legal master

Chapter 38 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (4)
(1) Prevent the content from being too simple.In practice, some subscription documents only include basic items such as the address, area, and price of the house, but do not clarify important terms such as liability for breach of contract, refund or loss of the deposit, and so on. This will prevent buyers from fully understanding the transaction conditions.Once a house buyer encounters a disagreement in the process of negotiating formal contract terms with the developer, it often puts the house buyer in trouble.For a subscription letter to be effective as a contract, it must first meet the requirements of the contract law, and its content should be clear and definite.The main contents of the subscription book should include: the basic situation of the buyer and the seller, including the names, addresses, telephone numbers, faxes, etc. of both parties; Place of payment, place of contract, etc.; terms of deposit, specifying how effective the deposit will be under different circumstances; payment methods, including one-time payment, installment payment, mortgage payment, etc.; rights and obligations of both buyers and sellers.Generally speaking, the seller's obligations should include: retaining the commercial house agreed by both parties and not selling it to a third party; signing a formal sales contract with the main content as stipulated in the subscription letter; negotiating and signing a sales contract within the agreed time limit; When reaching an agreement on this main term, determine the terms other than the main term in accordance with the provisions of the law or transaction practice or the principle of fairness.The breach of contract clause refers to what liability the buyer and seller should bear if they fail to perform in accordance with the contract.

(2) The agreement should be clear and clear, and at the same time, pay attention to the reciprocity of rights and obligations in the subscription agreement.The basic principle embodied in the contract is voluntariness and equality. From another perspective, all parties should stipulate necessary obligations in the subscription agreement. The obligations of both parties are established around the realization of the purpose of the contract. Not too little.At present, most of the subscription books are standard contracts provided by developers, which have more restrictions on home buyers. In order to avoid one party's responsibility, pay attention to adding clauses that restrict the behavior of developers when signing agreements.

(3) Check whether the developer has the conditions for selling commercial housing, and avoid signing internal subscription documents. The "Urban Real Estate Management Law" stipulates that the pre-sale of commercial housing is subject to a pre-sale permit system. If the developer does not meet the statutory conditions for the pre-sale of commercial housing and has not obtained the "Pre-sale Permit", the "Subscription Agreement" signed with the buyer is an internal Subscription, but at present such a subscription is generally considered invalid and has no legal effect.

13. What evidence should be collected and preserved when buying a house?

Yu bought a commercial house half a year ago, and when he moved in, he found that the community was not as described in the sales brochure and the sales lady when he bought it. Various supporting facilities were not fulfilled, and the property management of the community was also very bad.After several invalid negotiations, Yu decided to check out.Under the coercion of the developer, Yu signed an extremely unfair check-out agreement with them and was confiscated of all house purchase contracts, agreements and other certificates.However, when Yu decided to sue the court, he was unable to produce valid evidence such as the original house purchase contract and could not prove that the developer had breached the contract first.

Analysis according to law
With the increasing self-protection awareness of home buyers, more and more home buyers no longer swallow their anger when developers default and cannot provide promised commercial housing or living conditions, and actively take up legal weapons to seek "fairness" from developers.But when they sued to the court, they found that the evidence in their hands was often not recognized by the court, and the reason became unreasonable instead, and the lawsuit could not be won.The principle of proof adopted in my country's "Civil Procedure Law" is "whoever advocates shall provide evidence". When a dispute arises between a house buyer and a developer and goes to the court, the court requires the house buyer to provide evidence for the facts of the dispute. It is difficult to protect one's own rights.

[-]. Attention should be paid to the evidence collected in house purchase disputes

(1) Purchase contract.The buyer should sign the "House Purchase Contract" with the developer, and go through the pre-sale (sales) registration at the housing management department where the house is located after signing the "House Purchase Contract";

(2) Supplementary agreements include: a. Supplementary agreement on house purchase, signed by the purchaser and the developer at the same time as signing the "House Purchase Contract", as a supplementary provision for matters not covered in the "House Purchase Contract"; b. Other supplementary agreements, such as both parties Agreements reached due to new situations during the performance of the contract, such as “Letter of Understanding” and “Memorandum” reached on issues such as changing the delivery date, project progress, property charges, payment progress, architectural design, and decoration standards;

(3) Other related contracts: such as parking space lease purchase contract, storage room lease contract, house warranty contract, property contract, etc.;

(4) All kinds of invoices and receipts, including invoices and receipts for the price of the house delivered, related property charges, heating fees, deed tax collected and paid by the developer, transaction fees, stamp duty and other taxes and fees;

(5) Other documents: such as letters, faxes, notices, etc. between the two parties during the performance of the "House Purchase Contract", as well as the list of property charges provided when signing the contract, commitments to some special requirements of the house buyer, preferential treatment, etc.

(6) Real estate certificate and other ownership certification documents, etc.

[-]. Commitment and signature are only valid
It should be noted that any matters related to the purchased house promised by the developer should be in written form as much as possible. No matter how tempting the salesperson makes in advance, do not trust verbal promises. All commitments must be written as evidence and signed or stamped by the developer to serve as valid evidence for disputes.Otherwise, once a dispute occurs, it will be difficult for the court to protect the rights and interests of buyers based on the above-mentioned documents.

tips

Note that the original is the most reliable evidence. Article 68 of the "Civil Procedure Law" stipulates that "documentary evidence shall be submitted in the original. Physical evidence shall be submitted in the original. If it is really difficult to submit the original or the original, reproductions, photos, duplicates, and excerpts may be submitted." At the same time, the Supreme People's Court " Article 78 of the Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People’s Republic of China stipulates: “If the evidentiary material is a copy, the provider refuses to provide the original or clues to the original, there is no other material to corroborate it, and the other party refuses to admit it. , shall not be used as the basis for determining the facts in the lawsuit.” In other words, if the buyer cannot provide the original evidence of the developer’s breach of contract, it will be difficult for his claim to be protected by the court.Therefore, house buyers should pay attention to retaining the original evidence in case of disputes, so as to better protect their legitimate rights and interests.

14. In the lawsuit, is it still necessary to provide evidence for the fact of the house sale stated in the existing judgment?
In an effective civil judgment in 2001, there is such a statement: "After the trial, it was found that on September 1998, 9, Pingxing Company and He Mou reached an agreement, and Pingxing Company sold 1 raincoats The value of 1507 yuan was sold to He to compensate the company for the expenses owed to He." ... "The above facts are confirmed by evidence such as the agreement between He and Pingxing Company." Agreement" reads as follows:

4. After verification by both parties, as of the end of August 1998, Party B has received funds from Party A as follows:

收到时间收到金额收入说明98年4月130500公司一套商品房变卖98年8月300000车变卖98年8月10000房租收入合计：440500；

5. If the above items 3 and 4 are offset, Party A still owes Party B RMB 198781.63;
6.现还欠乙方的198781.63元，甲方将1507件风雨衣总价值226050元卖给乙方，乙方在变现后剩余27268.37元尽力处理好职工的善后事宜（如有特殊支出例外）

Then, in April 98, the fact that a set of commercial houses of Pingxing Company was sold to He (and approved by the superior department of Pingxing Company and reviewed by the real estate management department), can it be said that it is confirmed by legal documents that have taken effect? In the 4 lawsuit, can He not need to prove this fact?

Analysis according to law
The parties do not need to provide additional evidence to prove the facts confirmed by the effective judgment.

Article 9 of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures" stipulates that "the following facts do not need to be proved by the parties: ... ([-]) Facts that have been confirmed by the people's court's legally effective adjudication;" ... "The preceding paragraph Items ([-]), ([-]), ([-]), ([-]), and ([-]), except where the parties have evidence to the contrary that is sufficient to overturn it.”

In civil litigation, the facts that have been confirmed by the effective judgment of the people's court belong to the fact that the parties are exempt from proof, and its theoretical basis and basis come from the theory of res judicata in civil litigation.Res judicata actually refers to the binding force of the effective judgment.In civil litigation, after the court's judgment is confirmed, no matter whether it is correct or not, it will have two effects: first, both parties involved in the litigation will be bound by the judgment and shall not dispute the content of the judgment; Second, the court itself must also accept the constraints of the ruling, neither arbitrarily changing or revoking the ruling, nor making another judgment that is completely contrary to the ruling.The value of the theory of res judicata is that a certain degree of stability can be achieved after a purely private dispute is confirmed through the state power of litigation. It is this stability that makes social development and transaction security more planned and stable.Therefore, the facts confirmed by the effective judgment of the people's court should be included in the scope of exempt facts in civil litigation.

tips

In this regard, it should be noted that if the parties have evidence to the contrary that is sufficient to overturn the facts confirmed by the effective adjudication, the other party still needs to bear the burden of proof for the facts confirmed by the adjudication.The fact claimed by the party has been confirmed by the effective judgment of the people's court, and the burden of proof for the fact can be exempted, but this cannot be a reason to exclude the other party from rebuttal.If the opposing party has evidence to the contrary sufficient to overturn the facts confirmed by the court, the party cannot be exempted from the burden of proof.

15. When buying real estate, can the certificate be used as a fee voucher?
When Jin bought a house with a down payment, the real estate agent said that there was no invoice, so he issued a receipt to Jin first, and said that he would exchange it later.So, can the receipt be used as a proof of payment?What if there is a housing dispute?
Analysis according to law
In the contract law, a receipt with an official seal and complete content can be used as a fee voucher, and an economic dispute can be used as a voucher.However, in terms of tax law, an invoice uniformly produced by the national taxation authority must be issued, and the invoice is a legal instrument in accounting settlement.When Jin pays the last payment, the other party must issue an official invoice, otherwise Jin can report to the tax authority.

According to Article 48 of the "Regulations for the Implementation of the Invoice Management Measures", the following acts are behaviors that fail to issue invoices: ([-]) failing to issue invoices when they should be issued; ([-]) issuing other documents or white slips instead of invoices.

Article 33 stipulates that units and individuals who issue invoices must issue invoices when operating business and confirming business income.Invoices shall not be issued without operating business.

Article 34 stipulates that after the invoice is issued, if a red letter invoice is required for the return of sales, the original invoice must be withdrawn and the word "voided" must be marked or a valid certificate from the other party must be obtained; if a sales discount occurs, the original invoice must be withdrawn and marked After the words "voided", re-issue the sales invoice.

tips

Note that the sum of the house purchase invoices should be equal to the total house price, that is, down payment invoice + loan invoice = full invoice.To apply for a real estate certificate, relevant valid certificates must be presented.If the purchase invoice is lost, you can find the unit that issued the invoice, where there will usually be a stub.After finding the stub, invalidate the original invoice and issue a new invoice.

16. Can mobile phone text messages be used as evidence in real estate cases?

He and Song negotiated to buy house A together (the two parties each contributed 50%). Because Song was on a temporary business trip, he sent a text message to He, clearly expressing his willingness to buy house A together, and proposed that He pay his own part first. The house payment will be repaid after returning from the field.Later, due to the rise in housing prices, He refused to admit that the house was jointly purchased by He and Song, believing that it was his personal property right, and refused to accept Song's house payment.Song sued the court, claiming that he owns the ownership of House A.

Analysis according to law
In this case, whether the text message sent by Song to He can be used as evidence for his claim of ownership of House A and its probative force are the focus of controversy.According to Article 11 of the Contract Law: “Written form refers to contracts, letters and data messages (including telegrams, telexes, faxes, electronic data interchange and e-mails) and other forms that can tangibly express the contents contained. "It can be seen that there is a legislative basis for mobile phone text messages as evidence, and the content of text messages between He and Song has constituted an essential requirement for the establishment of a contract and has the effect of a contract.

According to the provisions of our country's law, all factual materials that can prove the circumstances of the case are evidence.So, SMS is no exception.However, as a product of the new era, mobile phone text messages are indeed a brand new topic in the legal field when entering into litigation procedures.

Based on the characteristics of easy modification and editing of mobile phone text messages, their authenticity and reliability as evidence is an important basis for their probative force, and it is also the main aspect of their review.Generally speaking, when evidence is accepted, the following aspects are mainly examined: whether the source of evidence exists objectively; whether the sending time, sender, and network service provider of the short message may be forged or modified.Specifically, the situations that may arise in review practice mainly include: no objection to the content, but objection to the sender; no objection to the sender, but objection to the content.

([-]) No objection to the content, but objection to the recipient.

In this case, generally speaking, it is meaningless to examine the content of the text message, because the party concerned has already denied that he is the sender and sender of the text message, and in essence, it can be said that he has denied its content, unless there are other circumstances.It may happen in practice: the owner of the mobile phone lends the mobile phone to others or sends text messages to others after it is stolen, and the other party does not recognize that the mobile phone number belongs to him, etc.The former may contest this on the basis of other evidence, or may presume it on the basis of certain known facts.The latter is currently not all mobile phone numbers are subject to the real-name system, and it is impossible to identify the identity of some numbers, which makes it difficult to identify evidence of text messages.During the review, although it can also be presumed based on the support of other evidence and the presumption rules, it may encounter great difficulties in verification in actual operation.Therefore, unless a complete real-name system is implemented for mobile phone numbers in the future, it will bring great judicial convenience to the determination of the source of evidence.

([-]) Text messages that have no objection to the sender but objection to the content.

After confirming the recipient and sender, its content should be reviewed. The reason for this is that text messages are not as easy to identify as other evidence.If the content of general documentary evidence is changed, it can basically be identified. Even if it is difficult for ordinary people to identify, the results of professional appraisal can basically be guaranteed.Not so for SMS.

According to the types of mobile phones on the market, some mobile phones have the functions of re-editing, modifying mobile phone text messages and leaving no "clues".What's more serious is that because the signal of the mobile phone short message and the function of receiving information are all in the SIM card of the mobile phone, that is to say, the SIM card sends and receives information, and the mobile phone only plays the role of a medium and a carrier.The recipient can completely modify the received text message in an editable mobile phone without any trace after modification, and then put the SIM card into a mobile phone that does not have this function, as a possible modification for the text message sexual defense.This makes it difficult to identify the authenticity of its text messages.

In addition, SMS service providers or operators only record the sending and receiving time of each SMS and the mobile phone number of the sender and sender, but generally do not record its content (although they have the ability to record the content of SMS), so this may cause evidence against it. The fact that authenticity may not be ascertained at all.When reviewing its content, some scholars believe that it is very unrealistic or even impossible for the judge to insist that the plaintiff must prove that the mobile phone text message has not been altered in any way. Second best."Judging from the experience of foreign countries, the usual practice is not to adopt the direct authentication method - appraisal to solve the problem, but to resort to indirect authentication methods - presumption, self-admission, etc. to deal with it.

Therefore, we believe that presumption, as the first criterion for the adoption of electronic evidence, can be used based on the internal relationship and connection between the facts of the case, as well as reasonable general logical relationships when reviewing the credibility and reliability of text message evidence.Therefore, in this case, it can be presumed that the house was jointly purchased by Song and He.

tips

Mobile phone text messages have their inherent perishability: first, text messages are easily deleted by mistake due to improper operation by the owner.Second, it may be maliciously deleted by interested parties, resulting in the destruction of evidence.Third, the storage capacity of the mobile phone is too small, and it may be automatically deleted due to receiving too many short messages.Fourth, the loss of the mobile phone and damage to the SIM card and other reasons that can cause it to be lost.

Therefore, the preservation of mobile phone short messages has its special necessity.Article 74 of the Civil Procedure Law stipulates that the court may adopt evidence preservation measures based on the application of the parties or on its own initiative. The parties may also apply to the notary office to preserve the evidence in the lawsuit outside the lawsuit.For the preservation of mobile phone text messages, it can be converted into written form.According to Article 24 of the Supreme People's Court's "Several Provisions Concerning Evidence in Civil Procedures", the content of the short message can be fixed by means of inspection and recording.

17. Compared with the land certificate and the land register, which one is more powerful?

(End of this chapter)