Lawyer's character

"Appellant, state your claims, facts and reasons." The male judge said expressionlessly.

"Litigation request: 1. Order to revoke the civil judgment of the first instance, change the judgment in accordance with the law or remand for retrial. 2. Order the respondent to bear the litigation costs of the first and second instances.

Facts and reasons: The court of first instance held that Article 28 of the "Regulations of the Supreme People's Court on Certain Issues Concerning the People's Court's Handling of Enforcement Objections and Copies" is the review rule for real estate without priority rights to payment in the execution of monetary claims, and the case involved The parking space involved generated security rights due to mortgage registration, and the effective judgment has been confirmed as an execution content. Therefore, the appellant’s defense claim that Article 28 of the above regulations should be applied to exclude compulsory execution does not meet the applicable conditions. The appellant believed that the court of first instance applied the law incorrectly for the following reasons:

1. The appellant believes that Article 27 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts" stipulates that "the person applying for execution enjoys priority in the subject matter of execution, such as security rights against persons outside the case, etc." The People's Court will not support the objections raised by persons outside the case to exclude the right to compensation, unless otherwise provided for by laws and judicial interpretations.

Article 28 of the above provisions falls within the scope of the proviso stipulated in Article 27 (proviso: unless otherwise provided by law or judicial interpretation), that is, the real estate buyer meets the four requirements stipulated in Article 28. After these requirements, it is sufficient to resist the enforcement of security rights.

2. The appellant is the owner of a community developed by a third party involved in the case. The parking space he purchased is the necessary supporting facilities for the residence he purchased and has been using it since the purchase.

Therefore, it can be determined that the parking space purchased by the appellant has the necessary residential right attributes that are specially protected for "commercial housing purchased by consumers" in Article 29 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts".

In summary, the execution objection raised by the appellant fully meets the conditions of Article 28 and Article 29 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Copies by the People's Courts", and the appellant's enjoyment of the subject matter of execution is sufficient to exclude Civil rights and interests enforced by the People's Court.

Please ask the court to rule according to law, over. "Fang Yi said.

"Defended by the above-mentioned person," the male judge said.

“The respondent disagrees with the appellant’s claim.

According to the mortgage contract signed between the appellee and the third party in this case (real estate developer), the mortgage registration and the effective court judgment, it is claimed that the exercise of the right of priority for payment of the mortgaged parking space involved in the case is in compliance with legal provisions. The appellant, as the buyer of the parking space, The reasons for excluding the appellee from applying for compulsory execution are untenable. The reasons are as follows:

First, according to Article 27 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsiderations by the People's Courts", the respondent's mortgage right to the parking space involved in the case has been established in accordance with the law, and there are effective legal documents regarding this It is confirmed that the appellee has the right to exercise the priority right to compensation through auction and sale.

Second, the proviso to Article 27 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsiderations by the People's Court" shall only be applied to the "Reply of the Supreme People's Court on the Priority of Right to Reimbursement of Construction Project Prices" ( The "Priority Right to Reimbursement of Project Prices" and the "Priority Rights of Commercial Housing Consumers" stipulated in the Law Interpretation [2002] No. 16).

The subject of the dispute in the case was a parking space, not a commercial building. The appellant raised an objection to execution, and the proviso to Article 27 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration by People's Courts" did not apply.

Third, the appellant’s reason for excluding the appellee from compulsory execution is untenable because he is a buyer as stipulated in Article 28 of the “Regulations of the Supreme People’s Court on Certain Issues Concerning the Handling of Enforcement Objections and Reconsiderations by the People’s Courts”.

Article 28 of the "Regulations of the Supreme People's Court on Certain Issues Concerning the Handling of Enforcement Objections and Reconsiderations by People's Courts" stipulates that persons applying for execution of monetary claims shall not include mortgagees.

The parking space involved in this case has been mortgaged in accordance with the law and has been confirmed by the effective judgment. Even if the appellant meets the requirements of Article 28 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration by the People's Court", The appellee's legal right to mortgage cannot be excluded.

Fourth, after signing the sales contract, the appellant neither registered the online signing nor applied for notarization to the notary office as stipulated in the contract, so the appellant shall bear its own risks. The respondent has performed due diligence on the mortgaged property involved in the case, performed necessary duties of care, signed a mortgage contract, and handled mortgage registration. The respondent is not at fault.

In summary, the respondent requested the court to reject the appellant’s claim in accordance with the law and uphold the original judgment. "The old lawyer said.

After listening to the old lawyer's reply, Fang Yi knew that he had met his opponent today, and as expected, Jiang was still more powerful than ever. However, this also aroused Fang Yi's fighting spirit. The stronger his opponent, the stronger he will be.

"Appellant, appellee, do you have any new evidence to submit?" the male judge asked.

"No." Both parties said.

"Appellant, do you have any objection to the facts found by the court of first instance?" the male judge asked.

"No objection." Fang Yi said.

He repeatedly read the case files of the previous first instance and studied the judgment of the first instance. Neither party had any disputes about the facts of the case during the first instance trial. The timeline was also very clear. The time when Lu Meifeng signed the "Parking Space Subscription Letter" with the developer was relatively The bank signed the mortgage contract with the developer half a month early, and Lu Meifeng paid the entire price, as evidenced by invoices.

Other facts are simpler. The loan and mortgage contracts have been confirmed by the court in the form of judgments, and there is no dispute.

The focus of this case is: whether the appellant Lu Meifeng enjoys civil rights and interests in the parking space involved that are sufficient to exclude enforcement by the people's court. To put it bluntly, it is whether the provisions of Article 28 or Article 29 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration by the People's Court" are applicable to this case.

To be honest, Fang Yi was not sure whether Article 28 or Article 29 should be applied. Based on the principle of beating the master to death with random punches, Fang Yi included both of them in the reasons for appeal.

"Does the appellee have any objection to the facts of the case found in the first instance?" the male judge asked.

"No objection," said the old lawyer.

"Respondent, let me ask, according to the "Real Estate Assessment Consultation Report" provided by our bank to the court of first instance, the property rights of the parking spaces involved in the case were registered under the name of the real estate developer when the mortgage was processed, and the current status of the parking spaces is: all parking spaces are in use. .

Respondent, have you conducted further investigation to find out whether the parking space has been sold or whether there are other rights holders? asked the male judge.