[introduction of the lawyer in this case] Ma Linping, the founding partner of Liaoning Tongfang law firm, is currently the director of Dalian Branch of Liaoning Tongfang law firm. At the same time, he served as an arbitrator of Dalian Arbitration Commission, a member of the 13th CPPCC of Dalian Municipal People's Political Consultative Conference, an expert adviser on local legislation of the Standing Committee of the 16th National People's Congress of Dalian, a deputy director of the education and Training Committee of Liaoning Lawyers Association, a chairman of the business research and Training Committee of Dalian Lawyers Association, a director of the Seventh Council of Dalian Lawyers Association, and a visiting professor of the Law School of Liaoning Normal University. He has won many honors such as the top ten civilized lawyers in Liaoning Province, excellent lawyers in Liaoning Province, and excellent lawyers in Dalian city. Lawyer Ma Linping has strong professional ability and rich practical experience in criminal defense, and has done in-depth research and practice in many legal fields.
[judgment points] the focus of this case is: 1. Whether a project in Dalian Development Zone, the subject of the case, is jointly invested and developed by Zhao and Yu; 2. Whether Yu transferred the land use right and the above ground attachments of the subject matter of the case to Wang, and whether Wang transferred the land use right and the above ground attachments of the subject matter of the case to Yan constituted bona fide acquisition; 3. Whether Zhao's claim that the ownership of the project buildings involved in the case and the remaining land use rights belong to him should be supported.
[basic case] in 1991, Yu obtained the approval of a project in Dalian Development Zone. In 1992, he signed the agreement on unified construction management of the project with a company in the Development Zone, and handed over the project to a company in the development zone for unified construction management. In July 1992, Zhao delivered 2 million yuan of land to a company in the development zone. In November 1992, Yu and Zhao signed an agreement, agreeing that Yu would voluntarily withdraw his shares, and Zhao would buy the shares and use the above project development as collateral. In 1993, a company in the Development Zone signed a construction project construction contract with the construction company to hand over a project in the Dalian Development Zone to the construction company for specific construction. In August 1994, Yu Mou signed the state owned land use right transfer contract with the land administration bureau of Dalian Economic and Technological Development Zone, and paid the land transfer fee to obtain the state owned land use certificate. After obtaining the project, the construction company will hand over the project to its subordinate work area, that is, the work area with Zhao as the foreman for specific construction. From 1992 to 2000, Zhao continued to pay the price to Yu. Later, Zhao transferred all the assets and rights and interests he invested in the construction of a project in Dalian Development Zone in his personal name after 1991 to a real estate development Co., Ltd. in Dalian. Both parties confirmed this. In 2004, a real estate development Co., Ltd. in Dalian filed a lawsuit against Mr. Zhao to confirm that the property right and land use right of the project belonged to him because he did not assist Mr. Zhao to handle the property right of the project land use right and the attached objects to a real estate development Co., Ltd. in Dalian. In the lawsuit, Zhao proposed to a real estate development Co., Ltd. in Dalian that the creditor's rights and debts should be borne by him. A real estate development Co., Ltd. in Dalian said that Zhao could participate in the lawsuit as a third party with independent claim rights, and the litigation results should be borne by Zhao himself.
In 2000, Yu Mou signed a land use transfer agreement with Wang Mou, agreeing that Yu Mou will transfer the land use right and aboveground attachments including the above projects to Wang Mou. After the agreement was signed, Wang paid Yu all the transfer money, and Yu delivered the land use certificate to Wang in 2000, but did not assist him in handling the transfer formalities. Mr. Wang filed a lawsuit against Mr. in 2003. The people's Court of Dalian intermediate economic and Technological Development Zone ordered that within 30 days from the date when the judgment came into effect, Mr. Wang should assist Mr. Wang in handling the procedures for the change of the land use right in dispute, and at the same time hand over the building archives of the buildings on the land. After the judgment came into effect, Wang obtained the right to use the land in dispute according to the judgment, and transferred the right to use the land in dispute and the above ground buildings to Yan in 2004. Yan obtained the land use certificate of the land in 2004.
In this case, a real estate development Co., Ltd. in Dalian filed an application for the ownership of the project. This case has undergone four retrials. Wang and Yan were not satisfied with the judgment of the people's Court of Dalian Economic and Technological Development Zone on the fourth retrial, and appealed to the Dalian intermediate people's court. Yan entrusted our lawyer to represent them. Finally, the Dalian intermediate people's court revoked the original judgment and rejected the original appeal.
[judgment result] the judgment of the retrial court of second instance, the judgment of the retrial court of first instance shall be revoked, and the original appeal request of the retrial court of first instance shall be rejected.
[reason for adjudication] the court of second instance held that this case originated from a lawsuit filed by a real estate development Co., Ltd. in Dalian. Yu confirmed that the ownership of a building located in Dalian Economic and Technological Development Zone belonged to him, and the third party Zhao participated in the lawsuit and made an independent claim. After Zhao filed an independent petition, a real estate development Co., Ltd. in Dalian recognized Zhao's petition. This case should be tried around Zhao's claim for confirmation of rights. The subject matter of Zhao's application for confirmation of rights is the land use right and the above ground buildings. Although the consistency of the real estate is the basic principle established by the current real estate laws and regulations in China, the inconsistency of the real estate caused by objective reasons occurs from time to time in practice. The above ground buildings and the land use right involved in this case are separated. Therefore, the analysis is as follows: first, Zhao believes that the above ground buildings are invested and constructed by them, Although the project was originally applied for by, Zhao and Yu signed a transfer agreement, and Yu withdrew from the project. Therefore, the property rights of the above ground buildings should belong to him. In this regard, the court believes that the aboveground buildings appealed by Zhao are uncompleted projects without completion acceptance procedures, and it is unknown whether there are problems in terms of non-compliance with planning requirements and building standards. Only legitimate civil rights can be protected by law. Before the above ground buildings involved in the case are accepted by the relevant departments, it is not appropriate for the people's court to directly confirm the ownership. Secondly, for the land use right, Zhao also thinks that he actually paid the land transfer fee, and Yu transferred the project interests to him. He also obtained the land use right while acquiring the ownership of the above ground buildings. In this regard, the court believes that the transfer agreement between Zhao and Yu was signed in 1992, while Yu signed the state-owned land use right transfer contract with the land administration bureau of Dalian Economic and Technological Development Zone in 1994 and obtained the state-owned land use right certificate. Even if, as claimed by Zhao, Yu had transferred the interests of the whole project in 1992, he did not raise any objection to the land-use right formalities handled by Yu in 1994, and there was no evidence to show that he had handled the land-use right change formalities with Yu in the following years. If Zhao thought that he should enjoy the land-use right only, he did not claim the right within a few years, which is inconsistent with general common sense. The land use right certificate handled by Yu is legally issued by the administrative department. If Zhao believes that the certificate issued by the administrative authority is wrong, he should file an administrative lawsuit. If he believes that Yu should transfer the land use right certificate to his name according to the transfer agreement, he should apply for the performance of the contract instead of confirming the right.
In addition, the objective truth of this case may be, as claimed by Mr. Zhao, that a certain project was obtained and all other funds were invested by Mr. Zhao. However, from the perspective of legal truth, it is the construction contract of construction project signed by the construction company and a company in the development zone. According to the signing subject of the construction contract of construction project, a company in the development zone should be the employer of the project involved in the case and the construction company should be the construction party, Although the construction company clearly indicates that Zhao is the actual constructor, it can only show that Zhao has made investment as the actual constructor and enjoys the right to claim project funds. As the employer of the project, a company in the development zone is the actual owner of the project in law. If this case confirms that Zhao has obtained all the benefits of the project according to Zhao's petition and the transfer agreement with Yu, and directly confirms that the land use right and the ownership of the above ground buildings involved in the case are owned by Zhao, it may cause an embarrassing situation of conflict with the legal reasonable demands of a company in the development zone to exercise the rights of the employer according to the construction contract. Therefore, from this point of view, this case should not directly support Zhao's claim for confirmation of rights.
To sum up, Zhao's claim for confirmation that the ownership of the above-mentioned project buildings in Dalian Economic and Technological Development Zone and the remaining land use rights belong to him has no factual and legal basis, and this court will not support it. At the same time, the petition of a real estate development Co., Ltd. in Dalian is based on the transfer of Zhao's rights. Zhao's petition is groundless in law, and the court does not support the petition of a real estate development Co., Ltd. in Dalian. Some of the appellant's reasons for appeal are sufficient and should be adopted. The facts identified in the original judgment are clear, but the application of the law is inappropriate, and it shall be corrected according to law.
[relevant laws] Article 9 of the property law of the people's Republic of China: the establishment, change, transfer and termination of the real right of real estate shall take effect after being registered according to law; Without registration, it shall not be effective, unless otherwise provided by law. The ownership of natural resources legally owned by the state may not be registered.
Article 106 of the property law of the people's Republic of China: if the person without the right to dispose of the immovable or movable property transfers it to the transferee, the owner has the right to recover it; Unless otherwise provided by law, the transferee shall acquire the ownership of the immovable or movable property if the following conditions are met:
（1） The transferee is bona fide when the immovable or movable property is transferred;
（2） Transfer at a reasonable price;
（3） The transferred realty or chattel that should be registered according to the law has been registered, and the transferred realty or chattel that does not need to be registered has been delivered to the transferee.
If the transferee obtains the ownership of the immovable or movable property in accordance with the provisions of the preceding paragraph, the original owner shall have the right to claim compensation from the person without the right to dispose of it.
Where the parties acquire other real rights in good faith, the provisions of the preceding two paragraphs shall apply. Article 44 a legally established contract shall come into force upon its establishment. Where laws and administrative regulations provide that approval, registration and other formalities shall be handled to take effect, such provisions shall apply.
[lawyer's opinion] i. according to the provisions of the property law of the people's Republic of China, the establishment of real estate shall be registered in accordance with the law before it can take effect, and it will not take effect without registration; The real estate ownership certificate is the proof that the obligee enjoys the real right of the real estate. When the case involves land transaction, the subject of the use right specified in the land use certificate is Yu. The court cannot ignore the effectiveness of the public registration system based on the existing agreement between the two parties. The agreement can only have the effect of creditor's rights and cannot affect the change of property rights. Yu's transfer is a legal and effective transfer. 2、 The original judgment is mainly for unauthorized disposal, but in this case, there is no unauthorized disposal. The change of land use right, that is, the property right, is the right to dispose. In this case, Zhao cannot be a qualified party, and his relationship with Yu is only a debt relationship, which cannot resist the change of property right. 3、 During the trial of this case, the court of first instance made major mistakes in the examination of the litigant. The plaintiff of this case was a real estate development Co., Ltd. in Dalian at the time of the initial prosecution, and Zhao participated in the trial as a third party. According to the relevant provisions of the civil procedure law, this act of a real estate development Co., Ltd. in Dalian is deemed to be a waiver of its own litigation rights. The court shall rule to reject the lawsuit or reject the claim or treat it as a withdrawal of the lawsuit according to law. As the plaintiff, a real estate development Co., Ltd. in Dalian has no right to decide that others should bear the litigation results. If there is a dispute over creditor's rights and debts between Zhao and Yu, a separate lawsuit shall be filed instead of allowing Zhao to continue to sue as a third party with independent claims.
The case lasted a long time and went through eight court trials. The final judgment was obtained in 2016. As the construction and transfer of projects and projects are difficult to authenticate due to their long history, it is difficult for lawyers to obtain evidence and understand the case. However, the acting lawyer patiently reviewed the file, repeatedly and carefully studied the case, compared and demonstrated a number of relevant contracts and legal documents, and finally won the unanimous approval of the judge with a perfect evidence chain, and protected the legitimate rights and interests of the client. After 12 years, the case has finally settled and become a classic case in the field of property rights protection in this region.
[judgment points] the focus of this case is: 1. Whether a project in Dalian Development Zone, the subject of the case, is jointly invested and developed by Zhao and Yu; 2. Whether Yu transferred the land use right and the above ground attachments of the subject matter of the case to Wang, and whether Wang transferred the land use right and the above ground attachments of the subject matter of the case to Yan constituted bona fide acquisition; 3. Whether Zhao's claim that the ownership of the project buildings involved in the case and the remaining land use rights belong to him should be supported.
[basic case] in 1991, Yu obtained the approval of a project in Dalian Development Zone. In 1992, he signed the agreement on unified construction management of the project with a company in the Development Zone, and handed over the project to a company in the development zone for unified construction management. In July 1992, Zhao delivered 2 million yuan of land to a company in the development zone. In November 1992, Yu and Zhao signed an agreement, agreeing that Yu would voluntarily withdraw his shares, and Zhao would buy the shares and use the above project development as collateral. In 1993, a company in the Development Zone signed a construction project construction contract with the construction company to hand over a project in the Dalian Development Zone to the construction company for specific construction. In August 1994, Yu Mou signed the state owned land use right transfer contract with the land administration bureau of Dalian Economic and Technological Development Zone, and paid the land transfer fee to obtain the state owned land use certificate. After obtaining the project, the construction company will hand over the project to its subordinate work area, that is, the work area with Zhao as the foreman for specific construction. From 1992 to 2000, Zhao continued to pay the price to Yu. Later, Zhao transferred all the assets and rights and interests he invested in the construction of a project in Dalian Development Zone in his personal name after 1991 to a real estate development Co., Ltd. in Dalian. Both parties confirmed this. In 2004, a real estate development Co., Ltd. in Dalian filed a lawsuit against Mr. Zhao to confirm that the property right and land use right of the project belonged to him because he did not assist Mr. Zhao to handle the property right of the project land use right and the attached objects to a real estate development Co., Ltd. in Dalian. In the lawsuit, Zhao proposed to a real estate development Co., Ltd. in Dalian that the creditor's rights and debts should be borne by him. A real estate development Co., Ltd. in Dalian said that Zhao could participate in the lawsuit as a third party with independent claim rights, and the litigation results should be borne by Zhao himself.
In 2000, Yu Mou signed a land use transfer agreement with Wang Mou, agreeing that Yu Mou will transfer the land use right and aboveground attachments including the above projects to Wang Mou. After the agreement was signed, Wang paid Yu all the transfer money, and Yu delivered the land use certificate to Wang in 2000, but did not assist him in handling the transfer formalities. Mr. Wang filed a lawsuit against Mr. in 2003. The people's Court of Dalian intermediate economic and Technological Development Zone ordered that within 30 days from the date when the judgment came into effect, Mr. Wang should assist Mr. Wang in handling the procedures for the change of the land use right in dispute, and at the same time hand over the building archives of the buildings on the land. After the judgment came into effect, Wang obtained the right to use the land in dispute according to the judgment, and transferred the right to use the land in dispute and the above ground buildings to Yan in 2004. Yan obtained the land use certificate of the land in 2004.
In this case, a real estate development Co., Ltd. in Dalian filed an application for the ownership of the project. This case has undergone four retrials. Wang and Yan were not satisfied with the judgment of the people's Court of Dalian Economic and Technological Development Zone on the fourth retrial, and appealed to the Dalian intermediate people's court. Yan entrusted our lawyer to represent them. Finally, the Dalian intermediate people's court revoked the original judgment and rejected the original appeal.
[judgment result] the judgment of the retrial court of second instance, the judgment of the retrial court of first instance shall be revoked, and the original appeal request of the retrial court of first instance shall be rejected.
[reason for adjudication] the court of second instance held that this case originated from a lawsuit filed by a real estate development Co., Ltd. in Dalian. Yu confirmed that the ownership of a building located in Dalian Economic and Technological Development Zone belonged to him, and the third party Zhao participated in the lawsuit and made an independent claim. After Zhao filed an independent petition, a real estate development Co., Ltd. in Dalian recognized Zhao's petition. This case should be tried around Zhao's claim for confirmation of rights. The subject matter of Zhao's application for confirmation of rights is the land use right and the above ground buildings. Although the consistency of the real estate is the basic principle established by the current real estate laws and regulations in China, the inconsistency of the real estate caused by objective reasons occurs from time to time in practice. The above ground buildings and the land use right involved in this case are separated. Therefore, the analysis is as follows: first, Zhao believes that the above ground buildings are invested and constructed by them, Although the project was originally applied for by, Zhao and Yu signed a transfer agreement, and Yu withdrew from the project. Therefore, the property rights of the above ground buildings should belong to him. In this regard, the court believes that the aboveground buildings appealed by Zhao are uncompleted projects without completion acceptance procedures, and it is unknown whether there are problems in terms of non-compliance with planning requirements and building standards. Only legitimate civil rights can be protected by law. Before the above ground buildings involved in the case are accepted by the relevant departments, it is not appropriate for the people's court to directly confirm the ownership. Secondly, for the land use right, Zhao also thinks that he actually paid the land transfer fee, and Yu transferred the project interests to him. He also obtained the land use right while acquiring the ownership of the above ground buildings. In this regard, the court believes that the transfer agreement between Zhao and Yu was signed in 1992, while Yu signed the state-owned land use right transfer contract with the land administration bureau of Dalian Economic and Technological Development Zone in 1994 and obtained the state-owned land use right certificate. Even if, as claimed by Zhao, Yu had transferred the interests of the whole project in 1992, he did not raise any objection to the land-use right formalities handled by Yu in 1994, and there was no evidence to show that he had handled the land-use right change formalities with Yu in the following years. If Zhao thought that he should enjoy the land-use right only, he did not claim the right within a few years, which is inconsistent with general common sense. The land use right certificate handled by Yu is legally issued by the administrative department. If Zhao believes that the certificate issued by the administrative authority is wrong, he should file an administrative lawsuit. If he believes that Yu should transfer the land use right certificate to his name according to the transfer agreement, he should apply for the performance of the contract instead of confirming the right.
In addition, the objective truth of this case may be, as claimed by Mr. Zhao, that a certain project was obtained and all other funds were invested by Mr. Zhao. However, from the perspective of legal truth, it is the construction contract of construction project signed by the construction company and a company in the development zone. According to the signing subject of the construction contract of construction project, a company in the development zone should be the employer of the project involved in the case and the construction company should be the construction party, Although the construction company clearly indicates that Zhao is the actual constructor, it can only show that Zhao has made investment as the actual constructor and enjoys the right to claim project funds. As the employer of the project, a company in the development zone is the actual owner of the project in law. If this case confirms that Zhao has obtained all the benefits of the project according to Zhao's petition and the transfer agreement with Yu, and directly confirms that the land use right and the ownership of the above ground buildings involved in the case are owned by Zhao, it may cause an embarrassing situation of conflict with the legal reasonable demands of a company in the development zone to exercise the rights of the employer according to the construction contract. Therefore, from this point of view, this case should not directly support Zhao's claim for confirmation of rights.
To sum up, Zhao's claim for confirmation that the ownership of the above-mentioned project buildings in Dalian Economic and Technological Development Zone and the remaining land use rights belong to him has no factual and legal basis, and this court will not support it. At the same time, the petition of a real estate development Co., Ltd. in Dalian is based on the transfer of Zhao's rights. Zhao's petition is groundless in law, and the court does not support the petition of a real estate development Co., Ltd. in Dalian. Some of the appellant's reasons for appeal are sufficient and should be adopted. The facts identified in the original judgment are clear, but the application of the law is inappropriate, and it shall be corrected according to law.
[relevant laws] Article 9 of the property law of the people's Republic of China: the establishment, change, transfer and termination of the real right of real estate shall take effect after being registered according to law; Without registration, it shall not be effective, unless otherwise provided by law. The ownership of natural resources legally owned by the state may not be registered.
Article 106 of the property law of the people's Republic of China: if the person without the right to dispose of the immovable or movable property transfers it to the transferee, the owner has the right to recover it; Unless otherwise provided by law, the transferee shall acquire the ownership of the immovable or movable property if the following conditions are met:
（1） The transferee is bona fide when the immovable or movable property is transferred;
（2） Transfer at a reasonable price;
（3） The transferred realty or chattel that should be registered according to the law has been registered, and the transferred realty or chattel that does not need to be registered has been delivered to the transferee.
If the transferee obtains the ownership of the immovable or movable property in accordance with the provisions of the preceding paragraph, the original owner shall have the right to claim compensation from the person without the right to dispose of it.
Where the parties acquire other real rights in good faith, the provisions of the preceding two paragraphs shall apply. Article 44 a legally established contract shall come into force upon its establishment. Where laws and administrative regulations provide that approval, registration and other formalities shall be handled to take effect, such provisions shall apply.
[lawyer's opinion] i. according to the provisions of the property law of the people's Republic of China, the establishment of real estate shall be registered in accordance with the law before it can take effect, and it will not take effect without registration; The real estate ownership certificate is the proof that the obligee enjoys the real right of the real estate. When the case involves land transaction, the subject of the use right specified in the land use certificate is Yu. The court cannot ignore the effectiveness of the public registration system based on the existing agreement between the two parties. The agreement can only have the effect of creditor's rights and cannot affect the change of property rights. Yu's transfer is a legal and effective transfer. 2、 The original judgment is mainly for unauthorized disposal, but in this case, there is no unauthorized disposal. The change of land use right, that is, the property right, is the right to dispose. In this case, Zhao cannot be a qualified party, and his relationship with Yu is only a debt relationship, which cannot resist the change of property right. 3、 During the trial of this case, the court of first instance made major mistakes in the examination of the litigant. The plaintiff of this case was a real estate development Co., Ltd. in Dalian at the time of the initial prosecution, and Zhao participated in the trial as a third party. According to the relevant provisions of the civil procedure law, this act of a real estate development Co., Ltd. in Dalian is deemed to be a waiver of its own litigation rights. The court shall rule to reject the lawsuit or reject the claim or treat it as a withdrawal of the lawsuit according to law. As the plaintiff, a real estate development Co., Ltd. in Dalian has no right to decide that others should bear the litigation results. If there is a dispute over creditor's rights and debts between Zhao and Yu, a separate lawsuit shall be filed instead of allowing Zhao to continue to sue as a third party with independent claims.
The case lasted a long time and went through eight court trials. The final judgment was obtained in 2016. As the construction and transfer of projects and projects are difficult to authenticate due to their long history, it is difficult for lawyers to obtain evidence and understand the case. However, the acting lawyer patiently reviewed the file, repeatedly and carefully studied the case, compared and demonstrated a number of relevant contracts and legal documents, and finally won the unanimous approval of the judge with a perfect evidence chain, and protected the legitimate rights and interests of the client. After 12 years, the case has finally settled and become a classic case in the field of property rights protection in this region.
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