In recent years, rural house business trades increasing, people figure ground says for " room of small property right " " room of countryside property right " trade. How should be the effectiveness of this kinds of contract maintained in so solid Wu? This period small organize union relevant case, viewpoint is told about for you.
Juridical regulation
1. villager will be in the villager that the building of the construction on all land sells village collective do not belong to this village, the contract is invalid -- Du Liquan appeals to Wu Jiaqing to wait for desk of dispute of contract of rural house business
Case argument: Be not this village villager to buy the house on collective land, because disobey " land management method " regulation, enroach on village collective is other member curtilage base access, the contract should be belonged to invalid.
Record date: Zi of another name for Hubei province returns civilian first word the 00780th
Cognizance court: Hubei saves Zi to put in prefectural people court 's charge
2. town dweller buys a country demesne the contract of the building is invalid -- record of appeal of Ma Haitao and dispute of contract of business of Li Yulan building
Case argument: Curtilage base access is the right that member of organization of rural collective economy enjoys, with the person that enjoy specific identity photograph is contacted, the member that be not this collective economy to be organized has no right to obtain or covert obtain. According to national policy, because the member that be not this collective economy to be organized buys a country curtilage base or building and the business contract that concludes with farmer place ought to be maintained invalid. The property that acquires because of this contract ought to give return still, cannot return return or not was necessary to return those who return, ought to compensation of convert into money. Sell a person of invalid to the contract negative main responsibility, ought to recoup the reliant profit loss of vendee.
Record date: (2007) 2 in civilian eventually word the 13692nd
Cognizance court: Beijing court of the 2nd intermediate people
Townsman buys 3. rural house ought to combine the history setting, existing have the consideration such as the relation its effectiveness, unfavorable and direct maintain to disable -- Ma Limin appeals to proposal of contract of business of Chen Baoyin building
Case argument: Because townsman buys the issue that rural house place causes, ought to combine the historical setting at that time to reach be helpful for safeguarding existing building to have relation angle to consider, cannot entirely is maintained to disable.
Record date: (2007) one in civilian eventually word the 9544th
Cognizance court: Beijing court of the first intermediate people
4. is right affirm " room of small property right " the dispute with business invalid contract wants integrated assess -- tell contract of business of the accused building issue desk formerly
Case argument: Invalid to affirming contract of business of miscarriage authority house dispute wants the accident according to delivery time, the area of the replacement cost price that links building itself, land compensate valence, make integrated assess. On one hand of mature building break up build, extend brings attach value, on the other hand consideration land appreciates, the building appreciates the brought huge economy profit that tears open change to find a place for compensation anticipates and the vast riches loss that the former one party that buy a house causes because of be being purchased afresh.
Judicatory viewpoint
One, rural house basically includes curtilage base building and " room of small property right " two kinds
With respect to broad sense character, alleged country house, it is to build at collective the building on all land, department posture makes at the building on state-owned land speech to be in what town district develops, basically include curtilage base building and " room of small property right " two kinds. Curtilage villager of base building department is in examine and approve use at living building from what build on base curtilage, it is the rural house on typical traditional sense.
Matter right law sets the 153rd times: "Curtilage the taking of base access, exercise and make over, applicable land manages law and the country such as the law to concern a provision. " land management method the 62nd the first section provision: "Rural villager can own one part only curtilage base, its curtilage the level that the area of base must not exceed province, municipality, municipality directly under the Central Government to set. " the 3rd regulation: "Rural villager residence uses ground classics country (town) people government examine and verify, by approval of government of prefectural class people; Among them, involve take up agricultural of the ground, according to 44 regulation deals with Benfadi examine and approve formalities. " afore-mentioned legal establish " an one place curtilage base " principle, the way that rural villager basically passes application and wins approval is obtained curtilage base access, because law, administrative regulations reachs sectional regulations to was opposite curtilage base access and curtilage base building droit registers hair card to undertake making clear formulary, the much in reality curtilage base and house of ground main rooms did not undertake counterpoising belonging to registering, in last few years this job is being advanced, look from the provision that concerns law, administrative regulations and policy at present and spirit, rural villager is enjoyed curtilage base access and curtilage base building droit, do not need to register as become effective important document, reason did not undertake counterpoising belonging to registering do not affecting the rural villager taking to these two rights.
And " room of small property right " be not legal concept, it is to point to commonly without legal proof the ground and examine and approve wait for a program, by village collective or town the government becomes independent or with estate development cartel is in the building that collective develops construction on all land. According to the regulation of matter right law, build at rural collective construction to use the land, even the rural house power that agriculture uses the ground to go up is belonged to, often depend on whether does wright obtain service to be examined and approve about land program, construction. Did not fulfill examine and approve a program legally, because disobey land government laws and regulations, wright cannot acquire building property, this kind of building is in vest in answers to violate a building on property, unavailable state law is approbated, also cannot deal with authority naturally to belong to register. Summary (" the 8th times civil trade issue tries countrywide court working conference (civil part) summary " ) did not involve latter the 19th times, be aimed at only however curtilage the case of base building business made a provision.
(pick from " civil trial guidance and reference (2017 · of the 1st collect always the 69th collect) " , top people court is civil try the first front courtyard to make up, people court press 2017 edition, 97-98 page)
2, according to national policy, people court should not support town dweller to ask the suit that buys a house in the country requests
Our country " matter right law " the 153rd regulation " curtilage the taking of base access, exercise and make over, law and the country such as method of applicable land management concern a provision " , and our country land manages law and its regulation to wait to was opposite curtilage the country on base demesne of the building make over make prohibit clearly sexual regulation. Make the earliest prohibit clearly what the gender sets is general office of the State Council promulgated 1999 " transfer management about enhancing land forbidden fry the announcement that sells land " , should inform the 2nd of the 2nd regulation, "The residence of the farmer must not sell to townsman, also must not approve townsman to build the house in farmer collective land, concerned branch must not break the law to extend for the house that build and buys land use card and house property card " . In November 2004, ministry of land natural resources " about strengthening a rural area curtilage the opinion of base management " set further again, "Forbidden town dweller is purchased in the country curtilage base, forbidden to town dweller is bought in the country and violate built house to extend land uses card " . On December 24, 2004, the State Council is in " the decision that about deepening reform firm land manages " in emphasize again: "Strengthen a rural area curtilage base management, prohibit town dweller is purchased in the country curtilage base. " on December 11, 2007, the State Council special to sit a meeting, emphasize carrying out land utility strictly to run a system again, town dweller must not be bought to the country curtilage base, buy rural house or " room of small property right " . From the point of these policy sex regulations, country to uphold order of rural collective land, it is all along severe strictly forbid stops town dweller buys rural house. And according to our country " civil code general rule " the 6th regulation, "Civil activity must abide by law, law does not have a regulation, ought to abide by national policy " . This shows, although rural house is OK buying and selling, but town dweller is to eliminate to be in however besides principal part of this contract comfortable case. Accordingly, should promulgate 1999 with general office of the State Council " transfer management about enhancing land forbidden fry the announcement that sells land " the carry out after maintain this announcement grants the contract of rural house business of town dweller is invalid.
(pick from " people court case is chosen " 2010 the 3rd collect (always the 73rd collect) , china of top people court applies law institute to make up, people court press 2011 edition)
3, town dweller buys principle of rural house contract to disable, but do not eliminate to maintain this kind to trade below exceptional special situation the contract is active
Prohibit rural collective land is on the move, prohibit town dweller buys rural house, it is the basic principle of active law and policy, relevant business contract is invalid, this is the cognizance that handles case of this kind of dispute fiducial perhaps say general principle. But the legislative tenet that maintaining trading safety, stability is contract law, be in specific a case is medium, in as main as state law, code, policy provision and spirit not afoul case falls, also can make agile processing according to actual condition. Reason town dweller buys principle of rural house contract to disable, but do not eliminate to maintain this kind to trade below exceptional special situation the contract is active, safeguard its contract effectiveness.
1. sells a person the building will be built to sell on base curtilage with town dweller before or at the same time, this building place is occupied curtilage base already turned because of collecting for state-owned land, be farmer identity formerly betray a person to also turn for town dweller, criterion curtilage base property has produced change, can hold deal house contract effective. If betray a person to sue what the request affirms building business contract is invalid, people court should not grant to support.
2. town dweller buys a country demesne after the building, if the building of place buying and selling has had the office that approves power,approval and organization of local collective economy agree, dealt with a building droit and curtilage base access produces adaptability in tactics to use procedure, obtain legal authority to belong to certificate, can hold deal house contract effective. If betray a person to sue what the request affirms building business contract is invalid, people court should not grant to support.
After 3. town dweller buys a house, already seat of building of ingoing of its registered permanent residence, application joins organization of local collective economy, turn those who be farmer identity, can hold deal house contract effective. If betray a person to sue what the request affirms building business contract is invalid, people court should not grant to support.
4. vendee, agreement signs although the person is town dweller identity, but its spouse or parents, children organizes a member to buy building seat collective, and member of family of the faculty when buying a house is collective and contributive, also be what live jointly, collective economy organization agrees with the village of content of its business contract. Can maintain lawfully buy a house jointly for the family, deal house contract is active. If betray a person to sue what the request affirms building business contract is invalid, people court should not grant to support.
5. is in on January 1, 1999 " land management method " before editing, rural villager makes over the building brethren of the cadre of settle of return to one's native place, worker, veteran and overseas Chinese, Hong Kong, Macao and Taiwan, should hold deal house contract effective. If betray a person to sue what the request affirms building business contract is invalid, people court should not grant to support.
6. passes the buying and selling, effectiveness that make over for many times to same building, can mix according to the identity of last hand vendee trade circumstance, processing principle is narrated to undertake judging cognizance before union. (Li Xin: " town dweller buys a country demesne the contract of the building is invalid " , carry " case of people judicatory · " , 2008 the 10th collect. )
The house of small property right that 7. town dweller buys, already government of people of prefectural class above was in a village to deal with to room of small property right relevant ask for the ground and sell one's own things, program, construction to check and accept, fill make gold of land sell one's own things, trade tax cost, perfected the legalization procedure that commodity house offers lawfully, can hold deal house contract effective, by contract party reasonable assume gold of concerned land sell one's own things, trade the charge such as tax cost.
(pick from " standard of standard of estate dispute judgment " , wu Qingbao is written, people court press 2009 edition, 300-301 page)
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