Article _ field is jungly
A pair of sweethearts, to marry, collective and contributive bought one ring house, register by the agreement in man under one's name. After buying a house, the feeling of two people appeared however the problem parts company finally, both sides talks things over sell the house that purchases jointly. Because building value is in wave motion at that time in, agree about selling the time both sides of the room to fail to talk things over, woman requirement will make work the time delay of the room one delay, wait for sell a house do not sell again below deficit or the premise that have profit. But the man falls in the condition that did not impose so that the woman agrees, after two months do sth without authorization sold the house, right now building value is being entered slow rise level. Because compensation of woman requirement man sells room place the damage that cause ahead of schedule, sue its to the court.
Do sth without authorization of the man after parting company sells a house
It is Guo Peng of 38 years old, from the university of Beijing of pass an entrance examination of Hubei native place, stay in Beijing to hit after graduation go all out. A few years ago, via kin introduction, guo Peng and small oneself acquaintance of Beijing girl Shen Jing, be in love. Through time of 23 years, two people arrived to talk about the degree that marriage talking marries. Because do not have marriage room, bilateral agreement is collective and contributive buy first secondhand the room transfers, wait for economic condition to allow to change bridal chamber again.
In July 2014, guo Peng passes a few months rush about, seek room source, understand on the spot, took a fancy to one office building eventually, and that month day and 19 house-owner signed the contract that buy a house, conventional building clinchs a deal total prices case 2.18 million yuan, draft loan amount 810 thousand yuan.
Subsequently, the agreement of Shen Jing and Guo Peng according to beforehand, signed on August 24, 2014 " room agreement is bought before marriage " . Jing of this agreement Shenyang is Party A, guo Peng is Party B, joint agreement: "One, both sides plans to buy house property floor area 91.56 square metre, house property total prices 2297360 yuan (the cost that contain tax, intermediary cost and relevant sundry charges) . 2, both sides affirms building head pays amount is 1347360 yuan, among them Party A is contributive 673680 yuan, 50% what take a specified amount paying gold, party B is contributive 673680 yuan, 50% what take a specified amount paying gold, odd house money adds up to 950 thousand yuan, both sides affirms mortgage loan means to pay through be being dealt with with Party B name, for bilateral joint liability. 3, both sides agrees via talking things over, the building signs the file such as the contract that buy a house, loan contract to deal with house property to register with Party B name. 4, after Party B acceptance obtains building right to belong to certificate, will press both sides at equal opportunity building head pays contributive scale, register Party A the mutual person that is a building. Party B affirms, no matter whether is Party A registered, or because any reasons fail to register the mutual person that is a building, all and legal right that all does not affect Party A to share person place to should be enjoyed as the building, without Party A written agree, party B is not gotten with Party A of any any reason, formal enroach on afore-mentioned rights. 5, both sides affirms, no matter need to undertake intersected to this building property right because of any reason both sides, according to head pay contributive scale undertakes differentiating. According to head pay contributive scale undertakes differentiating..
After the agreement is signed, shen Jing considers to there still are a few incidental expenseses to need to pay in the process that buy a house, turn at the account of one-time on September 4, 2014 Xiang Guopeng Zhang 723 thousand yuan. In buying process of experience case building, guo Peng is pressed paid a room paragraph and fee of all sorts of tax cost, representative about, evaluate the multinomial incidental expenses such as cost more than yuan 110 thousand. In addition, accumulation fund of Guo roc conduction housing borrows money 750 thousand yuan, the name that still borrows money in order to consume is leasehold 100 thousand yuan serve as the money that buy a house.
On September 16, 2014, guo Peng obtains the droit evidence of the building. After buying experience case house, guo Peng chaired pair of buildings to undertake decorating, decorate cost more than yuan 130 thousand. Ever since, guo Peng has bought house actually, repay loan.
But the person calculates calculate as the day. 2015 new year's day around, the feeling of Shen Jing and Guo Peng begins occurrence unforeseen event, bilateral plan marries no longer. To this, shen Jing says, because of,be be caused by of marriage of regret of Guo roc home remedy.
After 2 people part company, of the house deal with become two people between only question. In July 2015, roc classics of Shen Jing and Guo talks things over for many times, two average per capita agree to sell the house those who change to press bilateral agreement again now prorata, but because house property market is small at that time,confuse, building value is in wave motion in, shen Jing puts forward: "The time delay that sells a house one delay, wait for sell a house not below deficit or the premise that have profit, sell with finish two buy house fund issue again. " Guo Peng's opinion is: "By at present prices is reached longer it is impossible that period forecasts profit. To solve this problem as soon as possible, can continue to hang out one's shingle only sell a house, strive for as far as possible reduce deficit. " agree because of failing to talk things over to selling the time of the room, both sides parts on bad terms.
September 2015, of Beijing secondhand room value is in slow rise level, and Guo Peng is in did not ask for so that Shen Jing agrees, and below the case that did not signal Shen Jing, that month day and 27 other signed building business contract, sold bilateral and collective house with 2.295 million yuan price. In the meantime, both sides still bought the problem such as the time that terms of payment and time and building property right change house money to undertake conventional.
On April 24, 2016, first when Guo Peng uses the person that buy a house to pay money that buy a house repays the loan that ending accumulation fund borrows money and accrual, recapture the house property card that guaranty is in a bank. Of the same age on May 17, guo Peng goes to building change the name of owner in a register the under one's name of the person that buy a house, the person that buy a house at morrow paid buy fund of house remaining part entirely.
Cummer dimension authority appeals to before on court
On July 31, 2016, guo Peng informs building of case of Shenyang Jing experience to had been betrayed, the requirement breaks up money selling a house. Shen Jing listens, very malcontent: "Building value is in now appreciate period, why to ask for those who get me to agree to sell the house? And the expenditure that the price that sell buys a house than us is little still thousands of yuan, why should be eager to lose money in business selling a house? Why should be eager to lose money in business selling a house??
"The price prep above that sells a house the market value at that time, the house had sold, say whats were used. " Guo Peng two tactics spreads out, continue to say, "Deduct all cost, according to the scale of bilateral agreement, should return you 621 thousand yuan, should you want? " Shenyang Jing gas does not make one part, anger anger ground retaliates: "This is my money originally, I do not want by what. I do not want by what..
Guo Peng through turning on August 26, 2016 the means of Zhang returns Shen Jing to buy house fund 621 thousand yuan first, sent a message to Shen Jing: "Be related of the bilateral and common contributive issue that buy a house has been handled so far end. " " building value is in now rise period, the range that rise is very big still, should OK earn a many money. But, guo Peng does not inform me, also do not ask for those who get me to agree, sell house lose money in business, do not say gain, oneself still had a deficit 100 thousand multivariate, is this issue over how possibly so? " think of here, shenyang refuses to obey in Jing heart, she finds Guo Peng again, ask Guo Peng returns him to buy the balance of house money, compensate for a building appreciate loss.
Shen Jing asks Guo Peng continues to return a house appreciate loss, and Guo Peng states the bilateral and common contributive issue that buy a house has been handled end. Both sides sticks to his argument, each other does not let, cause contradiction to upgrade, cannot mediate. Be in for many times bargaining falls without the circumstance of fruit, shen Jing is sued make the same score division people court to Beijing prosperous, ask Guo Peng returns the money that buy a house 102 thousand yuan, recoup building appreciation loss more than yuan 742 thousand.
On the court, shen Jing appeals to say: Guo Peng was not informing his oneself, do not have the condition that imposes so that its agree to fall more, on September 27, 2015 do sth without authorization sells the house with 2.295 million yuan low. Because Beijing house price rises, this building is evaluated via evaluating a company, already decided on September 30, 2016 the building assumes the market prise that is condition of semifinished product room is more than yuan 3.65 million, the value that increases jacket to repair adds up to more than yuan 3.782 million, relatively the price increment when buying more than yuan 1.485 million. Its enjoy the share of 50% , namely appreciation share loss is more than yuan 742 thousand, ought to compensate for by Guo Peng.
In the light of Shen Jing appeal to beg, guo Peng rejoins say: 1. Shen Jing's opinion is to sell the opportunity delay of the room one delay. He himself thinks the time that demands punish buy program at that time was July 2015, time selling a house was September, wait two months. Its did not violate Shen Jing to offer the opinion of one delay of delay. 2. Shen Jing's opinion is to hope to defer not deficit or when having profit sell in time. Its think, before September 2015, what countrywide estate sale enters force majeure is low confuse condition. Below so severe case, in defer if two lunar hind are not seasonable sell, cause bigger loss likely. Till caustic, to give Fu Shenjing as early as possible head pay, its take advantage of an opportunity and for, sell the house without fault. 3. The general branch that buy a house goes out with gross income selling a house, balance of income and expenses, immediate loss amount is more than yuan 204 thousand, according to bilateral agreement, after deducting the loss that bears 100 thousand yuan severally, already of Jiang Shenjing buy house money to pay entirely end. 4. In September 2015, house price is in drop passageway, say Shen Jing also did not forecast house price to must go up again, the basis that if regard a request as its with the price later rising in price when this case lawsuit,compensate pays, it is inequitable to him. Besides, the losing of fund of compensatory building appreciation that Shen Jing puts forward requests, it is tort damages request, it is to be able to get the compensate of the interest to pay, his behavior does not have fault, should not assume liability to pay compensation.
In this case cognizance process, shen Jing puts forward to undertake assessment in the vendibility September 30, 2016 to the building. Guo Peng asks to evaluate a building to be in when betraying namely the vendibility September 27, 2015.
On September 15, 2017, evaluate a company to issue two to evaluate a report. Evaluate a report to carry bright, experience case building is two million one hundred and seventy-two thousand three hundred yuan in the vendibility September 27, 2015 (do not contain decorate) , three million six hundred and fifty-one thousand six hundred yuan are in the vendibility September 30, 2016 (do not contain decorate) .
Court decision of two class court is different
Court of people of Beijing prosperous smooth division thinks after classics cognizance, when what punish shares is praedial, ought to agree via occupying portion to share a person of 2/3 above by the portion. Other basis " room agreement is bought before marriage " agreement, what Guo Peng passes Shen Jing only is written agree, ability punish house property. Show both sides to did not reach unanimous opinion on the time place that sells experience case house, here the circumstance falls, guo Peng can connect add of adopt a young relative to talk things over only or lawfully the means of to lodge a complaint asks to break up mutual house property. Guo Peng agrees to did not inform her herself to sell do sth without authorization of experience case building even without Shen Jing, the lawful money property right that violated Shen Jing apparently and know the inside story counterpoise. On put together, fact of tort of the accused Guo Peng exists.
About loss problem. Choose proper time place to sell a house, it is great and decision-making problem, want to consider act cautiously. In existence the circumstance of other and mutual person falls, the building sells what must ask for so that occupy legal portion to share a person agree or accord with the agreement between mutual person, have no right to because its are decision-making,punish person may want and assume the responsibility of damages to other and mutual person otherwise. The statistical data that publishs according to Beijing statistic bureau shows, when Guo Peng signs experience case building to sell a contract, beijing is secondhand the room trades the price is in slow rise level. Accordingly, the defer below normal circumstance sells than early the earnings that sells place is obtained is higher. Guo Peng knows perfectly well his to have no right punish agrees with do sth without authorization to sell experience case house without sharing person Shenyang Jing again however, bring to its expect pecuniary loss. Guo Peng is accountability undertake compensatory to Shen Jing's loss.
Shen Jing just puts forward " sell a house not below deficit or the premise that have profit " premise condition, this condition cannot point to definite time place, its advocate with the market price September 30, 2016 case serves as computational losing cut off to do not have legal basis already, also be opposite in fact Guo Peng is inequitable. Guo Peng's fault shares a house besides home remedy punish outside, still have the fact that did not disclose a building for long to sell and progress, did not pay Shen Jing for long due cost. Below the big setting that rises in house price, chi Yitian recapture buys house money to be meant more money may be taken out to buy when future buys a house. Accordingly, losing of influence Shenyang Jing is the biggest the element is recapture buy house fund or deserved the time of money selling a house. Integrated above is analysed, the court decides loss of computational Shenyang Jing ends time place turns for Guo Peng the time that Zhang gives Shen Jing house money namely on August 26, 2016, report of ginseng test appraise and corresponding time paragraph Beijing is secondhand the room trades the price rises take into consideration the circumstances is a circumstance certainly 3.53 million yuan (contain decorate) . It is fair for the purpose of at the same time, 70% what forensic use one's discretion adjudicates Guo Peng pays what its can enjoy Shen Jing to expect earnings.
About Shen Jing the requirement returns the request that buys house fund entirely, because buy the room tax cost, capital that decorates cost and accumulation fund to still be borrowed and interest,actual You Guopeng pays, but these charge ought to regard the joint liability of two people as joint responsibility. What consider bilateral agreement and each one integratedly is contributive reach disbursement other fee, the court affirms 10590 yuan to Guo Peng still should return Shen Jing to buy house fund again.
On Feburary 23, 2018, basis of court of people of prosperous smooth division " law of liability of tort of People's Republic of China " the 6th, " law of right of matter of People's Republic of China " the 97th, ninety-nine regulation, make first instance adjudicate, adjudicate 10590 yuan to Guo roc returns Shenyang Jing to buy house contributive fund, recoup loss of appreciation of Shenyang Jing building 430 thousand yuan.
After first instance adjudicates, guo Peng refuses to obey, to Beijing court of the first intermediate people put forward to appeal. In appeal, guo Peng appeals to say: 1. First trial court maintains his to have no right punish building, should maintain a mistake. Below the case that Shen Jing was not being registered to be mutual person, can sign according to both sides only " room agreement is bought before marriage " contributive to buying a house money enjoys contract creditor's rights. He serves as alone everybody, enjoy complete punish right. 2. First trial court thinks both sides is selling room time place to go up to was not reached consistent, should maintain do not accord with a fact. Shen Jing puts forward " the delay on time one delay, not when deficit or house price rise sell in time " " sell in time " etc state, conveyed Shen Jing to ask to sell the clear meaning of the room. The delay on time one delay, not deficit or house price rise, it is to give firstly choose limits, he after two months sold the building accords with delay September the requirement of one delay. In the meantime, in house price low when confusing, buy a building in order to sell total prices is mixed to contain duty to expend total prices price to differ 2000 multivariate when sell, accord with not deficient condition basically. 3. First trial court maintains its tort mistake, its cannot forecast a building to go situation, subjective go up not to have culpability sex. 4. Maintain in the loss on, regard Shen Jing as the appreciation part of house price subjective the loss that expects a generation, both neither accords with the fill principle of tort damages, at the beginning of also according with Shen Jing to sell a house not of deficit subjective anticipate. On put together, request the court decision of court of cancel first trial, reject entire lawsuit of Shen Jing to request.
Shenyang Jing argue says: 1. Its basis " room agreement is bought before marriage " reach contributive the mutual right person that becomes a house, counterpoise to sharing a building to enjoy thing, this right is authority, absolute to the world power. 2. When selling mutual house, guo Peng not according to " room agreement is bought before marriage " what the agreement obtains his is written agree, belong to have no right to manage minute of action, enroach on her mutual right. 3. Guo Peng's behavior is put in apparent fault, should recoup its loss. 4. Guo roc enroach on when the behavior of its right ends to obtained Guo Peng to return the money that buy a house to give its oneself on August 26, 2016, guo Peng ought to recoup its loss according to the market price case at that time.
Beijing thinks after cognizance of classics of court of the first intermediate people, in this case, appeal to contend for a building to did not register Shen Jing for droit person. Although Shen Jing was signed with Guo Peng " room agreement is bought before marriage " , yi Yi fulfilled contributive obligation about, but legislation is not special the matter right person that stipulates here the Shen Jing below the circumstance has become experience case house. Shen Jing does not enjoy content to counterpoise to a droit below, content that use profit counterpoises and assure to experience case building content counterpoises. Shenyang Jing with Guo Peng the appreciation loss that experience case house holds for right of enroach on its matter, do not have at the law according to, answer not to grant to support.
Shen Jing advocates Guo Peng recoups the appreciation loss of building of its experience case. Because Shen Jing is right,experience case building does not enjoy droit, its maintain base of logic of losing of appreciation of experience case building can be only " room agreement is bought before marriage " fulfill an interest. According to Shen Jing's allegation, its are based on the regulation of tort liability law to ask Guo Peng compensates for his to fulfill an interest. Law of liability of our country tort is the 2nd when the right that its protect itemize, did not include contract creditor's rights. First trial court is wrong to managing here, 2 careful court gives correct. The building appreciation loss that Shen Jing holds, can solve according to the relevant provision of contract law.
About contributive money return still. Shen Jing advocates in this case contributive money is returned still, this amount subtracts for the contributive amount of simple Shen Jing Guo Peng already was returned return the balance between amount. Before already remark, when contract appearance opposite party is based on the regulation of tort liability law to advocate creditor's rights is protected, answer not to grant to support. The contract exists to concern with respect to experience case building between Guo Peng and Shenyang Jing, head pay return it is advisable to still ought to be solved through contract dispute.
The place on put together is narrated, statute of comfortable use of first trial court is wrong, 2 careful court gives correct.
On August 15, 2018, beijing according to of court of the first intermediate people " law of liability of tort of People's Republic of China " the 2nd, " law of right of matter of People's Republic of China " the 9th the first, " code of civil law of People's Republic of China " regulation of the 170th the first binomial, make final judgment adjudicate, adjudicate cancel first instance adjudicates, adjudicate the whole suit that rejects Shen Jing requests.
(the privacy to protect party, article go-between master corresponding technical divisions manages)
