I) the project involved in the case is a project that must be tendered in accordance with the law, the act of "deciding before bidding" violates the mandatory provisions of the "Tendering and Bidding Law". The court found that the framework agreement and the three construction contracts involved in the case were invalid. 1. The project involved in the case is a residential building project. In April 2014, it was subject to public bidding. According to the current law at that time, it belonged to the scope of the project that must be tendered according to law. Article 3 of the Tendering and Bidding Law stipulates: "The following construction projects within the territory of the People's Republic of China, including the survey, design, construction, supervision of the project, and the procurement of important equipment and materials related to the construction of the project, must be tendered: (1) Large-scale infrastructure, public utilities and other projects related to the public interest and public safety; (II) all or part of the use of state-owned funds investment or state financing projects; projects that (III) use loans or aid funds from international organizations or foreign governments. The specific scope and scale standards for the projects listed in the preceding paragraph shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval. Where the law or the State Council has provisions on the scope of other projects that must be tendered, such provisions shall be followed." Article 3 of the Regulations on Standards for the Scope and Scale of Bidding for Construction Projects formulated by the former State Development Planning Commission in 2000 (Order No. 3 of the State Development Planning Commission of the People's Republic of China, which has expired, hereinafter referred to as Order No. 3 of the Planning Commission) stipulates: "The scope of public utility projects related to social public interests and public safety includes: (1) municipal engineering projects such as water supply, power supply, gas supply and heat supply; (II) science and technology, education, culture and other projects; (III) sports, tourism and other projects; (IV) health, social welfare and other projects; (V) commercial housing, including affordable housing; (VI) other public utility projects." Therefore, the project involved in the case belongs to the "commercial housing" stipulated in Item (V) of Article 3 of the Planning Commission Order No. 3, and belongs to the scope of projects that must be tendered in accordance with the law. 2. For projects that must be tendered in accordance with the law, the act of "deciding before bidding" violates the mandatory provisions of the "Tendering and Bidding Law". The court found that the framework agreement and the three construction contracts involved in the case were invalid. In practice, in order to lock in the contractor in advance and exclude other competitors, many parties advance the time for substantive consultation and signing of the agreement to the start of the bidding process. This phenomenon is called "first decision and then bid". Regarding "first decision and then bidding", the "Bidding Law" and related laws and regulations are not clearly defined. When the court determines "first decision and then bidding", it often takes Article 43 of the "Bidding Law" as the legal basis. Article 43 of the Tendering and Bidding Law stipulates that "before determining the winning bidder, the tenderer shall not negotiate with the bidder on the substantive contents such as the bid price and the bidding plan". Compared with the provisions of Article 43 of the Tendering and Bidding Law, the substantive consultation act of bidding after bidding is determined is a more serious violation of the tendering law. According to the weightlifting rule, the agreement signed by the parties (pre-bid contract) violates the mandatory provisions of the law and should be invalid. The following conditions need to be met for deciding before recruiting: (1) Time conditions: According to Article 43 of the Bidding Law, the time node for limiting the prohibited acts is "before the winning bidder is determined", that is, before the bid is determined. In the case of "first decision and then recruitment", the act of "first decision" may occur at the latest before the winning of the bid, not before the start of the tender. (2) Pre-determined behavior: the tenderee and the winning bidder have signed substantial documents or the winning bidder has entered the construction site before winning the bid. That is, the tenderer has in writing or by the winning bidder actually participate in the construction of the way in fact identified the winning bidder. If both parties determine the winning bidder in advance in the form of written documents, the documents formed by them shall contain substantive contents such as project price and payment, project quality, construction period, etc., and reflect the intention of the tenderee to determine the winning bidder accordingly. In this case, on March 15, 2013, company B and company a signed the construction framework agreement, which agreed that company a would contract a project to be developed by company B, and made an agreement on the location of the project, the scope of the project contract, the pricing principle, the contract price, the project quality, the liability for breach of contract and other substantive contents. On July 1, 2014, Company A was determined to be the winning bidder for the project involved in the case. On July 29, 2014, August 18, 2014 and January 11, 2015, Company B and Company A signed three Construction Contracts successively. Therefore, according to the provisions of Item 5 of Article 52 of the original Contract Law, the court determined that the framework agreement and the three construction contracts involved in the case were invalid. After the repeal of the Contract Law, Article 153 of the Civil Code continues the above provision: "A civil juristic act that violates a mandatory provision of a law or administrative regulation shall be null and void. However, the mandatory provision shall not render the civil juristic act null and void. A civil juristic act that violates public order and good morals shall be null and void". 3. The provisions on the scope of infrastructure and public utility projects that must be tendered (No. 843 of the development and Reform Regulations [2018]) came into effect on June 6, 2018. Since then, commercial residential construction projects invested by private enterprises are no longer projects that must be tendered. Announced on March 27, 2018, Article 4 of the Regulations on Projects Subject to Bidding (Order No. 16 of the National Development and Reform Commission of the People's Republic of China, hereinafter referred to as Order No. 16 of the National Development and Reform Commission), which came into effect on June 1, 2018, stipulates: "Large-scale infrastructure, public utilities and other projects related to social public interests and public safety that do not fall under the circumstances specified in Articles 2 and 3 of these Provisions, the specific scope of the bidding must be determined by the development and reform department of the State Council in conjunction with the relevant departments of the State Council.

2021-09-06