One, brief introduction of details of a case
Accuser Yang Mou and the accused Ding Mou were signed on March 28, 2016 " make over an agreement " , the right of administration that the contract agrees the accused runs tea of 5 true Yan the department, all decorate, equipment and the building leasehold before October 18, 2016 make over accuser, accuser is one-time pay the accused to transfer gold 55000 yuan, cash pledge of water and electricity 2000 yuan. Accuser is in after paying the accused afore-mentioned money, begin to manage battalion headquarters of classics of tea of 5 true Yan.
Accuser agrees to give prosecutor building relet without lessor with the accused after for, the cession that thinks both sides is signed the agreement is invalid, requirement the accused is returned return 57000 yuan.
Both sides does not talk things over, accuser comes at appealing to on August 1, 2016 court, referred to the court " make over an agreement " , " compensatory agreement " , " receipt " , " the building rents a contract " , " building droit card " , " proof " , " witness testimony " the evidence such as the state that reachs former defendant gives confirm.
Shop is made over
2, forensic judge point of view
The court thinks via cognizance, former defendant both sides signs " make over an agreement " , department both sides talks things over of one's own accord reach, do not disobey relevant law laws and regulations to set, should lawful and effective.
Above all, the accused in making over an agreement gives prosecutor building relet, relet deadline did not exceed the accused the rest to lease time, in the meantime, with agreeing without lessor for the request removes the contract perhaps maintains relet contract to disable, answer to be advocated by lessor; Next, of the right of administration that the establishment, electric equipment establishment, establishment such as mahjong machine and battalion headquarters of classics of 5 really phlogistic tea decorate about the building in making over an agreement make over, need not of classics lessor agree; The 3rd, the agreement that former defendant runs department right of administration to make over about tea of 5 true Yan does not violate the regulation of relevant law laws and regulations, ought to lawful and effective; The 4th, accuser knows perfectly well lessor to be opposite the opinion of building relet, still reach with the accused of one's own accord make over an agreement, use experience case building actually to manage to before sueing, show a view to make over invalid requirement returns the agreement to still transfer gold, violate honest credence principle already, do not have legal basis again.
Flourishing store is rental
3, lawyer viewpoint
In this case, second tenant Yang Mou accuses Ding Mou advocates tenant " make over an agreement " invalid, the requirement is returned still transfer gold and deposit in all 57000 yuan, zhang Chengliang of group of attorney of state of your kind effort of Nanjing of office of Jiangsu Ning Lian's attorney's lawyer thinks, according to " contract law " fiftieth have one of following state 2 times, the contract is invalid: (one) one party concludes with con, threatening method contract, harm national interest; (2) ill will is colluded with, damage country, collective or interest of the 3rd person; (3) conceal illegal destination with legal form; (4) damage a society public interest; (5) of lawbreaking, administrative regulations mandatory regulation.
Lessor of the 224th tenant classics agrees, can give the 3rd person relet of the content that rent. Of tenant relet, the renting contract between tenant and lessor continues effective, the 3rd person causes losing to renting content, tenant ought to recoup a loss. Tenant agrees with relet without lessor, lessor can remove contract.
Additional, " top people court rents contract dispute case about trying town house specific application law the explanation of a certain number of problems " when lessor of the 15th tenant classics agrees to give the 3rd person relet of the building that rent, relet deadline exceeds tenant the rest to lease time, people court ought to maintain the agreement that exceeds a share to disable. But the except that lessor and tenant have an agreement additionally.
The 16th lessor knows or ought to know tenant relet, but inside 6 months not demur, its with tenant without agreeing for request what the contract perhaps maintains relet contract to disable to remove, people court does not grant to support. Because rent the dispute case that the contract produces, people court can inform tenant to join suit as the 3rd person.
Reason, sign to agreeing without lessor " relet contract " effectiveness problem, law gifted only lessor enjoys a request to remove inside 6 months since the day that know or ought to know the right with contract or cognizance relet invalid contract, second tenant does not have this right.
Sign to agreeing via lessor " relet contract " effectiveness, if relet deadline exceeds what tenant the rest leases time, be in " rental agreement " below the circumstance that does not have extraordinary agreement, the agreement that exceeds a share is invalid.
Law China
This case is right lessor, tenant, second tenant will tell it is certain to have draw lessons from a meaning, in the building process that rent, to reduce legal risk, suggest tenant before the business shop that takes over relet or residence, ask forring of go ahead of the rest gets building fee person (lessor) agree, wait about lease, hire, terms of payment reach unanimous opinion, avoid to generate controversy in the future.
