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Chapter 37 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (3)
Regarding this case, some people believe that after entrusting relevant departments to evaluate, the cost of the house in dispute is 214920 yuan, which is obviously higher than the investment of the village committee. Although Wei failed to provide sufficient evidence for the joint construction and investment behavior he claimed, However, it is not determined that there is a joint construction relationship between Wei and the village committee, and it cannot explain the huge difference between the village committee's housing allocation and the housing cost; therefore, it should be determined that the joint construction has been established and Wei's request for payment should be supported.

We believe that the evidence in the case can neither prove that Wei and the village committee had a joint construction agreement or behavior, nor can it prove that Wei did advance investment for the village committee, and his litigation claims should not be supported.because:
First, joint construction is a conscious cooperative investment behavior of the parties involved.To determine that there is a joint construction relationship between Wei and the village committee, there must be evidence to prove that Wei and the village committee have a joint construction agreement and joint construction behavior.Otherwise, even if Wei can prove that he has invested his own funds for the construction of the house, it can only be recognized as an advance or a gift according to the relevant circumstances, and it should not be recognized as a joint construction.

In this case, Wei did not provide evidence to prove that the village committee had a joint construction agreement with him, and his claim was that building a house was his personal act, not a joint investment with the village committee.The village committee argued that: the fact of joint construction does not exist, the building of the house is a separate investment by the village committee, and Wei was appointed by him to organize the construction, which is an act of duty.

Second, the estimated cost and the actual cost are two different concepts.

Subjective and objective factors such as evaluation standards, environment, technology, methods, and evaluator's ability, character, and work attitude may lead to inconsistencies between the evaluation results and the actual construction cost, and the evaluation cost cannot be simply equal to the actual total investment.

Moreover, small input and large output is not only the goal pursued by people, but also an objective reality.The cost evaluation is based on the equivalent cost usually required to construct the same building.Scientific management, reuse of waste materials, cost reduction, and reduction of the usual level of material loss may all result in a house evaluation cost that is higher than the house construction investment.In practice, the objective phenomenon of sponsorship and subsidy makes it possible to "do big things with a small amount of money".

If the evaluation cost of the house is higher than the investment in building the house as an important evidence for the identification of joint construction, then all public officials who have undertaken "big things with small money" during their employment can use this as an excuse to enjoy the scientific and effective investment of their units. income.And that's clearly neither reasonable nor legal.

Third, housing construction appropriations are used as cash input, and sometimes they are only a component of the housing cost, especially when rural areas are depreciating and building new ones.The housing cost includes all construction costs including cash input.There are many factors that may cause the actual cost of a house to be greater than the funds allocated for its construction.

It is understandable and entirely possible that the village committee builds houses within the village, and enjoys water, electricity, human resources, and reuse of waste materials. Take the difference between the two as Wei's investment share.

Fourth, Mr. Wei was assigned by the village committee to organize the construction of houses. According to the current law and the evidence on file, Mr. Wei should be regarded as the client of the village committee to build houses, and the legal consequences of his professional behavior can only be determined by the village committee. Committee undertakes.If the investment in building a house is higher than the market value of the house due to improper management, serious waste, etc., the adverse consequences can only be attributed to the village committee according to law.Based on the same reason, if due to factors such as Wei's excellent job behavior and scientific construction management, the housing cost is higher than the village committee's direct allocation for housing construction, the favorable consequences should also be attributed to the village committee.

If there is evidence to prove that Wei did advance funds in the course of performing his duties, the people's court may support his claim of recovering the advance funds; if Wei cannot provide direct evidence that he has indeed advanced funds, the people's court should not compare the house evaluation cost with the The difference in housing construction appropriation was presumed to be Wei's advance or investment.

tips

To reduce house co-construction disputes, both parties should clearly define the house construction price, land use right transfer price, ownership of property rights, time for handling property right certificates, and responsibilities through contracts.

11. At the stage of house purchase, how to keep the evidence of negotiating the contract?

Zhou took a fancy to a set of commercial housing.In the subscription book signed with the developer.The two parties agreed that "the buyer shall sign a formal pre-sale contract with the developer within 15 days from the date of signing the subscription letter. Refund the deposit." Within 15 days, Zhou went to the sales office to discuss the pre-sale contract as agreed, but failed to sign the contract due to disagreements over the delivery time of the house.After 15 days, when Zhou took the subscription book to the developer to ask for a deposit, the lady at the sales office refused to refund the deposit on the grounds that he had not come to negotiate the contract within the agreed time limit.Zhou was in a hurry because he didn't have enough evidence to prove that he had gone to negotiate the contract.

Analysis according to law
The "subscription book" is called "appointment" in the theory of civil law, that is, before signing the contract, the parties agree to sign the contract in the future, so the "subscription book" is also a contract.

At present, the names of "subscription books" used by developers are various, some are called "subscription books", some are called "agreement books", some are called "house number reservation agreements", and some are called "housing order agreements". etc.

The "subscription letter" should have the following contents: 1. The house purchase contract to be signed in the future; 2. The parties to the "subscription letter" make a commitment to sign a house purchase contract when a certain condition is met in the future; 3. If you do not sign a house purchase contract when you have it, the parties to the "subscription letter" should bear the liability for breach of contract.

The "subscription book" currently used by developers, no matter what the name is, generally has the aforementioned items 2 and 3, but does not have item 1.It is at this point that people who buy a house often suffer.If the house buyer fails to sign a house purchase contract with the developer without reaching a "supplementary agreement" to the house purchase contract, the developer will withhold the buyer's deposit on the grounds that the house buyer has not signed the house purchase contract within the agreed time limit.Therefore, before signing the "subscription letter", you must have reached an agreement with the developer on all the terms of the house purchase contract to be signed in the future (including the "supplementary agreement" you want to sign with the developer) and write it into the "subscription letter" , after both parties sign such a "subscription letter", you will pay the deposit.If you have not yet reached an agreement with the developer on all the terms of the house purchase contract to be signed in the future and paid the deposit after writing it into the "subscription letter", then the possibility of you negotiating a "supplementary agreement" with the developer will be greatly reduced. Unless the amount of deposit you have paid is smaller.

In fact, in this case, the relevant clauses in the subscription letter by Mr. Zhou have been fully agreed upon, but he had a small negligence in that he did not keep the relevant evidence, so that he could not show that he had gone to the developer to discuss the pre-planning within the agreed time limit. Written material of the sales contract.Although this kind of situation is relatively rare in the current property market, there are still a very small number of dishonest salesmen who will use this trick to obtain improper benefits.

tips

For house buyers, at the stage of house subscription, attention should be paid to retain written evidence of the contract negotiation, such as the record of the signing meeting, or the confirmation letter signed by the salesperson for the buyer to negotiate the contract, etc.We believe that house buyers should pay attention to the collection and preservation of evidence during the entire stage of house purchase.If there is a problem, the buyer should claim his rights to the developer in time, and can leave evidence by registered mail or by asking the developer to sign for confirmation.Come so, the person that buy a house won't encounter the situation that suffers a dumb loss because of what one says without evidence.

12. How to determine the validity of the subscription letter in the sale of commercial housing?
In May 2003, Huang learned through a friend's introduction that a real estate development company was developing a residential suite called "Quyuan Fenghe". After learning more about the real estate company and the building it developed, he decided to buy one Set of commercial housing.However, since the real estate company has just started construction and has not yet been fully introduced to the market, Huang and the salesperson signed a subscription letter for commercial housing.It was stipulated in the subscription letter that Mr. Huang purchased a set of commercial housing, and the price was tentatively set at 5 yuan per square meter, but the real estate development company could propose changes according to market conditions when formally signing the commercial housing sales agreement.In May 6500, the real estate development company officially launched the commercial housing of this project developed by itself to the market. Can only sell other commercial houses to Huang, but the commercial houses agreed in the subscription letter will no longer be sold. Huang believes that the real estate development company has breached the contract and should sign a formal sales agreement with himself according to the subscription letter.If the parties fail to reach agreement, a dispute arises.

Analysis according to law
When selling commercial housing in real life, in order to sell the housing as soon as possible, real estate developers or sellers often sign a subscription letter with the buyer before signing a formal commercial housing sales contract.At present, the subscription book is a practical document that exists widely.Commercial housing subscription, ordering, and reservation agreements refer to the documents signed by both parties to the commercial housing sales contract before signing the pre-sale contract or sales contract, which is the initial confirmation and agreement on the relevant matters of the housing transaction between the two parties.The content of the subscription book generally includes the basic situation of the two parties, the basic situation of the commercial house, the payment of the purchase price, and the time agreement for signing a formal commercial house sales contract.In practice, the subscription book is divided into two categories, one of which is the internal subscription book, which refers to the subscription book signed when the real estate project of the developer has not obtained the commercial housing pre-sale license before the sales start; and the external subscription book refers to the After qualifying for pre-sale and current sale, the real estate company signs a subscription agreement with the buyer when selling.

From a general theoretical point of view, the subscription agreement is a kind of pre-order contract for the sale of commercial housing.The subscription agreement is a document signed by the buyer and seller of commercial housing before signing the pre-sale contract or sales contract, and it is a preliminary confirmation of the relevant matters of the housing transaction between the two parties.To put it simply, the seller promises not to sell the house to a third party other than the buyer within a certain period of time, and the buyer promises to negotiate with the seller on the purchase of the house in accordance with the terms of the agreement within this period.The main feature of this subscription behavior is the obligation agreed by the buyer and the seller to negotiate for the conclusion of a contract in the future, rather than the final signing.Therefore, it is generally believed that this is an advance contract for the sale and purchase of commercial housing in nature.

In the classification of contracts, there are reservations and contracts.An appointment refers to a contract between the parties to sign a contract in the future, and the contract to be signed in the future is the contract.The content of the appointment is different from this appointment.The content of the appointment is mainly for signing this agreement in the future. The appointment is independent, it is a contract independent of this agreement, and there is no subordination relationship with this agreement.In the commercial housing sales contract, although the parties have clarified the identities of the parties and the basic situation of the subject matter in the subscription letter, the purpose of signing the subscription letter is not to make the parties bear the creditor's rights and debts directly according to the subscription letter, but to restrain the parties in the contract. contract in the future.The main effect of making an appointment is to enable the parties to perform the obligations of signing the contract in the future, and cannot violate the agreement of the appointment to sell the house to others.The establishment and entry into force of the appointment has nothing to do with this agreement. The two are only involved in the content, but they do not involve the issue of legal effect.If one of the parties violates the agreement of the appointment, it shall also bear the corresponding liability for breach of contract.The main obligation of the party making an appointment is to sign the contract in the future, which is an obligation of the party for a specific action, rather than a confirmation of the direct result.If one party refuses to perform the obligation without just cause, the other party may request the court to enforce it directly.When this agreement is signed, the appointment naturally loses its due effectiveness, because the signing of this agreement is the purpose and effectiveness of the appointment.

A commercial housing subscription letter should be recognized as a formal commercial housing sales contract if certain conditions are met. Article 16 of the "Measures for the Administration of Commercial Housing Sales" stipulates the basic clauses that should be included in the commercial housing sales contract, but this is mainly for the original agreement of the commercial housing sales.However, the requirements of Article 16 are relatively complete. In practice, it is difficult or only at a later stage to sign such a complete contract between the parties. Obstacles sometimes sign a subscription in advance.In the process of negotiation between the two parties and the process of housing construction-related procedures, the factual and legal obstacles are gradually eliminated to convert the appointment into a contract.Therefore, in practice, the subscription letter is the basis and main agreement of the rights and obligations between the parties, so the subscription letter should be recognized as a formal contract under certain conditions. Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Dispute Cases of Commercial Housing Sales Contracts stipulates: The main content, and the seller has accepted the purchase price as agreed, the agreement shall be recognized as a contract for the sale of commercial housing.”

As long as it has the main content of the commercial housing sales contract stipulated in Article No. 16 of the "Commercial Housing Sales Management Measures", it needs to be understood from two aspects. On the one hand, the question of what is the main content must be answered through judicial practice. In addition, it must first be clear, Even if the subscription book is recognized as a formal contract, it obviously does not need to have all the contents of the commercial housing sales contract stipulated in Article No. 16 of the "Commercial Housing Sales Management Measures".In practice, due to factual and legal difficulties, it is impossible for the parties to state all the contents in the subscription letter.For example, in terms of delivery conditions and dates, according to Article 26 of the "Urban Real Estate Management Law", real estate development projects can only be delivered for use after they are completed and passed the acceptance check.When delivering the house, the developer should submit to the buyer a lot of procedures and materials such as the house quality assurance letter and the house user manual, etc., so it is impossible to make a detailed agreement on this clause in the reservation contract, so usually the house is delivered in the reservation contract Time is variable.

The seller has accepted the purchase price as agreed.Here the seller accepts the house purchase price, which can be part of the house purchase price or the whole house purchase price.In practice, the buyer purchases a house and pays for the house generally in the form of one-off payment, installment payment, and personal housing loan.According to this condition, the subscription letter may be recognized as a formal contract only if the buyer has paid the purchase price; , the subscription letter cannot be regarded as a formal contract.So it seems that such a regulation seems too strict.When the seller accepts the buyer's house payment, the actual contract has entered the stage of performance.In addition, if the parties have only signed a subscription letter, and the subscription letter does not contain the main content of the commercial housing sales contract, but the parties have already started actual performance and one of them has accepted it, how should it be determined at this time? Woolen cloth? Article 36 of the "Contract Law" stipulates: "If the law, administrative regulations or the parties agree to conclude a contract in written form, and the parties have not adopted a written form but one party has performed its main obligations and the other party accepts it, the contract is established." Therefore, when the buyer pays When the purchase price has been paid but no formal commercial housing sales contract has been signed, the sales relationship between the parties is still legal and valid.Therefore, some scholars pointed out that Article 5 of the Supreme People's Court's "Interpretation on Several Issues Concerning the Application of Law in the Trial of Dispute Cases of Commodity Housing Sales Contracts" determined that the subscription, ordering, and reservation agreements of commercial housing conform to the provisions of Article No. 16 of the "Measures for the Administration of Commercial Housing Sales" The main content of the commercial housing sales contract, and the seller has accepted the purchase price according to the agreement. The two conditions can be recognized as a formal sales contract. It is too strict and harsh. In fact, these two conditions should be optional rather than coexisting. enough.

conditions for the actual performance of the contract.If the subscription letter is recognized as a formal contract, it must have the conditions for actual performance, that is to say, there are no legal or factual obstacles and difficulties in the realization of the contract.

tips

In practice, issues that should be paid attention to when signing a subscription agreement between the parties:

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