legal master

Chapter 40 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (6)
21. How to prove the oral agreement of buying and selling houses?
In May 2004, Ning planned to sell one of his houses. After being contacted by an intermediary company, Guan expressed his desire to buy the house.The two parties signed a letter of intent to purchase a house, and Guan paid a deposit of 5 yuan at the same time. The two parties verbally agreed to go to an intermediary company to sign a formal house transfer contract the next day.The next day, Guan did not sign the contract for a long time. One month later, he called the intermediary company to contact the salesman of the business, saying that he would not buy the house and the deposit would not be required.Under such circumstances, Ning sold the house separately in July. In December, Guan sued Ning for breach of contract to the court, demanding that he return the deposit of 1 yuan and compensate 7 yuan.Ning immediately asked the employee of the intermediary company to testify in court, but because he could not provide other evidence except the testimony of one witness to prove that it was Guan who voluntarily gave up buying the house, the court ruled that he lost the case.

Analysis according to law
The form of the contract, also known as the form of the contract, is the form of expression of the agreement of the parties, the external manifestation of the content of the contract, and the carrier of the content of the contract.From the perspective of the historical development of contract law, the form of the contract clearly shows the law of change from emphasizing form to emphasizing meaning.This is the result of adapting to the ever-growing social economy that requires more and more convenient transactions under the premise of transaction security.Of course, emphasizing meaning does not mean completely denying form.It is difficult for the law to evaluate the pure inner meaning. Only when the meaning is expressed in a certain form and can be grasped and recognized by people, can the law accurately evaluate it.So in any society, the form of contract is indispensable.

The oral form refers to the different forms in which the parties only use language to express their intention to conclude a contract without expressing the content of the agreement in words.The oral form is simple and easy to use, and is often used in daily life.Spot transactions in bazaars and retail sales in stores are generally in the form of word of mouth.The contract is in oral form, and the parties do not need to specify it.Where there is no agreement between the parties and the law does not require a specific form of contract, the oral form can be used.However, when a dispute arises, the parties must provide evidence to prove the existence of the contract and the content of the contractual relationship.The oral form of the contract does not mean that no written evidence can be produced.When people go to the store to shop, they sometimes ask the store to issue an invoice or other shopping vouchers, but such written materials can only be regarded as proof of the establishment of the contract, not as an element of the establishment of the contract.

In this case, Ning lost the lawsuit because he lacked relevant evidence to prove that Guan gave up buying the house on his own initiative.On the contrary, the fact that he sold the house separately became the strong evidence used by Guan to prove the breach of contract.In addition, he did not make a written agreement on the time for signing the house purchase contract, but only made an oral agreement, which was also the reason why he lost the lawsuit.For this reason, the author suggests that when a house buyer encounters a similar situation, the seller can ask the buyer to issue a written statement on the abandonment of the house purchase; it can also entrust a lawyer to send a lawyer's letter, asking the buyer to sign a house purchase contract within a reasonable time, otherwise it will be deemed as a voluntary waiver Buying a house; you can also send a letter yourself, but it is best to have the letter you send be notarized.In this way, there is enough evidence to prove that the buyer is the one who breached the contract, and there is no need to bear unnecessary losses.

tips

The disadvantage of an oral contract is that it is difficult to obtain evidence in the event of a contract dispute, and it is not easy to distinguish responsibilities.Therefore, this form should not be adopted for contracts that cannot be settled immediately and for contracts with a large amount of subject matter, especially those involving real estate.

22. How can I prove that I have been fraudulent when buying and selling houses through an intermediary?

At the beginning of 2004, Huang planned to buy a property in a certain place.To this end, he found a real estate intermediary consulting agency for help.On February 2 of the same year, Huang and a real estate intermediary consulting organization signed a "commission confirmation (buy and sell)", agreeing that Huang agreed to buy a unit in A commercial building through the real estate consultant, and signed on March 14 of the same year 3 yuan will be paid to the real estate consultant as a commission on the day of the formal sale and purchase contract.On June 15 of the same year, Huang and the developer formally signed a commercial housing sales contract, and then went through the registration procedures for the property rights transaction and made a notarization.The sale was completed, but Huang did not pay the commission to the real estate consultant as promised, so a real estate agency had to sue Huang to the court.

Huang argued that the agent of the real estate consulting company did not show his "real estate agent qualification certificate" when he served him, and also colluded with the developer to sell illegal houses to profit from it, and damaged his legitimate rights and interests by means of fraud, misleading and intimidation .That's why he refused to pay the commission.

Analysis according to law
The "Commission Confirmation Letter" signed by Huang and a real estate intermediary consulting agency is legal and valid, and belongs to the intermediary contract in the civil contract.An intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides intermediary services for the conclusion of the contract, and the client pays remuneration.Both parties should earnestly implement it.According to the "Confirmation Letter", since a real estate intermediary consulting agency has facilitated Huang to buy a property, after Huang signed a sales contract with the developer, he failed to pay the commission as agreed. The real estate company's request for Huang to pay the commission is obviously legal and reasonable.

Huang claimed that the real estate company was "fraudulent, misleading and intimidating", but did not provide evidence to support it.The so-called civil fraud means that one party deliberately informs the other party of false information, or deliberately conceals the real situation, so as to induce the other party to make a wrong expression of intention.Therefore, Huang must produce evidence to prove that a real estate intermediary consulting agency induced him to sign a contract while concealing the truth from him.

tips

For something as subjective as "fraud", it is more difficult to prove it.Evidence can only be obtained by secretly recording some materials that are beneficial to oneself without harming the legitimate rights and interests of the other party during the dispute process, or by collecting similar fraudulent acts committed by the other party against other people.

23. Can the official documents of the Housing Management Bureau be used as evidence for the court to decide the case?
The owner of a community found that the common area of ​​the community was wrong after taking over the house, so he contacted the developer. The developer admitted that he had made a mistake in calculating the common area and agreed to adjust the common area.Subsequently, the developer unilaterally entrusted a surveying and mapping agency to survey and map the shared area, and made corresponding adjustments to the shared area based on the surveying and mapping results. However, the owner believed that the adjusted shared area was still wrong. If the situation fails, the owner will take the developer to court.In court, the developer produced a statement issued by the functional department of the local Land Resources and Housing Administration Bureau to prove his claim, but the owner believed that although the statement was an official document issued by the administrative agency, it did not reflect the actual situation, and the court could not should be accepted.So, can this official document of the Housing Management Bureau be used as evidence for the court to decide the case?

Analysis according to law
The explanations issued by the functional departments of the Land, Resources and Housing Administration cannot be taken as a basis for finalizing the case.

First of all, the evidentiary effect of administrative documents in civil litigation is not pre-determined.Judging from the existing normative documents, the attitude of the Supreme People's Court on such issues is clear.According to the Supreme People's Court and the Ministry of Public Security's "Notice on Relevant Issues Concerning the Handling of Road Traffic Accident Cases", when a party refuses to accept the administrative penalty and initiates an administrative lawsuit or a civil lawsuit on damages, and when the people's court hears a criminal case of traffic accident If, after review, the people's court finds that the responsibility determination and disability assessment made by the public security organs are indeed inappropriate, it shall not be accepted, and the facts of the case determined by the people's court shall be used as the basis for deciding the case.This shows that administrative documents do not have pre-determined probative effect in litigation cases.

Secondly, it is necessary to distinguish between preponderant probative force and pre-determined probative force.According to Article 77 of the Supreme People's Court's "Several Provisions Concerning Evidence in Civil Procedures", "The people's court may determine the probative force of several pieces of evidence for the same fact in accordance with the following principles: The probative force of official document evidence is generally greater than other documentary evidence... ".This shows that, for administrative documents, the court should give relative probative force to official documents of administrative agencies based on consideration of the relative neutrality or impartiality of administrative agencies when proving the same fact.

However, from the perspective of legislation and practical operation, there is a difference between preponderant probative force and pre-determined probative force.Pre-determined probative effect is to presume that the evidence is true. If the party fails to provide sufficient evidence to the contrary, the content of the evidence shall be deemed as the facts of the case.The preponderance of probative force is to give some evidence a comparative advantage when there are several pieces of evidence when proving the same fact, and the content of each evidence is different or conflicting, and the authenticity of the evidence itself cannot be judged. When there is a discrepancy in evidence, the type of evidence that is more likely to be true and has preponderance is accepted.If administrative official documents are endowed with pre-determined probative force, it is bound to be suspected of administrative interference in the judiciary.

To sum up, for administrative documents, if they are used as evidence in civil proceedings, they should still be reviewed in accordance with the provisions of Article 65 of the "Several Provisions on Evidence in Civil Procedures". be excluded.

tips

According to the relevant provisions of the "Rules for the Calculation of the Sales Area of ​​Commodity Houses and the Allocation of Public Building Areas" and the "Notice on Issues Concerning the Calculation of the Building Area and the Registration of House Ownership", we will calculate the parts that should be included in the public building area and should not be included. The part included in the public building area is listed for the reference of the majority of buyers when buying a house or handing over a house or even when applying for a real estate certificate.

It should be calculated as the public building area as follows:
1. Elevator shafts, stairwells, garbage lanes, substation rooms, equipment rooms, public halls and corridors, basements, on-duty guard rooms, and other public and management rooms that serve the entire building.

2. Half of the horizontal projected area of ​​the partition wall between the suite (unit) and the public building space and the outer wall (including the gable wall).

3. Exterior wall.For exterior walls on the same floor, where there are both main walls and glass curtain walls, the building area shall be calculated based on the main wall, and the wall thickness shall be calculated according to the thickness of the main wall.When the thickness of the walls of each floor is different, the layering shall be calculated separately.For metal curtain walls and other material curtain walls, refer to the relevant regulations on glass curtain walls.

4. Inclined structure roof.If the roof of the house is a sloping structure (sloping roof), the building area shall be calculated for the parts with a floor height (height) of 2.20 meters or more.

5. Irregular enclosures.If the horizontal projection of the periphery of balconies, cantilevered corridors, and overhead corridors exceeds the outer edge of the bottom plate, the building area shall be calculated based on the horizontal projection of the bottom plate.

6. Deformation seam.The construction area shall be calculated for the expansion joints and settlement joints that are connected to any side of the room, meet the general conditions of the house, and can be used normally.

7. Non-vertical walls.For buildings with non-vertical walls such as sloping and arc-shaped buildings, the building area is calculated for the parts with a story height (height) of 2.20 meters or more.If the wall of the building is inclined outwards and exceeds the outer edge of the base plate, the building area shall be calculated based on the projection of the base plate.

The areas that should not be counted as common building area are as follows:

1. Basements, carports, etc. that have been sold or leased as independent space should not be included in the public building area.

2. The basement as a civil air defense project is not included in the public building area.

3. The space under the stairs.If the building area of ​​the staircase has been calculated, the building area will not be calculated no matter whether the space below it is used or not.

4. Public access.Buildings facing the street and the ground floor under the porches are used as public roads and alleys, regardless of whether they have columns or maintenance structures, the building area is not calculated.

5. Buildings similar to balconies, porches and cornices that are not connected to the interior, do not count the building area.

24. How to determine the evidentiary effect of collective land use right certificate?

Chen Da and Chen Er are neighbors from east to west, and there is an aisle in the middle. There used to be a dilapidated thatched shed on the east side of Chen Da's north house. In June 2002, Chen Er built a new house and wanted to expand his homestead to Chen Dachu, but Chen Dachu refused. The two parties failed to reach an agreement through mediation by the village committee many times. A house was built on his homestead, so three large tanks were placed on the empty homestead. On November 6, 2002, Chen Er sued Chen Da to the court on the grounds that Chen Da placed three large vats on his homestead and affected the construction of the house, demanding that Chen Da stop the infringement, remove the large vats, and at the same time provide the court with According to the "Collective Land Use Certificate of the People's Republic of China" which was issued in 11 and has become invalid, the court held that Chen Er's construction of a house on the homestead with legal approval should be protected by law, so it ruled: Chen Er built a house on his government-approved homestead, and Chen Da could not stop him.

Analysis according to law
Collective land refers to land owned by rural collectives.According to Article 8 of the "Land Administration Law of the People's Republic of China", "The land in rural areas and urban suburbs, except for the land that is owned by the state as prescribed by law, is collectively owned by farmers; homesteads, private land, and private hills are collectively owned by farmers. "Article 63 stipulates that "the right to use land collectively owned by farmers shall not be transferred, transferred or leased for non-agricultural construction; Except where the land use right is transferred in accordance with the law."

The "People's Republic of China Collective Land Use Certificate" issued in 1991 provided by Chen Er to the court has lost its legal effect.As for the land where Chen Da had a dispute with his new house, because neither of them had applied for the new version of the "People's Republic of China Collective Land Use Certificate", the right to use the land should belong to the collective.There is no legal basis for Chen Er to request Chen Da to stop the infringement based on the invalid land use certificate, so the court's judgment in this case seems to be inappropriate.

The general procedures for applying for a Collective Land Use Certificate are as follows:
1. Provide the land use approval and report to receive the "Collective Land Use Certificate Application Form";
2. After the completion, report to the National Land Office for review and measurement, fill in the form, and affix the official seal;

3. After being reviewed by the Land and Resources Office, it will be submitted to the Cadastral Division of the Municipal Land and Resources Bureau for approval and issuance of a certificate.

tips

How do villagers apply for the use of collective land to build houses?
my country's "Land Management Law" and other relevant regulations stipulate that rural residents who meet one of the following conditions can apply for the use of homesteads: first, the living is crowded, and the area of ​​the homestead is less than the prescribed limit; Those who have no homesteads after separation; the third is the farmers who need to arrange homesteads for planning new villages and towns; the fourth is the employees, retired cadres, and retired soldiers who have been approved to return to their hometowns, as well as overseas Chinese, relatives of overseas Chinese, and compatriots from Hong Kong, Macao and Taiwan who have returned to their hometowns to settle down. and other non-agricultural accounts.Those who meet the above conditions shall apply for land use in accordance with the following procedures: 1. House builders submit a house building application to the local village agricultural collective economic organization or villagers' committee. 2. After being discussed and approved by the villagers' representative meeting or the villagers' assembly, go through the approval procedures according to the regulations. 3. The township and township land management offices shall designate points and draw lines according to the village and town planning, and allow construction. 4. After the house is completed, if it is checked and accepted by the relevant department and meets the land use requirements, a collective land use certificate will be issued.

25. When signing a house purchase contract, how to distinguish between "deposit" and "deposit"?
On June 2003, 6, Yu, who had taken a fancy to a house, signed a letter of intent to transfer the house with a real estate agent.The real estate agent promises to go through the relevant delivery modification procedures and sign a formal transfer agreement after receiving certain relevant certificates.Yu also agreed to pay 26 yuan as a deposit for the intention to transfer the house.Three days later, the real estate agent issued a receipt of 2000 yuan to Yu, and the reason for receiving the money was to collect the "deposit" for purchasing the above-mentioned house.

But Yu did not get the house in the end.She took the real estate agent to court in order to make the real estate agent who failed to hand over the house double return the deposit of 4000 yuan.The real estate agent's explanation for this is that the reason why he failed to hand over the house was that the house property owner asked for an increase in the price.The 2000 yuan they charged was a "deposit" rather than a "deposit", and it was used to look at other houses.So, what is the difference between "deposit" and "deposit"?

Analysis according to law
This case involves the difference between deposit, advance payment and deposit.

Regarding the deposit, according to Article 89 of the "Guarantee Law", the parties may agree that one party shall pay the deposit to the other party as a guarantee for the creditor's right.After the debtor performs the debt, the deposit shall be offset against the price or recovered.If the party paying the deposit fails to perform the agreed debt, it has no right to demand the return of the deposit; if the party receiving the deposit fails to perform the agreed debt, it shall return double the deposit.The deposit should be agreed in writing.The parties shall agree on the time limit for paying the deposit in the deposit contract.The deposit contract becomes effective from the date of actual delivery of the deposit.

The amount of the deposit shall be agreed upon by the parties, but shall not exceed 20.00% of the subject amount of the main contract.If the parties agree on both liquidated damages and a deposit, when one party breaches the contract, the other party can choose to apply either the liquidated damages or the deposit clause.As a form of contract guarantee, the deposit is primarily used to guarantee the performance of the contract; the deposit also has the function of proving the establishment of the contract.

Advance payment is a means of payment, and its purpose is to solve the shortage of working capital of one party to the contract.The advance payment does not have the effect of securing the performance of the obligation.If the party receiving the advance payment breaches the contract, it only needs to return the money received, instead of double return.In addition, the law has strict regulations on the use of advance payments, and the parties are not allowed to make advance payments in contract transactions arbitrarily, but there is no such restriction on deposits.

Regarding the deposit, according to the relevant provisions of the current laws of our country, it does not have the nature of a deposit. If the party who paid the deposit claims the right to deposit, the people's court will not support it.Under normal circumstances, the payment of the deposit is regarded as the delivery of advance payment.

tips

(End of this chapter)