Juridical argument
The purpose department that party signs building business contract is offerred for loan contract those who assure, form seek affectation to express, itself of building business contract disables as camouflage behavior, and loan assures as conceal behavior, in not lawbreaking, administrative regulations mandatory below formulary circumstance, can affirm its the contract effectiveness between party.
Brief introduction of details of a case
One, on November 8, 2010, china time company and Liu announce request 6 appearance that acquire China morning company through the means with content pay a debt in kind or by labour.
2, Linfuhan turned through the bank on June 19, 2012 Zhang remittance seeks nominated bank account 3 million yuan to Liu Xuan, morrow turns Zhang remittance 5 million yuan, total remit money 8 million yuan, but the money that makes clear its place to pay is " loan " .
3, on June 20, 2012, lin Fuhan and Liu announce are begged sign " building business contract " , buy afore-mentioned the facade of a shop, money paid for something purchased or received for something sold is rectified 8 million yuan. The contract returns an agreement: (1) " building business contract " sign Liu Xuan is begged that day answer namely house property premonitory original of original of the card that register, contract of commodity house business, sale is praedial bill original gives Linfuhan; (2) before September 19, 2012 Linfuhan has no right to deal with formalities of change the name of owner in a register; (3) if Liu Xuan is begged,go back on his word before September 19, 2012, should remand Party B advances entirely fund of the deposit that buy a house, impose the penalty due to breach of contract of day of 3 ‰ additionally.
4, Fuzhou quadrangle begs dispute of contract of loan waiting for a person because of Mao Laihua and Huang Yusheng, Liu Xuan in one case, closed down afore-mentioned storefront that Liu Xuan seeks under one's name. Lin Fuhan to forensic demur, fuzhou quadrangle rejects Linfuhan's demur to request.
5, Linfuhan mentions to Fuzhou quadrangle of executive demur appeal to, the request affirms " building business contract " effective, stop the execution of counterproposal experience storefront. Fuzhou quadrangle first instance supported its appeal.
6, Mao Laihua refuses to obey, a:appellant beatitude builds tall courtyard. 2 adjudgement reject Fujian tall courtyard definitely appeal, maintain original judgement.
7, Mao Laihua still refuses to obey, apply for rehear to the supreme court. The supreme court affirms " building business contract " invalid, change the original sentence rejects Linfuhan entire appeal.
The judgment wants a place
In this case, mao Laihua of application executive person is able to meet absolutely unripe, its prime cause depended on proving contract of business of case experience building is not Linfuhan and Liu Xuan to beg true meaning to express namely, is for Linfuhan the borrow or lend money that seeks 8 million yuan to Liu Xuan is offerred assure. The supreme court from " building business contract " conventional content is abnormal, the annotations of 8 million yuan of remittance is loan, trade a few respects such as price agreement abnormality are maintained " building business contract " be not Linfuhan and Liu Xuan to beg between true meaning expresses, consistent true meaning is being reached to hide action namely between party is assure what case experience storefront regards loan as the contract. Because both sides is in " building business contract " medium meaning expresses all truthless, reason supreme court basis " civil code general principles " the 146th regulation that seeks makes false meaning to express to disable about connecting, cognizance case experience " building business contract " invalid. As a result of " building business contract " invalid, lin Fuhan is not building vendee namely, its cannot basis basis " top people court about people court civil in carrying out, close down, the sequestered, regulation that freezes property " the seventeenth regulation, eliminate to be carried out compulsively of Mao Laihua.
Solid Wu experience is summed up
1, for folk leasehold offer the business contract that assure and signs, because both sides all does not have the meaning of real business, is one kind provides the measure that assure for creditor's rights debt, this business contract makes friend seek affectation to express. Basis " civil code general principles " the 146th the first regulation, relevant business contract should be maintained to be invalid. But at the same time basis " civil code general principles " the 146th the 2nd regulation, although business contract is maintained to be,disable, also do not affect bilateral party to express about the true meaning that assure. Reason is folk with business contract leasehold offer assure, still can yet be regarded as a kind of atypical assures measure.
2, it is folk with business contract leasehold offer assure, can not make creditor obtains corresponding assuring content counterpoises, creditor cannot the thing of the mark with respect to buying and selling is first suffer countervail. Basis " matter right law " the 5th regulation, the sort that content counterpoises and content must make clear a regulation by law. " matter right law " on of the regulation have preferential of sex sufferring countervail assure matter right is hypothec, qualitative authority and lien only, reason is folk with business contract leasehold offer assure and cannot establish assure content counterpoises, also cannot be opposite the content exercise of business bid is preferential authority sufferring countervail. So, the way that creditor should choose to pass business contract cautiously is offerred for creditor's rights assure, because be not enjoyed to the content of mark,prevent preferential suffer countervail to counterpoise and cannot develop expect the legal result that assure.
3, it is folk with business contract leasehold offer assure, when realizing model of this one blame to assure, creditor cannot ask to fulfil business contract, and can basis " about hearing civilian leasehold case applicable law the regulation of a certain number of problems " the 24th the 2nd, application auctions the thing of business contract award, return debt with countervail. But the money paid for something purchased or received for something sold that auctions earning and should the balance between refund principal and interest, borrower or lender has power position to return return or compensate. When realizing model of this one blame to assure namely, creditor has compulsive liquidation obligation, cannot acquire building property directly, the content sale gain that also cannot hold sign puts in his 's charge entirely all.
Relevant law sets
" civil code general principles "
Person of the 146th behavior and the civil law action that express to carry out with false meaning relative to the person are invalid.
State with false meaning hidden is civil the effectiveness of legal action, according to sets processing about law.
" matter right law "
The sort that the 5th content counterpoises and content, by legal provision.
The 170th assures matter right person expires in debtor nonperformance the implementation that debt perhaps produces party to agree assures the case that content counterpoises, enjoy lawfully assure belongings is preferential the right that gets countervail, but the except that law has a regulation additionally.
" about trying statute of comfortable use of civilian leasehold case the regulation of a certain number of problems "
The 24th party regards folk as leasehold contract with signing business contract assure, the borrower after loan expires cannot reimbursement, lender requests to fulfil business contract, people court ought to be tried according to impact of civilian leasehold legislation, change lawsuit to request to party Shi Ming. Party rejects to change, people court ruling is rejected sue.
After according to folk leasehold legislation impact tries the adjudicative become effective that make, borrower nonperformance become effective adjudicates certain monetary debt, lender can apply for to auction the thing of business contract award, return debt with countervail. The money paid for something purchased or received for something sold that auctions earning and should the balance between refund principal and interest, borrower or lender has power position to return return or compensate.
Forensic court decision
Adjudicate in rehear for the supreme court below " this academy thinks " part at this point the opinion that the problem expresses:
(one) case experience " building business contract " effective
Basis " general principles of civil code of People's Republic of China " the 143rd the 2nd regulation, civil law action ought to be had " the meaning expresses true " condition. " civil code general principles " the 146th regulation: "Behavior person and the civil law action that express to carry out with false meaning relative to the person are invalid. State with false meaning hidden is civil the effectiveness of legal action, according to sets processing about law. According to sets processing about law..
Lin Fuhan mentions of lawsuit of this case first instance appeal to beg one of it is to affirm case experience " building business contract " effective, and case experience " building business contract " the bilateral party position to property of meantime legislation impact is not consistent, and evidence all is not direct, sufficient, reason judges the true meaning that whether the content itself that this contract agrees is party to express, it is the key of cognizance contract effectiveness. This academy combines on record evidence, dug contract signs the true meaning of bilateral at that time party, and the property that main legislation concerns and contract effectiveness make counterproposal experience judgement.
Above all, lin Fuhan is in sign case experience " building business contract " before, already paid a part money namely, dividing the electron that pays for two to turn early or late on Zhang proof, the money that all makes clear its place to pay is " loan " . Although Linfuhan advocates " loan " money property turns for its Zhang fills in at will at that time, this money fact is the money that buy a house, but fill in at will to be as high as 8 million yuan money property, the usual practice of as rational as natural person not conform to.
Next, case experience " building business contract " sign in the agreement Liu Xuan begs the contract to answer namely that day house property premonitory original of original of the card that register, contract of commodity house business, sale is praedial bill original gives Linfuhan while, agreed Liu Xuan begs accredit Lin Fuhan to deal with formalities of change the name of owner in a register of case experience house property after September 19, 2012 again, and agree before this Linfuhan has no right to deal with formalities of change the name of owner in a register clearly, and it is OK that Liu Xuan is begged before September 19, 2012 " go back on one's word " , if go back on one's word, should remand Linfuhan is all " fund of the imprest deposit that buy a house " , add additionally " fund of the deposit that buy a house " daily the penalty due to breach of contract of 3 ‰ .
The 3rd, from case experience storefront the price looks, case experience " building business contract " adopt " a price " 8 million yuan means, take unit price of area of the house that depend on a room, every square metre unlike contract of average house business of computational house price trade commonly habit. In the meantime, according to the fact that 2 careful court finds out, liu Xuan is begged suffer when letting case experience storefront, the building mediates book evaluate to be 13409596 yuan according to other case, with case experience " building business contract " have bigger difference 8 million yuan of the agreement. Can maintain from this, case experience " building business contract " the conventional itself of storefront of buying and selling is the meaning expresses the affectation between party, liu Xuan is begged sign case experience with Linfuhan " building business contract " real purpose is assure with case experience storefront Liu Xuan begs capital to be 8 million yuan, of the debt that loan time limit is 3 months, interest rate to be day of 3 ‰ fulfill, consistent true meaning is being reached to hide action namely between party is assure what case experience storefront regards loan as the contract. Basis " civil code general principles " the 146th regulation, experience of this academy cognizance case " building business contract " itself disables as camouflage behavior, and loan assures as conceal behavior, in not lawbreaking, administrative regulations mandatory below formulary circumstance, can affirm its the contract effectiveness between party.
Accordingly, lin Fuhan requests to affirm its and Liu announce beg both sides to was signed on June 20, 2012 " building business contract " lawful and effective, lack legal basis, this academy gives reject. Assist its to deal with about sentencing your Liu Xuan to beg to Linfuhan will be located in drum-tower of the Fuzhou City Ou Antai is street 817 medium tea-booth of 18 regnant flourishing age (plot, plot 2) A area plot one commerce multi-purpose building a 16 storefront, , this academy does not grant to support.
(2) the requirement that whether executive demur of Linfuhan has block to be carried out however
On record experience " building business contract " it is the circumstance that creditor's rights assures falls only, the way that creditor Lin Fuhan realizes creditor's rights ought to be to be in after Liu Xuan seeks at the expiration of one's term of office of debt deadline for performance, advocate creditor's rights to its, refus is begged in Liu Xuan not the circumstance of faint perhaps repay a debt issues repay a debt, lin Fuhan square but " building business contract " the house property below holds the right, in order to assure the implementation of its creditor's rights. But as a result of party this hides a meaning to express to produce contract effectiveness between party only, and Linfuhan, Liu Xuan is begged did not establish for loan with case experience storefront assure undertake registering, reason Lin Fuhan did not enjoy droit to perhaps assure with respect to case experience storefront content counterpoises, still cannot form " top people court about applicable < code of civil law of People's Republic of China > executive program the explanation of a certain number of problems " the 15th place sets " droit perhaps has what other enough counters executive bid to make over, the hypostatic right of consign " , reason foundation should explain the 19th provision, demur reason of Lin Fuhan cannot hold water, this academy rejects his " the execution that stops counterproposal experience storefront, remove of counterproposal experience storefront close down " appeal to beg.
One, the executive demur that 2 adjudgement maintain Linfuhan definitely holds water, basically be a basis " top people court about people court civil in carrying out, close down, the distrain, regulation that freezes property " the seventeenth " person be executived the money that its all need handle change the name of owner in a register to register, the 3rd person has paid a part total perhaps cost own this property actually, but have not deal with property right change the name of owner in a register to register formalities, people court can close down, sequestered, freeze; The 3rd person has paid total cost and have actually, but did not deal with property right change the name of owner in a register to register formalities, if the 3rd person does not have fault to this, people court must not close down, sequestered, freeze " regulation. This academy thinks, case experience " building business contract " the name is building business, solid be not a model to assure for loan, nonexistent applicable the premise condition that this judicatory explains. One, mistake of statute of comfortable use of 2 careful court, this academy gives correct.
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