Court: Xiangshan District People's Court, Guilin City, Guangxi Zhuang Autonomous Region

Case number: (20 12) Xiangmin Chunuo. 179

The plaintiff in.

Authorized Agent: Lu Shengxi, lawyer of Guangxi Chunliang Law Firm.

Defendant Guilin Ding Xin Real Estate Development Co., Ltd. Domicile: Guilin.

Legal Representative: Cheng Jinyuan, chairman of the board of directors of this company.

Guilin Dijia Real Estate Development Co., Ltd. Address: Qixing District, Guilin City.

Legal representative Xiao Zheren, manager of this company.

Yu, the plaintiff, and Guilin Real Estate Development Co., Ltd. (hereinafter referred to as the company) and the third party Guilin Dijia Real Estate Development Co., Ltd. (hereinafter referred to as Dijia Company) had a dispute over a commercial housing sales contract. After the court accepted the case, a collegiate bench was formed according to law and the trial was held in public. The plaintiff Yu and his entrusted agent Lu Shengxi attended the proceedings in court. Defendant Ding Xin Company and the third party Dijia Company failed to appear in court after being legally summoned by our court. The case has now been closed.

The plaintiff claims that on August 29th, 2004, Yu Xuerong signed the Agreement on Entrusted Design and Construction of Commercial Housing with the defendant, and paid the defendant 65,438+10,000 yuan in advance to purchase the Garden/Unit 4 of Building KLOC-0/0/Room KLOC-0. After Yu Xuerong paid the house price to the defendant, the defendant never fulfilled the agreement with Yu Xuerong. In 2007, the plaintiff negotiated with Yu Xuerong, and the plaintiff purchased Ding Xin Garden 1 Building 1 Unit1Room at the original price. Yu Xuerong, the plaintiff and the defendant negotiated and obtained the defendant's approval. They said that in the Agreement on Entrusted Design and Construction of Commercial Housing signed by Xue Rong and the defendant, Yu Xuerong's name was directly changed to the plaintiff's name, and the defendant stamped the plaintiff's name for confirmation. After the defendant Xiang Xue Rong returned 654.38 million yuan, the plaintiff paid 654.38 million yuan to the defendant. On August 6th, 2007, the defendant issued a receipt of RMB 6,543,800+to the plaintiff. Later, the plaintiff learned that Ding Xin Garden Project had been sold to a third party on June 5438+February 10, 2007 because the defendant owed Guilin City Commercial Bank more than 8 million yuan, and both parties had signed an execution settlement agreement. Therefore, the plaintiff asked the third party to continue to perform the Agreement on Entrusted Design and Construction of Commercial Housing instead of the defendant, and the third party disagreed. The plaintiff believes that the Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff and the defendant should be regarded as a contract for the sale of commercial housing. But so far, the defendant has failed to obtain the pre-sale permit for commercial housing, and the agreement is invalid. If the agreement is invalid, the defendant shall return the plaintiff's principal of 654.38 million yuan and interest. At the same time, the defendant and the third party agreed in the supplementary agreement that if the group buyer requests to return the house, he should properly compensate the group buyer for the loss while returning the principal. Therefore, the plaintiff sued the court, demanding that 1 confirm that the Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff and the defendant on August 29th, 2004 is invalid; 2. Order the defendant to return the design fee and interest of the commercial house entrusted by the plaintiff 3 1.920 yuan; 3. Order the third party to bear joint and several liability. The legal costs of this case shall be borne by the defendant.

The defendant Ding Xin Company did not appear in court and did not reply.

The third person, Real Armor Company, did not appear in court and made no statement.

It was found through trial that the defendant Ding Xin Company was originally the developer of Ding Xin Garden Project in Zhuzi Lane, minzu road, Guilin. On August 29th, 2004, Party A Ding Xin Company and Party B Yu Xuerong signed the Agreement on Entrusted Design and Construction of Commercial Housing. According to the agreement, the commercial house designed and built by Party B on behalf of Party A is located in Unit 4/Room Kloc-0/Building No.0, Ding Xin Garden, with three bedrooms and two halls, with a tentative construction area of 1 21m2; The total price paid by Party B to Party A for the above-mentioned entrusted commodity house, including entrusted design fee, building materials fee, land fee, construction fee and management fee, is 24 16/m2, with a total price of 292,336 yuan; On April 10, 2006, Party B paid 25% of the total house price, that is, the advance payment 100000 yuan. When Party A obtains the above Commodity House Pre-sale Permit, Party B will be informed by telephone, and Party B will sign the Commodity House Sales Contract with Party A within five days after receiving the telephone notice, and the rest will be paid off by bank mortgage loan. After Party A obtains the Commodity House Pre-sale Permit, Party A and Party B separately sign the Commodity House Sales Contract, and the location, area and unit price of the commodity house purchased by Party B as the buyer are consistent with the agreement; Supplementary terms: After this agreement comes into effect, it shall be delivered to Party B before February 3, 20051day. If the delivery is delayed without irresistible reasons, the liquidated damages shall be paid according to the bank loan interest for the same period from the date of delay. Both Yu Xuerong and Ding Xin Company signed and sealed the agreement. In 2007, the plaintiff negotiated with Yu Xuerong, and the plaintiff purchased Ding Xin Garden 1 Building 1 Unit1Room at the original price. Both parties negotiated with Ding Xin Company, and Ding Xin Company agreed to change Yu Xuerong's name to the plaintiff's name in the original agreement, and Ding Xin Company stamped the official seal of the change for confirmation. After the defendant Xiang Xue Rong returned 654.38 million yuan, the plaintiff paid 654.38 million yuan to the defendant. On August 6th, 2007, 16, the defendant issued a receipt of 654.38 million yuan to the plaintiff.

On June 13, 2006, due to the lack of funds for the third phase development of Ding Xin Garden, Ding Xin Company borrowed 8 million yuan from Guilin City Commercial Bank Co., Ltd. with 4,337 square meters of land of Ding Xin Garden Project as collateral for a period of one year. Due to the stagnation of development and the difficulty in repaying the loan, Ding Xin Company failed to repay the principal and interest of the firm on schedule. On June 8, 2007, 18, the firm filed a lawsuit with the Xiufeng District People's Court in Guilin. In July of the same year 10, the people's court of Xiufeng District of Guilin made a civil mediation document (2007) Xiuminchuzi No.527, and Ding Xin Company voluntarily repaid the principal and interest of the loan. Because Ding Xin Company failed to perform according to the mediation agreement, the firm applied to the Xiufeng District People's Court of Guilin for compulsory execution. During the execution, Ding Xin Company reached an execution settlement agreement on June 5438+February 10, 2007 after consultation with our firm and Dijia Company, stipulating "1". Ding Xin Company agrees to sell the mortgaged land to Dijia Company at the price of100000 yuan, and the proceeds will give priority to repay the loan debt of our firm of 8920425 yuan, with the remaining amount of 65435 yuan. 2. Unitalen Company undertakes all the debts owed by Ding Xin Company to our firm, and our firm promises that after Unitalen Company returns RMB 2,004,250.00 Yuan to our firm, the remaining RMB 6.92 million will be used by Unitalen Company until March 20, 2008, and the interest will be calculated and paid according to the interest rate stipulated by the People's Bank of China for the same period, and the interest will be paid on time on the 20th of each month (the interest will be calculated from the date when Unitalen Company performs the payment). If Dijia Company fails to pay the interest on time, or before March 20, 2008, Dijia Company fails to return the balance of 6.92 million yuan to our firm, the ownership application court shall dispose of the mortgaged land according to law and pay off the 6.92 million yuan owed and the corresponding interest. After Dijia Company paid off all the debts owed by the firm, the firm released the mortgage of the above land. 3. After the Xiufeng District People's Court made a ruling, Dijia Company paid the money in two phases: within seven working days after the first ruling made by Xiufeng District People's Court came into effect, Dijia Company paid the first investment of 2004250 yuan to Ding Xin Company and its project in Ding Xin Garden 1 079575 yuan; Before March 20, 2008, Dijia Company returned the balance of 6.92 million yuan and the corresponding interest. Four. After this agreement comes into effect, Ding Xin Company shall cooperate with Zagreb Company to handle the change procedures. If you don't cooperate, you must compensate Dijia Company for the loan interest of the same period. ..... "In the same year, 65438+February 65438+July, the Xiufeng District People's Court of Guilin made a civil ruling (2007) Xiu No.237, confirming the above-mentioned settlement agreement and ruling to terminate the execution procedure of this case. In August, 2008, Guilin Bureau of Land and Resources agreed to change the state-owned land use right of three plots of land located in Zhuzi Lane of Ding Xin Company to Dijia Company. In June of the same year165438+1October 13, the Guilin Municipal Construction Planning Commission issued the Notice on Changing the Name of the Construction Unit in Some Construction Positions with Urban Construction Regulation (2008) No.404. After that, Dijia Company took over the third phase project of Ding Xin Garden and developed it. On March 20 10, dijia company obtained the pre-sale qualification of Ding Xin garden 10 building and pre-sold the house to the outside world.

On June 5438+February 10, 2007, Ding Xin Company (Party A) and Dijia Company (Party B) also signed a supplementary agreement, in which Party B promised that after taking over the third phase of Ding Xin Garden, the demolition and resettlement houses would be built for the relocated households first, and the interests of the group buyers of municipal organs must also be guaranteed. The plaintiff asked the third party to continue to perform the Agreement on Entrusted Design and Construction of Commercial Housing, but the third party disagreed, so the plaintiff sued the court.

The above facts are confirmed by the copy of the ID card provided by the plaintiff, the commercial housing design and construction agreement, the receipt of payment, the execution settlement agreement and supplementary agreement, the civil judgment of (20 10) Xiang Minyi No.838 and the court record.

We believe that the Agreement on Entrusted Design and Construction of Commercial Housing signed by the plaintiff instead of Xue Rong and the defendant Ding Xin Company is called the Agreement on Entrusted Design and Construction, but it contains the basic information of commercial housing, the method of determining the price of commercial housing, the total price, the payment method and the payment time, and already has the main contents of the commercial housing sales contract stipulated in Article 16 of the Measures for the Administration of Commercial Housing Sales. In addition, Ding Xin Company has collected100000 yuan as agreed. Therefore, according to Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts, the agreement on entrusting the design and construction of commercial housing should be recognized as a commercial housing sales contract. According to Article 84 of Chapter V of People's Republic of China (PRC) Contract Law, "If the debtor transfers all or part of its contractual obligations to a third party, it shall obtain the consent of the creditor." Article 86: "If the debtor transfers the debt, the new debtor shall bear the subordinate debt related to the main debt, except that the subordinate debt belongs exclusively to the original debtor." Article 90 "If the parties merge after concluding a contract, the merged legal person or other organization shall exercise its contractual rights and perform its contractual obligations. If the parties are separated after concluding a contract, unless otherwise agreed by the creditors and debtors, the separated legal person or other organization shall enjoy joint and several creditor's rights and obligations and bear joint and several debts. " There is no merger or division between Dijia Company and Ding Xin Company, so Article 90 of the Contract Law does not apply to this case. In the civil execution case of Xiufeng District People's Court (2007) No.237, Dijia Company signed a contract with Ding Xin Company to dispose of and accept the Ding Xin Garden Project during the execution of Xiufeng District People's Court. After that, a supplementary agreement was signed on June 5438+February 10, 2007, stipulating that Dijia Company would be responsible for the resettlement of relocated households and the interests of group buyers in the third phase of Ding Xin Garden project. However, based on the principle of "relativity of contract", the contents of the supplementary agreement are only known by Ding Xin Company and Dijia Company, and the implementation is only carried out between Ding Xin Company and Dijia Company. As the plaintiff has no evidence to prove that Ding Xin Company has informed Dijia Company in detail about the group purchase customers, Dijia Company will not be jointly and severally liable for the debts of Ding Xin Company. Therefore, our court does not support the plaintiff's claim that the third party shall bear joint and several liability. On March 20 10, Dijia Company obtained the pre-sale qualification of Ding Xin Garden 10 building, so Ding Xin Company could not obtain the pre-sale qualification of 10 building. According to Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts, if the seller fails to obtain the pre-sale permit of commercial housing, the pre-sale contract of commercial housing concluded with the buyer shall be deemed invalid. However, if the pre-sale permit certificate of commercial housing is obtained before the prosecution, it can be deemed as valid. "Before the plaintiff sued, Ding Xin Company could not obtain the pre-sale permit certificate of commercial housing, so the agreement between the two parties on entrusting the design and construction of commercial housing was invalid. Article 58 of the Contract Law of People's Republic of China (PRC) stipulates that after the contract is invalid, the property obtained from the contract shall be returned; The party at fault shall compensate the other party for the losses suffered as a result. Therefore, our court supports the plaintiff's claim that the defendant should return the house price 100000 yuan and pay interest because the contract is invalid. The interest is calculated according to the bank's interest rate of similar loans in the same period, from August 16, 2007 until the defendant pays off the house payment. According to Article 58 of the Contract Law of People's Republic of China (PRC), Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Commercial Housing Contract Disputes and Article 130 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

1. The Agreement on Entrusted Design and Construction of Commercial Housing signed by plaintiff Yu and defendant Guilin Real Estate Development Co., Ltd. is invalid. Defendant Guilin Real Estate Development Co., Ltd. returned the plaintiff's remaining house purchase price of 65,438+000,000 yuan, and paid interest (interest calculation, the principal of 65,438+000,000 yuan is calculated from August 65,438+06, 2007, until the defendant repaid the house purchase price, the interest rate refers to the bank loan interest rate for the same period).

2. Reject the plaintiff's other claims.

The case acceptance fee of 2988 yuan and the announcement fee of 700 yuan (paid in advance by the plaintiff) shall be borne by the defendant Guilin Ding Xin Real Estate Development Co., Ltd.

The debtor shall perform the above-mentioned payables within 10 days from the effective date of this judgment. If it is overdue, it shall pay double the interest on the debt during the overdue period. The creditor may apply to the court for execution within two years from the last day of the performance period stipulated in this judgment.

If you refuse to accept this judgment, you can submit an appeal to Guilin Intermediate People's Court through our court or directly within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and at the same time pay an appeal acceptance fee of 2,988 yuan in advance [account name: Guilin Intermediate People's Court, account number: 30 ×××× 16, bank: China Agricultural Bank Guilin Qixing Branch] to appeal to Guilin Intermediate People's Court. If the appeal fee is not paid in advance within seven days after the submission of the appeal, the appeal will be withdrawn automatically and this judgment will take legal effect.

Presiding Judge Qian Yue

People's Juror Meng Ying

People's juror Su Jian

20 12 July 30th

Clerk Zhou Lijuan.