Liang** (raccoon of Erhai Lake).
A colleague handled a case of underground parking space**, winning first and then losing.
The facts of the case are not complicated. In 2017, the owner signed the "Subscription Letter for Commercial Housing Parking Spaces" at the same time as buying a house from the developer, with a price of 80,000 yuan, and agreed to terminate the contract if it could not be **, but it has not been able to handle the ownership certificate so far, because the handling authority, that is, the Natural Resources and Planning Bureau, which is not an outsider, replied to the developer on November 22, 2019 "At present, the Ministry of Natural Resources has not issued an opinion on the infringement registration of underground parking spaces, and our province has not issued specific rules for the confirmation and registration of underground parking spaces. "The developer asked for instructions again in writing on March 14, 2023, and the authority still gave an oral reply to the above content. The owner requested a judgment to terminate the parking space contract and refund 80,000 yuan.
The court of first instance upheld the contract on the grounds that although the contract could not be performed due to objective reasons, the purpose of the contract could not be realized, and if it was obviously unfair to continue to perform the contract, the owner had the right to terminate the contract, and the developer could exercise its rights to the ** authority after assuming responsibility, and the developer was ordered to return the purchase price of 72,000 yuan.
The court of second instance reversed the judgment and rejected the owner's claim on the following grounds: 1. The owner has become the owner after the delivery of the parking space;2. Qiong Banfa [2013] No. 4 clearly states that "the right to use construction land involved in underground space can be registered as immovable property in accordance with the law." Therefore, it has the legal conditions, but it does not have the operational conditions for the time being, but it can be applied for after the relevant registration rules are issued. 3. Article 209 of the Civil Code: "Immovable property rights shall not take effect without registration, unless otherwise provided by law." The owner has acquired exclusive ownership in accordance with the sales contract, which is "a circumstance otherwise provided by law". 4. The owner has actually occupied the parking space for 6 years, and the purpose of purchasing the parking space can be realized, and the termination conditions have not been fulfilled, and the contract should not be terminated.
After the judgment, the judge explained that the reason for the reversal of the judgment was that the termination of the contract was not supported in similar cases, and if the judgment in this case was dissolved, it would be a different judgment in the same case, which might intensify social contradictions and cause social instability, which is the so-called "social effect".
Is there any truth in the judge's statement?
Issue. 1. Is it contradictory to believe that the owner becomes the owner after the delivery of the parking space (1 in the second trial) and that he occupies the parking space (reason 4)?
Clearly contradictory to each other. Possessor and possessor are two completely different concepts. The possession after the delivery of the immovable property according to the contract belongs to the right to possess, but not the owner, otherwise the Civil Code and the Property Law do not need to be specifically stipulated**.
The judge's reasoning violates the law of contradiction: "In the same thinking process, two mutually negative thoughts cannot be the same truth, and one must be false." The content of the content, logical thinking is not clear.
Issue. 2. Does the owner's "acquisition of exclusive ownership" according to the sales contract fall under "circumstances otherwise provided by law"?
Obvious error. The so-called "circumstances otherwise provided by law" specifically refer to the circumstances stipulated in Article 1 of the Civil Code, such as the establishment of a real right as determined by the legal document when it takes effect, or the acquisition by factual acts such as inheritance or legal construction. Judges fail to understand basic legal concepts.
Issue. 3. Have the conditions for terminating the contract been fulfilled?
The latest point to determine whether a contract should be terminated is at the end of the arguments at trial. Whether the owner can apply for the ownership certificate and the time that the owner has actually occupied the parking space are two completely different concepts and issues, just as the law allows **but the facts cannot** as clear and clear. Both the Contract Law and Article 595 of the Civil Code stipulate that "the contract of sale isThe seller transfers ownership of the subject matterA contract in which the buyer pays the price. "Parking spaces are immovable property, and immovable property rights are not effective without registration, as long as the ownership certificate is not processed, the effect of real estate rights will never occur, but only legal possession, the protection of the two is really a world of difference. Since it can't, the owner's request to terminate the contract has a legal basis.
The termination of the contract will not cause damage to the rights and interests of the developer, because the return is not the full purchase price, but the amount after deducting the actual service life of the owner, that is, the developer does not have the loss of that time. After the developer takes back the parking space, it can be rented out to the outside world, and it can also get income.
Issue. 4. Will the judgment terminate the contract intensify social contradictions?
To put it bluntly, I am actually afraid of petitioning. Actually, there is no need to worry.
If the judgment is made to terminate the contract, the developer is nothing more than to apply for a retrial, a protest, or a petition, but as long as the judgment is made in accordance with the law, the judgment will not be changed anywhere.
However, if the judgment is made to terminate the contract, it is more likely to exacerbate social contradictions and cause social instability, because there are dozens or hundreds of owners who have bought parking spaces but can't do it, all of whom think that the judgment is unfair, and will doubt the credibility of the judiciary, and even suspect that the people of the judicial organs are biased towards the developer, picking up soft persimmons, and the result is large-scale appeals, petitions, and petitions, and the authorities at all levels are overwhelmed ......
In this sense, different sentences in the same case are a better way to eliminate social instability. Since the previous judgment was wrong, if the owner applies for a retrial, the judgment will be changed, and the court should be responsible.
If you know that a matter is wrong, you still want to make a mistake, and in the end, these erroneous judgments will become "guiding cases", which will damage the rights and interests of more property owners and the credibility of the judiciary.
It is very clear that adjudication according to law is the premise of ensuring legal effects, and talking about social effects aside from legal effects is a castle in the air.
The good scriptures have made the crooked mouth monk read crookedly.
Hainan Bangwei Law Firm: Liang Haixiong.