Foreword
Yesterday, I saw a case: "After review, this court believes that the focus of the dispute in this case is the calculation of the annual interest rate of the financial loan contract involved in the case. Paragraph 2 of Article 2 of the Several Opinions of the Supreme People's Court on Further Strengthening Financial Adjudication stipulates that if the borrower of a financial loan contract requests a reduction of the total interest rate of 24% on the grounds that the interest, compound interest, penalty interest, liquidated damages and other expenses claimed by the lender at the same time are too high and significantly deviate from the actual loss, it shall be supported. In this case, Fortune Wings Corporation and Standard Chartered Bank Beijing Branch signed the Standard Chartered Bank SME Unsecured Small Loan Contract, which was legal and valid, and Fortune Wings Corporation should fully fulfill its repayment obligations. In its judgment, the court of first instance had determined that the penalty interest should be paid at an annual interest rate of 24% based on the outstanding principal, which did not violate the above provisions, and this court did not accept the appeal opinion of Jinpeng Company. ”【1】
So whether the penalty interest can be calculated with reference to the annual interest rate of 24% for the overdue delivery of the resettlement house, the first thing to determine is whether the value of the resettlement house can be calculated and measured with money, secondly, whether the overdue resettlement house is equivalent to the overdue loan, and finally whether the overdue resettlement house belongs to the scope of contract law.
Calculation of the value of resettlement housing
In the process of commodity trading, the first thing we need to understand is the unit price, quantity and quality of the commodity, and to determine the amount of the commodity to be paid, and the resettlement housing also needs to meet such conditions to meet the necessary conditions for the transaction, and there are clear provisions in the "Compensation and Regulations on the Expropriation of Houses on State-owned Land", as follows:
Article 12 Before the people at the municipal and county levels make a decision on housing expropriation, they shall conduct a social stability risk assessment in accordance with the relevant provisions; If the decision on housing expropriation involves a large number of expropriated persons, it shall be discussed and decided by the executive meeting. Before making a decision on housing expropriation, the expropriation compensation fee shall be in full place, stored in a special account, and earmarked for special use.
Article 17 The compensation given to the expropriated person by the people at the city and county level who make the decision to expropriate the house includes: (1) compensation for the value of the expropriated house; (2) Compensation for relocation and temporary resettlement caused by the expropriation of housing; (3) Compensation for losses caused by the suspension of production and business caused by the expropriation of houses. The people at the municipal and county levels shall formulate subsidies and incentives to give subsidies and rewards to the expropriated persons.
Article 19 The compensation for the value of the expropriated house shall not be lower than the market for similar real estate of the expropriated house on the date of the announcement of the decision to expropriate the house. The value of the expropriated house shall be assessed and determined by the real estate appraisal agency with corresponding qualifications in accordance with the housing expropriation appraisal method. If there is any objection to the value of the expropriated house determined by the assessment, it can apply to the real estate appraisal agency for a review of the assessment. If there is any objection to the review result, you can apply to the real estate appraisal expert committee for appraisal. Housing expropriation assessment measures by the competent department of housing and urban-rural construction, in the process of formulation, should be open to the public to solicit opinions.
Article 21 The expropriated person may choose monetary compensation or exchange of property rights. If the expropriated person chooses to exchange the property rights of the house, the people at the city and county levels shall provide the house for the exchange of property rights, and calculate and settle the difference between the value of the expropriated house and the value of the house used for the exchange of property rights with the expropriated person. If the expropriated person chooses to exchange the property rights of the house in the renovated area due to the expropriation of individual residences due to the reconstruction of the old urban area, the people at the city and county level who make the decision to expropriate the housing shall provide the houses in the renovated lot or the nearest lot.
Article 25 In accordance with the provisions of these Regulations, the housing expropriation department and the expropriated person shall conclude a compensation agreement on such matters as the method of compensation, the amount of compensation and the period of payment, the location and area of the house to be used for the exchange of property rights, the relocation fee, the temporary resettlement fee or the turnover house, the loss of production and business suspension, the time limit for relocation, the method of transition, and the transition period. If one party fails to perform its obligations under the compensation agreement after the conclusion of the compensation agreement, the other party may file a lawsuit in accordance with law. 【2】
From the above provisions, it can be clearly seen that the value of resettlement housing needs to be determined from the date of collection, and it needs to be used in full and earmarked. Taking Shanxi as an example, the Shanxi Provincial Regulations on the Expropriation and Compensation of Houses on State-owned Land also make the following provisions:
Article 13 When the people of districted cities and counties (cities and districts) make a decision on housing expropriation, the funds used for expropriation compensation shall be arranged in the budget at the same level, and the full amount shall be in place and the funds shall be earmarked. Where the expropriated person is compensated by way of exchanging property rights, the value of the house where the property rights are exchanged shall be included in the total amount of compensation for expropriation. Audit institutions should strengthen the supervision of the management and use of expropriation compensation funds.
Article 18 Housing expropriation shall be compensated first and then relocated. The expropriated person can choose monetary compensation or exchange of property rights. The housing expropriation department shall enter into a compensation agreement with the expropriated person. Where monetary compensation is implemented, the amount of compensation for the value of the house, compensation for losses caused by suspension of production and business, relocation subsidy, payment period, relocation period, liability for breach of contract, and methods for resolving disputes shall be clarified. Where property rights are exchanged, the location, type, area, and order of housing selection used for property rights exchange shall be clarified, the method of settling the price difference between the expropriated house and the house for which property rights are exchanged, the temporary resettlement subsidy, the relocation subsidy, the relocation period, the relocation transition method, the transition period, the compensation for the loss of production and business suspension, the liability for breach of contract, and the method for resolving disputes.
Article 21 Where the expropriated person chooses to exchange property rights for off-plan housing for resettlement, the transitional period for low-rise and multi-storey houses shall not exceed 24 months, and the transitional period for medium-high-rise and high-rise houses shall not exceed 36 months. The transition period shall be calculated from the date on which the expropriated person enters into the compensation agreement and delivers the house. 【3】
To sum up: the transitional period for resettlement housing actually clarifies that the deadline for delivery is 24-36 months, and if it is exceeded, it is overdue.
Basis for late delivery
The value of the resettlement house should first be determined after the overdue delivery, and it is not difficult to see in the calculation of the value of the resettlement house that the value of the expropriated property is clarified from the date of expropriation and converted into currency for the value calculation of the resettlement house, so the resettlement house has the attribute of currency.
There is no agreement on the compensation standard for late delivery, or the monetary funds of the resettlement housing actually occupied are replaced by a transition fee, so as to evade due liability and earn interest profits in the equivalent currency of the resettlement housing. In real life, the real estate is also used as a commodity, and the buyer really needs to pay the interest on the loan after taking a loan from the bank, and if it is overdue, it will bear penalty interest, so when the expropriator occupies the equivalent currency of the real estate of the expropriated person, should the expropriator pay a penalty interest of 24% according to the bank loan interest rate.
Reparation is not an end, only to correct mistakes
Not only do there be such questions, if there is an administration according to law, will there still be the problem of overdue, if the law enforcement is standardized, will there still be a court because of the overdue delivery, and if there is a mistake, will there be so many administrative lawsuits? Unfortunately, what I have seen is that some people flaunt their achievements based on the winning and losing rate of administrative lawsuits, and some turn a blind eye to the problems, so compensation is not the goal, but only to correct the existing mistakes through punishment.
In my opinion, what we need is not only an attitude of administering according to law, but also reverence and respect for the law. Administering according to law, standardizing law enforcement, and correcting mistakes are all goals we pursue, but these goals cannot just stay in words, but also need to be implemented in action.
First of all, we need to be clear that administration according to law is not a panacea. Even in countries with well-developed legal systems and strict law enforcement, it is difficult to avoid errors in administrative acts. However, that doesn't mean we can ignore mistakes. On the contrary, we should actively correct our mistakes and correct problems in a timely manner. Only in this way can we truly correct mistakes and uphold the dignity and fairness of the law.
Second, we need to emphasize that administrative litigation is not the best way to solve problems. Although administrative litigation is a legal remedy, it is costly, time-consuming, and prone to adversarial sentiments. Therefore, we should seek more ways to solve problems through consultation and mediation, so as to save judicial resources and at the same time help resolve social contradictions.
Finally, we need to stress that the administrative organs should actively perform their duties and improve administrative efficiency with the purpose of serving the people. Only in this way can we truly serve the people and satisfy the people. At the same time, we also need to strengthen supervision and restraint to prevent the abuse of power and the occurrence of corruption.
In short, administering according to law, standardizing law enforcement, and correcting mistakes are the goals we pursue, but these goals need to be implemented in action. Only in this way can we truly serve the people and satisfy the people.
References: [1].Beijing Financial Court No. 2023 Jing 74 Min Zhong No. 1933
[2] Compensation and Regulations for the Expropriation of Houses on State-owned Land
[3] Shanxi Provincial Regulations on the Expropriation and Compensation of Houses on State-owned Land
List of high-quality authors