The question was raised
During the dispute process of the non-party execution objection lawsuit case, Article 29 of the "Enforcement Objection and Reconsideration Provisions" is based on the review of the property rights of housing consumers and is based on the purchase and consumption of houses. Taking into account the basic rights of survival of the victims, special priority protection will be given.
Article 29 of the "Regulations on Enforcement Objections and Reconsideration" stipulates: "During the execution of monetary claims, the buyer raises objections to the commercial housing registered in the name of the real estate development enterprise being executed, and meets the following circumstances and its rights can be excluded from execution. , the People’s Court should support:
(1) A legal and valid written sales contract has been signed before the people's court seized it;
(2) The commercial house purchased is for residence and there are no other houses for residence in the name of the buyer;
(3) The price paid exceeds Fifty percent of the total price agreed in the contract”
The above provisions stipulate a total of three constituent elements. They are:
① debt behavior before seizure
② the only right of residence and expectation
③50% payment
This judicial interpretation clause was created to prioritize the rights enjoyed by ordinary people when purchasing the real estate involved in the case. But are the above constituent elements strictly applicable, or can the interpretation be further expanded?
How to judge when the property rights and expectations of housing consumers encounter other priorities?
What should I do if the time difference between the time before and after the seizure is only a few days or hours?
We can get a glimpse of this from a case of Supreme People's Court changing the sentence.
Case index (in chronological order)
① May 21, 2012, Hongyuan Company (the first instance of the lawsuit against execution objection by an outsider, the third party in the second instance, the person subject to execution ) As Party A , Rural Commercial Bank Dadong branch Bank (the defendant in the first instance of the lawsuit against execution objection by an outsider, the appellee in the second instance, and the applicant for execution.) As Party B, the two parties signed a " Loan Contract", stipulating that Hongyuan Company pay Rural Commercial Bank Dadong Branch borrowed 250 million yuan for real estate development.
On September 11, 2012, the two parties signed another "Maximum Mortgage Contract", Hongyuan Company used the projects under construction, including the property involved in the case, as loan collateral.
② On October 23, 2014, the court of first instance issued the (2014) Liao Min Er Chu Zi No. 54 Civil Ruling, preliminarily sealing the properties developed by Hongyuan Company , including the properties involved in the case.
Shenyang Real Estate Registration Center inquired about the situation. The pre-seizure date of the property involved in the case was October 29, 2014.
③ October 31, 2014, Zhao Chunpu (defendant in the first instance, appellant in the second instance, and applicant for execution in the lawsuit against execution by outsiders) and Hongyuan Company signed the " Commercial House Sales Contract " and purchased the property involved in the case developed by Hongyuan Company for a total price of 463,000 yuan. Zhao Chunpu has paid the entire purchase price of 463,000 yuan. Hongyuan Company issued a "unified invoice for the sale of real estate" for Zhao Chunpu on November 27, 2015. The invoice amount was 463,000 yuan. On November 27, 2015, the property management company issued a building inspection and acceptance confirmation form for Shenyang's "Mansion No. 50" signed by Zhao Chunpu. Zhao Chunpu paid the property fee, heating fee, water fee, electricity fee, garbage removal fee and other expenses. Zhao Chunpu has moved into the property involved in the case.
④ Because Hongyuan Company failed to repay all the principal and interest of the arrears when due, Dadong Branch of Rural Commercial Bank sued the court of first instance.The court of first instance issued the (2014) Liao Min Er Chu Zi No. 00054 Civil Judgment on December 9, 2014.
The Supreme People’s Court issued (2015) Civil Judgment No. 127 on September 22, 2015, rejecting the appeal and upholding the original judgment.
⑤ Northern Construction Company (action against enforcement by outsiders, defendant in the first instance, appellant in the second instance. Applicant for execution) based on Hongyuan Company Construction project construction contract dispute case enjoys the priority right to be compensated for the construction project price . According to the civil judgment of the first instance court (2016) Liao Minzhong No. 610, on October 25, 2016, the first instance court issued (2015) Liao Zhizhi The execution ruling No. 65 resulted in the seizure of the above-mentioned properties. During the execution of
⑥, the outsider Zhao Chunpu filed a written objection. On May 24, 2019, the court of first instance issued the (2019) Liao Zhiyi No. 12 execution ruling, rejecting Zhao Chunpu’s objection request
⑦ Zhao Chunpu then filed a lawsuit against the execution of with the court of first instance. ( Note: This case was a lawsuit filed by a party outside the case to object to execution. It was not a lawsuit against execution. The Supreme People's Court corrected it. .).
Court decision
First instance: Liaoning Provincial Higher People’s Court (2019) Liao Minchu No. 124
Result:
1. It is confirmed that the property involved in the case is owned by Zhao Chunpu;
2. The property involved in the case shall not be executed.
Reasons:
Facts :
1. Zhao Chunpu signed the "Commercial Housing Sales Contract" with Hongyuan Company, paid the full payment, and has moved into the property involved in the case. Although there is a house under Zhao Chunpu's name, according to the "House Electronic Registration (Book) Inquiry Certificate", it is for commercial use and is not a house for residence.
2. On October 23, 2014, the court of first instance issued the (2014) Liao Min Er Chu Zi No. 54 Civil Ruling, sealing up multiple properties including the property involved in the case. Although the contract signed between Zhao Chunpu and Hongyuan Company was October 31, 2014, it was later than the time when the court seized the house in this case.
Theory :
In this case, Zhao Chunpu is a consumer purchasing a house, and the rights he enjoys require special protection. Moreover, he signed the house sales contract with Hongyuan Company only a few days after the court sealed it. This should not be the reason. Simply deny the priority of Zhao Chunpu’s rights as an ordinary citizen to purchase the real estate involved in the case. Because the specific circumstances of each case are different, the above legal provisions should be flexibly grasped in judicial practice to avoid rigid application of the law and causing an imbalance of interests.
First of all, we should judge the nature of the rights enjoyed by Zhao Chunpu, the outsider in the case, over the subject matter of execution. In view of the fact that Zhao Chunpu has paid the full payment and has actually owned the property involved in the case for many years, although the property involved in the case has not been registered for property rights, Zhao Chunpu has no subjective fault.
Second instance: (2021) Supreme Court Civil Final No. 988
Result:
1. Revoke the Liaoning Provincial Higher People’s Court’s (2019) Liao Minchu No. 124 Civil Judgment;
2. Dismiss Zhao Chunpu’s lawsuit.
Reason:
In this case, Dadong Branch of Rural Commercial Bank has mortgage rights and Northern Construction Company enjoys the priority right to receive payment for the construction price of the property involved in the case. If Zhao Chunpu claims that as a purchaser of commercial housing, has rights sufficient to exclude compulsory execution with respect to the disputed execution subject matter of this case, Article 4 of the "Provisions on Objections to Enforcement and Reconsideration" shall apply. Twenty-nine provisions.
On October 23, 2014, the court of first instance issued the (2014) Liao Min Er Chu Zi No. 54 Civil Ruling, preliminarily sealing multiple properties including the properties involved in the case. After inquiries by this court, the date of pre-sealing of the property involved in the case by the Shenyang Real Estate Bureau was October 29, 2014. This date should be used as the date of the people's court sealing the property involved in the case. Although Northern Construction Company was waiting to seize the property involved in the case, it was March 10, 2017, later than Zhao Chunpu signed the contract with Hongyuan Company The date of the "Commercial Housing Sales Contract", , however, the priority right to receive payment for the construction project price enjoyed by Northern Construction Company belongs to the category of statutory priority. Its essence is to use the exchange value of the construction project to guarantee the realization of the creditor's rights of the project payment. This right is superior to that of farmers. The commercial bank’s Dadong Branch has mortgage rights and other claims on the property involved in the case.
Since the court of first instance in this case had pre-inspected and sealed the property involved in the case on October 29, 2014, the court of first instance on May 16, 2017 The Shenyang Intermediate People's Court has agreed in accordance with the law to dispose of the properties that Northern Construction Company has the priority to receive compensation. Northern Construction Company can claim in this case that October 29, 2014 is the time when the properties involved in the case were first seized. The date when Zhao Chunpu and Hongyuan Company signed the "Commercial Housing Sales Contract" was October 31, 2014, which was later than the time when the people's court seized the property involved in the case. Therefore, Zhao Chunpu did not comply with Article 20 of the "Provisions on Enforcement Objections and Reconsideration" Article 9 stipulates that in the first situation, the subject of execution in this case does not enjoy civil rights and interests that are sufficient to exclude compulsory execution.
Practical summary
The legal relationship of this case is not complicated, and there is construction project price priority . The maximum insured amount of security interest generated based on the loan contract. There is also consumer housing property rights expectation rights .
According to "Provisions on Objections to and Reconsideration of Execution" Article 27
The person applying for execution enjoys the security rights and other priority rights to compensation against persons outside the case in accordance with the law. The people's court will not reject the objection to the exclusion of execution raised by persons outside the case. Supported, unless otherwise provided by law or judicial interpretation.
We can know that the priority of the person applying for execution to the security rights and other rights of persons not involved in the case is not enough to exclude execution. However, consumers’ rights to expect ordinary housing property rights raised by outsiders have been strongly protected. That is, Article 29 of "Provisions on Enforcement Objections and Reconsideration" .
During the execution of monetary claims, if the buyer raises objections to the commercial housing registered under the name of the real estate development enterprise subject to execution and meets the following circumstances and its rights can be excluded from execution, the People's Court shall support it:
(1) In A legal and valid written sales contract has been signed before the people's court seized it;
(2) the commercial house purchased is for residence and there are no other houses for residence in the name of the buyer;
(3) the price paid exceeds the total price agreed in the contract Fifty percent of the payment.
In this case, Zhao Chunpu, who is the outsider in the case, meets the requirements for ordinary consumers’ expectation of housing property rights. It is the focus of this case.
1. Zhao Chunpu has paid the entire house payment, which meets the third component.
2. Zhao Chunpu has no other houses for living in his name. Meet the second component. But the problem is that Zhao Chunpu has commercial housing in his name. It is not a pure property right expectation of ordinary consumers towards housing. This is explained in the above-mentioned request of Northern Construction ,
In addition, the review of whether there is a house for living in the "name of the buyer" includes not only Zhao Chunpu himself, but also his spouse and minors. In the review of the house in the name of the children, as long as one of the three has a house in their name, it should be determined that the buyer has a house that can be used for living in. When the court of first instance did not provide evidence that Zhao Chunpu had no real estate in his name, his spouse’s name, or his minor children’s names, and did not investigate this ex officio, it directly determined that there was no house in Zhao Chunpu’s name that could be used for living. The facts are unclear.The above-mentioned commercial house under Zhao Chunpu's name is located in a prosperous business district with an area of 150.24 square meters. It can be indirectly seen that Zhao Chunpu's life is not poor. His consideration of the basic right to survival does not involve the real estate involved in the case, so he does not It should be given special priority protection
, but the judgment of the Supreme People's Court avoided elaborating on this issue.
3. Was a legal and valid written sales contract signed before the seizure? The Supreme People's Court held that it was not consistent.
The Supreme People's Court's view is that the time point of seizure is not based solely on the application of the other party to seal . Rather, it involves the seizure of the entire property involved. In other words, regardless of whether is blocked, who will block ? Even if both parties are not involved in the case, the application for seizure is in line with the time node of the seizure. This satisfies the requirements for seizure.
Keywords
A lawsuit against execution by an outsider Article 29 Seizure time node
