**。Validity of the contract (ii).
Directory. 1. The relationship between mandatory provisions and prohibitive norms.
2. The rule of not having the right to dispose of a contract.
III. The counterparty's obligation to review the authority of the legal representative.
IV. Determination of Conduct in Duties: Special authorization should still be obtained for major matters.
5. Presumption of exceeding authority.
6. Seals, signatures and validity of contracts.
VII. Determination of malicious collusion.
8. Alternatives to non-return of property.
9. At the same time as the price or remuneration is returned, the fund occupation fee and the use fee may be claimed.
Following the previous part, the author devotes nearly 10,000 words to explaining Articles 18 to 25 of the Judicial Interpretation. Because I read part of the judicial interpretation on December 5, I felt that the theory is profound and the logic is rigorous, which also puts forward higher requirements for the learner's own theoretical knowledge base, otherwise, it will be difficult to understand, especially to thoroughly understand the legal theory behind it, and apply the new interpretation to the court's reasoning. I didn't know until yesterday when I saw the article in "People's Justice".The drafting group for this judicial interpretation was written by seven doctors of law from the Supreme People's Court, is indeed a strong lineup, no wonder the author has the aforementioned feeling.
The judicial interpretation of the General Principles of Contract Codification of the Civil Code has been fed back from trial practice to the understanding and application of law and has become a judicial interpretation, representing the level of the Supreme Court's combination of theory and practice. The representative interpretation is that in the trial practice (Part 6 of this article), some companies use multiple official seals to evade contractual liability, and the judicial interpretation plugs this loophole: a fake official seal is not enough to negate the validity of the contract.
Nonetheless, there are too many uncertainties in judicial interpretation, which is also the room for discretion.
The author still believes that as a lawyer, it is not responsible for studying advanced theories, but from the perspective of appearing in court to litigate, to deeply study the legal principles behind the judicial interpretationLearning is the confrontation of rights in a mock trial, and then transforming it into a legal opinion with a theoretical level, which is a prerequisite for doing a good job of legal counsel and court appearance.
The views in this article are inevitably fallacious, and everyone is welcome to correct them.
Articles 14 and 16 of the judicial interpretation provide for the determination of the validity of a contract in violation of mandatory norms. Article 18 is the issue of determining the validity of a contract that violates a prohibitive norm or a prescriptive norm.
Although the provisions of laws and administrative regulations contain expressions such as "shall", "must" or "shall not", the purpose of such provisions is to restrict or confer civil rights, and the actor's violation of such provisions will constitute a lack of authority to dispose of, a lack of authority, a representative exceeding authority, etc., or cause the contract counterparty or a third party to obtain civil rights such as the right of revocation or rescission, the people's court shall determine the validity of the contract in accordance with the civil legal consequences of violating the provisions of laws and administrative regulations.
According to the theory of "relative invalidity" summarized by the author, the violation of mandatory provisions does not lead to the invalidity of the contract, and if the "mandatory provisions" here are a whole, then the provisions of laws and administrative regulations such as "shall", "must" or "shall not" in this article refer to specific norms or provisions. The author calls them specific "peremptory norms".
The legal consequences of a breach of a specific peremptory norm are to determine the validity of a contract with respect to the legal consequences resulting from the violation of that norm.
In this regard, the drafting group of the judicial interpretation further explained: "For a long time, due to the failure to recognize the particularity of such empowering or restrictive provisions, many judges have simply found the contract invalid on the grounds that it violates mandatory provisions, or found that the contract is valid on the grounds that the provision is not a mandatory provision of validity. Article 16 of the Company Law has been erroneously applied in practice for a long time because the vast majority of people have been caught up in the debate over whether the provision is mandatory or non-effective.
In our view, it is inappropriate to interpret it as a mandatory provision of validity or a mandatory provision of non-validity, because such a provision is an enabling or restrictive provision, and the legal consequences of violating such provisions should be determined according to the specific provisions of the Civil Code, and the validity of the contract should be determined accordingly, rather than by applying the provisions of paragraph 1 of Article 153 of the Civil Code. ”
The determination of whether a contract is valid or invalid based on the civil legal consequences of violating this provision shows that the violation of the prohibitive norm is still relatively valid, rather than absolutely invalid. That is, it is generally said in civil law that the invalidity of part does not affect the validity of other parts. The measure of absolute invalidity is the legal consequences of civil juristic acts.
Article 597 of the Civil Code only provides for sales contracts concluded without the right to dispose of them, but does not provide for other contracts without the right to dispose of them, so it is necessary to apply the rules of the sales contract without the right to dispose of them by analogy to the occasions when there is no right to dispose of other contracts, such as mortgage contracts, pledge contracts, etc.
Paragraph 1 of Article 19 of the Judicial Interpretation states that in a contract concluded for the purpose of transferring or creating property rights, the court respects the parties' right of determination and formation.
Therefore, if the parties or the real rights holder claim that the contract is invalid solely on the ground that the transferor does not have ownership or right to dispose of the subject matter at the time of entering into the contract, the people's court will not support it. This subverts the traditional theory that there is no right to dispose of a contract "the validity is to be determined", and instead directly determines that the contract is valid.
The SPC's design of the rules for disposition without authority is very wise. It is embodied in the relationship between several characters and their legal remedies, highlighting the principle of encouraging transactions. However, if the real right holder does not recognize it afterwards or Zhang San does not acquire ownership after the fact, what should be done with the valid contract?
There are two principles here, one is to encourage trading and the other is contractual relativity.
First, as between the grantor and the assignee, the purpose of the contract and its conduct are protected. This is because the fact that the transferor does not have the right to own or dispose of the subject matter at the time of conclusion of the contract is not a reason for the contract to be invalid. The contract is valid.
For example, a contract for the transfer of property. Zhang San and Li Si entered into a contract to transfer the large-scale equipment that Wang Wu** gave to Zhang San to Li Si. Afterwards, since Wang Wu did not delay the delivery of the equipment, Li Si filed a lawsuit with the court to confirm that the contract was invalid, on the grounds that Zhang San did not have the ownership of the equipment and could not be supported by the court.
This is because the intentions of Zhang San and Li Si are true and there is no reason for invalidity, and whether they have ownership and whether they have ownership after the fact depends on various factors, but whether these factors or conditions are met is not a reason for determining that the contract is invalid. Additional remedies may be provided.
Secondly, although the assignee cannot claim that the contract is invalid on the ground that the transferor has no ownership, it has the right to terminate the contract and receive compensation.
For encouraging transactions, the parties may actively obtain the recognition or acquisition of ownership by the real right holder, so as to make the transaction proceed smoothly, which is in line with the purpose of the parties' contract. If the contract cannot be performed due to the failure to obtain the consent of the real right or the transferor's failure to obtain the right of disposition after the transferor, and the transferee claims to terminate the contract and requests the transferor to bear the liability for compensation for breach of the contract, the people's court shall support it in accordance with law.
The assignee claims against the transferor for the termination of the contract and compensation based on the principle of privity of contract. This makes civil litigation very economical, and reduces the burden of proof and procedural costs caused by "pending validity".
When the person who has no right to dispose of the property has actually delivered the property to the transferee, for the protection of the real right holder, the real right holder may request that the property right be determined that there has been no change or request the return of the property, but if the transferee is in good faith, this right cannot be supported, and the real right holder shall make a corresponding claim against the transferor.
Where the legal representative of a legal person or the responsible person of an unincorporated organization concludes a contract beyond his authority, the act of the representative is valid, and the contract concluded is effective against the legal person or unincorporated organization, unless the counterparty knows or should know that he has exceeded his authority.
For example, the Company Law stipulates that certain matters shall be resolved by the general meeting of shareholders, otherwise, only the "representative" of the legal representative will not take effect. In this case, if the legal representative acts without the authorization of the competent authority, what effect will it have on the counterpart?
And how to determine that "the counterparty knew or should have known that it exceeded its authority"?Therefore, Article 20 of the judicial interpretation gives the counterpart the "obligation to review" the authority of the legal representative: in order to limit the representation of the legal representative of a legal person or the person in charge of an unincorporated organization, laws and administrative regulations stipulate that the matters involved in the contract shall be decided by the power or decision-making body of the legal person or unincorporated organization, or shall be decided by the executive body of the legal person or unincorporated organization, and the legal representative or responsible person shall conclude a contract in the name of the legal person or unincorporated organization without authorizationFailure to fulfill the obligation of reasonable reviewWhere the counterparty claims that the contract is effective against the legal person or unincorporated organization and that it bears liability for breach of contract, the people's court will not support it, but where the legal person or unincorporated organization is at fault, it may be judged to bear the corresponding liability for compensation with reference to the provisions of article 157 of the Civil Code.
Where the counterpart has already fulfilled the obligation of reasonable review and constitutes an apparent representative, the people's court shall handle it in accordance with the provisions of article 504 of the Civil Code.
The apparent representation is valid, provided that the counterparty has fulfilled the duty of reasonable review, and at the same time, there is an implied burden of proof: unless the counterparty knows or should know that the legal representative's right of representation is restricted.
Compared with the restrictions imposed by laws and regulations on the legal representative or responsible person, there are also restrictions on the right of representation imposed by the internal charter or authority of a legal person or unincorporated organization. The two are very different in their effectiveness against their counterparts.
In this regard, the second paragraph of Article 20 of the judicial interpretation stipulates that the internal restrictions imposed by a legal person or unincorporated organization on its representative or responsible person are not sufficient to oppose the counterpart: if the matters involved in the contract do not exceed the representative authority of the legal representative or responsible person as provided by laws and administrative regulations, but exceed the restrictions on the right of representation by the legal person or unincorporated organization's charter or authority, and the counterparty claims that the contract is effective against the legal person or unincorporated organization and that it bears liability for breach of contract, the people's court shall support it in accordance with law. However, this is not the case where legal persons or unincorporated organizations present evidence to prove that the counterparty knew or should have known of the restriction.
The simple wording of this paragraph is that the restriction on the representation of the legal representative or responsible person within a legal person or unincorporated organization shall not have effect against the counterpart, unless evidence is adduced to prove that the counterpart is aware of the restriction.
Where, after a legal person or unincorporated organization bears civil liability, it recovers losses caused by the ultra vires representative or responsible person from the legally-designated representative or responsible person who is at fault, the people's court is to support it in accordance with law. Where laws and judicial interpretations have other provisions on the civil liability of legal representatives or responsible persons, follow those provisions.
The determination of professional conduct has always been a difficult issue in adjudication. In this regard, the drafting group believes that the Civil Code stipulates that the civil code stipulates that the assignment of duties is a specific circumstance of entrustment, so that the granting of duties is understood as a general act of authorization. It is worth noting that this kind of general authorization is very likely to give rise to transaction security issues.
In our view, general authorization only exists in the context of routine transactions, and for non-routine major transactions, the person performing the work tasks of a legal person or unincorporated organization should still obtain special authorization from the legal person or unincorporated organization to enter into a contract in the name of the legal person or unincorporated organization, otherwise, it is an act beyond the scope of its authority. ”
Article 21 of the judicial interpretation stipulates that where a staff member of a legal person or unincorporated organization enters into a contract in the name of a legal person or unincorporated organization on matters beyond the scope of his or her authority, and the counterparty claims that the contract is effective for the legal person or unincorporated organization and that it bears liability for breach of contract, the people's court will not support it. However, where a legal person or unincorporated organization is at fault, the people's court may make a judgment with reference to article 157 of the Civil Code that it bears the corresponding liability for compensation. Where the circumstances described above constitute superficiality, the people's courts shall handle it in accordance with the provisions of article 172 of the Civil Code.
In short, a contract entered into with respect to a staff member of a legal person or unincorporated organization on matters beyond the scope of his or her competence is ultra vires and in principle not binding on the legal person or unincorporated organization. As a counterpart, the legal person or unincorporated organization may be required to bear fault liability. However, if his act of exceeding his authority makes the counterpart believe that he has ** power, it constitutes an appearance of ** and the act is valid.
There can be no doubt that paragraph 1 of this article imposes a burden of proof: "the terms of reference of the staff member". This is the criterion for defining whether a staff member's conduct is ultra vires. At the same time, it is also a precautionary measure in case the ultra vires is invalid and the apparent validity cannot be determined: inform the counterparty of the work terms of reference of the staff in advance. Otherwise, it is highly likely that the ultra vires act will become superficial and make the contract valid.
In other words, there is uncertainty about the consequences of a contract entered into by a staff member who exceeds his or her authority. It may be found to be invalid, or it may constitute an apparent case, which is also the author's deepest feeling in the relevant case, and the key is how to prevent it in advance.
It is very difficult to determine how the counterparty knew or should have known that the legal representative or his staff did not exceed his authority, and it is also difficult for the counterparty to present evidence. For this reason, it is necessary to give presumptions to some situations that conform to the internal logic, i.e., acts that meet the relevant circumstances can be found to exceed authority:
In any of the following circumstances, the people's court shall find that the staff of a legal person or unincorporated organization exceeded the scope of their authority when concluding the contract:
1) Matters that shall be resolved by the power or decision-making bodies of legal persons or unincorporated organizations in accordance with law. For example, matters that require a resolution at the shareholders' meeting or the partners' meeting.
2) Matters that shall be decided by the enforcement body of a legal person or unincorporated organization in accordance with law. For example, matters that need to be decided and implemented by the board of directors and the board of directors.
3) Matters that shall be carried out by the legally-designated representative or responsible person on behalf of the legal person or unincorporated organization in accordance with law. It can be referred to as a legal representative matter. For example, it is often stated on the contract signing page that "signed by the legal representative", and in this case, the staff member signs on behalf of the staff without authorization, which is ultra vires.
4) It is not a matter that can be handled in accordance with its authority under ordinary circumstances. That is, matters that do not fall within the scope of the competence according to common sense.
Presumptive exceptions. Where the matters involved in the contract do not exceed the scope of authority determined in accordance with the preceding paragraph, but exceed the restrictions imposed by legal persons or unincorporated organizations on the scope of authority of staff, and the counterparty claims that the contract is effective for legal persons or unincorporated organizations and that they bear liability for breach of contract, the people's court shall support it. However, this is not the case where legal persons or unincorporated organizations present evidence to prove that the counterparty knew or should have known of the restriction.
It is indeed difficult to understand that the provisions of that paragraph are logically related to the first paragraph. The first paragraph states that "a staff member enters into a contract in the name of a legal person, an unincorporated organization in respect of matters beyond his or her competence" shall be void unless it constitutes a prima facie case**. This paragraph refers to "beyond the limits of the terms of reference of legal persons and unincorporated organizations on staff members", and there is a conceptual difference: the former is "matters within the scope of the competence" and the latter is "the limitation of the terms of reference". The former is not within the terms of reference of the staff member, and the latter is within the terms of reference but with limitations. Fundamentally different.
This actually establishes two scopes: one is that the contract matters do not exceed the four presumptive matters listed, which is a large scope, but it goes beyond the limitation of the staff's authority, which is a small scope, and logically speaking, the latter and the former constitute a "containment" relationship, therefore, we can conclude that as long as the staff member's ultra vires act does not exceed the scope of authority, unless the legal person or unincorporated organization adduces evidence to prove it, that is, the evidence prevention mentioned above has been achieved, the contract is valid.
Where legal persons or unincorporated organizations recover compensation from staff members who have intentionally or grossly negligent after they bear civil liability, the people's courts are to support it in accordance with law.
Some companies intentionally engrave two or even more sets of official seals, and some legal representatives or ** people even privately engrave official seals, and maliciously affix non-filing official seals or fake official seals when concluding contracts. The most representative is the engineering team, in addition to the official seal of the company, each engineering team may also have various official seals.
With regard to seals, Article 22 of the Judicial Interpretation stipulates the following situations: real signatures and false official seals, only signatures but no seals, and only seals but no signatures. In these cases, the authenticity of the official seal and signature and the validity of the contract are regulated separately.
The representative's act did not exceed his authority, and a fake official seal was not sufficient to negate the validity of the contract. Where the legally-designated representative, responsible person, or staff member concludes a contract in the name of a legal person or unincorporated organization and has not exceeded their authority, and the legal person or unincorporated organization claims that the contract is not effective on the grounds that the seal affixed to the contract is not a record seal or is a forged seal, the people's court will not support it.
In the case of a signed and sealed contract, as long as the signature is genuine and does not exceed the authority of the signatory, even if the official seal is fake, the contract is still valid.
Unless otherwise agreed, even if not sealed, the act of representation is sufficient for the contract to be valid. Where a contract is concluded in the name of a legal person or unincorporated organization, but only the legally-designated representative, responsible person, or staff member signs or fingerprints without affixing the seal of the legal person or unincorporated organization, and the counterparty can prove that the legally-designated representative, responsible person, or staff member did not exceed their authority when concluding the contract, the people's court shall find that the contract is effective against the legal person or unincorporated organization. However, the parties have agreed that the affixing of a seal shall be a condition for the conclusion of the contract.
Unless both parties agree that the official seal must be affixed, the signature of the authorized person is sufficient for the contract to take effect. This is what the author generalizes: the signature is more effective than the official seal.
It is valid after being proved by the counterparty. Where the contract is only affixed with the seal of the legal person or unincorporated organization without the signature or fingerprint of the person, and the counterpart can prove that the contract was concluded within the scope of their authority, the people's court shall find that the contract is effective against the legal person or unincorporated organization.
In the determination of the validity of a contract with only an official seal but not signed by the relevant personnel, the burden of proof is shifted to the counterparty. The legal reason why the counterpart is required to provide evidence is to prevent the theft of official seals or other collusive acts that may cause damage to the interests of others. Therefore, the counterparty's proof is tantamount to making up for the process of concluding the real contract, and indirectly proves that the affixing of the official seal is the real contract.
In the circumstances provided for in the preceding three paragraphs, where the legal representative, responsible person, or staff member exceeds the authority of the representative or the employee when concluding the contract, but constitutes an apparent representative in accordance with the provisions of Article 504 of the Civil Code, or constitutes an apparent representative in accordance with the provisions of Article 172 of the Civil Code, the people's court shall determine that the contract is effective against the legal person or unincorporated organization.
The last paragraph is sufficient to show that the final determination of the court in the existence of the above complex circumstances is uncertain from the perspective of judicial trial practice. Because any case ultimately needs evidence to determine, there is only one way to make uncertainty certain, that is, to do a good job of evidence in advance, and only in this way can uncertainty become certain.
This is the guiding function of the law, and at the same time, it is also the lawyer's ability to prevent risks.
In traditional civil law, malicious collusion often harms the interests of others. However, what should I do if the representative, the first person and the counterparty maliciously collude to damage the interests of the legal person or unincorporated person where the representative or the first person belongs?
For example, Zhang San was the legal representative of Company A, and he colluded with Li Si to sign a contract in order to cash out his equity as soon as possible, which would result in Company A having a liability sufficient to cover Zhang San's equity. What is the effect of this collusion between Zhang San and Li Si on Company A?
The Civil Code encourages transactions, and at the same time, it also severely cracks down on malicious collusion to harm the interests of others. Therefore, where the legal representative, responsible person, or ** person maliciously colludes with the counterpart to conclude a contract in the name of a legal person or unincorporated organization, harming the lawful rights and interests of the legal person or unincorporated organization, and the legal person or unincorporated organization claims not to bear civil liability, the people's court should support it.
The legal principle here is that the legal representative or person is a natural person, and the corporate legal person or unincorporated organization has a "personality" independent of the legal representative and the person in charge, and enjoys its own legal rights alone. Therefore, when a natural person colludes with a counterparty to damage the legitimate rights and interests of a legal person or an unincorporated organization, they have the right to request the legal representative, the person in charge or the person in charge and the counterparty to be liable for the losses suffered as a result, so Article 23 of the judicial interpretation stipulates that Company A may request the court to order Zhang.
3. Li Si is jointly and severally liable for the losses suffered by Company A, and the court should uphold it.
In this regard, the Company Law also strictly stipulates that the shareholders and other senior management personnel of the company shall not take advantage of the company's legal person status or the limited liability of shareholders or the use of affiliated relationships to damage the interests of the company, otherwise they shall be jointly and severally liable for compensation. This is an effective convergence of civil and commercial law, which resolves the dispute in previous civil cases over the form of liability of the company's senior management to the company.
Again, of course, back to the fundamental question of proof: how to prove the existence of malicious collusion?The third paragraph of this article provides: On the basis of the evidence adduced by legal persons or unincorporated organizations, and comprehensively considering factors such as the trading habits between the parties, whether the contract was obviously unfair at the time of conclusion, whether the relevant persons obtained improper benefits, and the performance of the contract, if the people's court can determine that there is a high probability of malicious collusion between the legal representative, the responsible person, or the person and the counterparty, it may require the aforementioned persons to make statements or provide corresponding evidence on the relevant facts such as the process of conclusion and performance of the contract. Where they refuse to make a statement without a legitimate reason, or the statement they make is unreasonable and they cannot provide relevant evidence, the people's court may find that the fact of malicious collusion is established.
Analyze and interpret the burden of proof and the standard of proof here. First of all, it is the legal person or unincorporated organization of the company that needs to adduce preliminary evidence and submit it to the court for review based on various factors. Secondly, when the preliminary evidence reaches the standard of high probability, that is, it cannot eliminate the judge's reasonable doubt or shake his inner conviction, the court will require the legal representative and the person to make a statement on the process of contract conclusion and performance, and may also require him to provide evidence. Finally, if the former person refuses to make a statement, according to common sense, refusing to explain something that is unfavorable to him is regarded as acquiescing in the existence of the unfavorable fact. Although he made a statement, the unreasonable statement was not supported by evidence, and the court could find that it was malicious collusion.
In this regard, the drafting group gave a clear explanation: "The burden of objective proof and the subjective burden of proof should be strictly distinguished, and after the party with the objective burden of proof submits preliminary evidence that can make the adjudicator believe that there is a high probability of malicious collusion, the subjective burden of proof can be transferred to the other party, and the legal representative, responsible person or counterparty shall make a statement or provide relevant evidence in their possession on the relevant facts such as the process of concluding and performing the contract." Where they refuse to make a statement without a legitimate reason, or the statements they make are unreasonable and they refuse to submit relevant evidence, the people's court may find that the fact of malicious collusion is established. ”
Please note that this is only a provision of the judicial interpretation, and it is far more complicated to interpret the provisions in trial practice and then to review specific evidence. Therefore, fighting a lawsuit is to fight evidence, and in the end, it is necessary to have evidence thinking, evidence awareness, and form the habit of evidence reserve.
If the contract is not established, invalid, revoked or determined to be invalid, the parties have the right to request the return of the property, but the property involved has been re-transferred or consumed
It is the principle to return what can be returned, and to compensate for the discount that cannot be returned.
However, when it cannot be returned, Article 14 of the Judicial Interpretation provides an alternative.
1) Separately or in combination, the method of returning property shall be applied to achieve effective return. Where, upon examination, the court has examined the existence of property or that there is a substitute that can be returned, the people's court shall, on the basis of the specific circumstances of the case, apply methods such as returning the subject matter in possession and correcting the records in the register, either separately or in combination;
2) Discount compensation. Where the property cannot be returned after review or there is no need to return it, the people's court shall make a judgment on the basis of the market value of the property or the value reasonably calculated on the date on which the contract is found to be invalid, invalid, revoked, or determined to be ineffective.
3) Compensation for losses. In addition to the circumstances provided for in the preceding paragraph, where the parties also request compensation for losses, the people's court shall, in consideration of the circumstances of the return of property or compensation at a discount, comprehensively consider facts such as gains from the appreciation of property and losses from depreciation, and expenses of transaction costs, and reasonably determine the amount of compensation for losses in accordance with the degree of fault and causal force of both parties, and in accordance with the principles of good faith and fairness.
The above-mentioned provisions on compensation for losses support the author's assertion, and the court does not support profit through breach of contract or compensation. The compensation for losses in civil law follows the principle of compensation for actual losses.
4) Handling of suspected violations or crimes. When a contract is not established, invalid, revoked, or determined to be ineffective, and the parties' conduct is suspected of being illegal and has not been dealt with, which may lead to one or both parties obtaining improper benefits through the illegal act, the people's court shall submit a judicial recommendation to the relevant administrative department. Where a party's conduct is suspected of a crime, the case leads shall be transferred to the criminal investigation organs;Where it is a private criminal prosecution case, the parties shall be informed that they may separately initiate litigation in the people's court with jurisdiction.
It can be seen from the provisions of the preceding paragraph that because the contract is not established, invalid, or determined to be invalid, and the dispute is often only related to the return of property and compensation for losses, the court will deal with cases involving the intersection of criminal and civil law and pedestrian and civil casesIt is not premised on the first resolution by other organs
If the contract is not established, invalid, revoked, or determined to be ineffective due to various reasons, the property shall be returned or compensated at a discount in accordance with the principles of Article 157 of the Civil Code.
When the contract price or project labor remuneration is returned, due to the delay in payment by the other party, the creditor's price is actually occupied. The legal theory lies in the fact that because of the time of performance of the contract, one party will suffer the corresponding loss of capital possession during the period of possession of the other party's property, and this loss is caused by the validity of the contract, so the court supports the request of one of the parties entitled to request the return of the price or remuneration to request the other party to pay the capital occupation fee.
If the contract is not established, invalid, revoked, or determined to be invalid, and one of the parties entitled to request the return of the price or remuneration requests the other party to pay the capital occupation fee, the people's court shall, within the scope of the party's request, calculate the one-year loan market ** interest rate (LPR) published by the National Interbank Lending Center authorized by the People's Bank of China.
If the party occupying the funds is not at fault for the contract not being established, invalid, revoked or determined to be ineffective, it shall be calculated on the basis of the benchmark interest rate of the same type of deposit announced by the People's Bank of China for the same period.
The issue of contracts is more complex, and there are unilateral and dual contracts. Where both parties bear the obligation to return to each other, and the parties claim simultaneous performance, the people's court shall support it;Where the party in possession of the subject matter has circumstances in which the subject matter is used or may be used in accordance with law, and the other party requests that the capital occupation fees it should pay offset with the fees it should collect for the use of the subject matter, the people's court shall support it, except as otherwise provided by law.
In other words, the capital occupation fee can be offset against the usage fee. For example, Zhang San sold an excavator to Li Si, and the contract was invalid and the 300,000 yuan collected had to be returned. Li Si asked Zhang San to pay 8,000 yuan for the capital occupation fee, and Zhang San asked Li Si to pay 10,000 yuan for the use of the excavator, which can be offset at this time, and Li Si can pay 2,000 yuan to Zhang San.
Brief introduction.