[Key words] lease contract relationship / rent installment payment / same debt / limitation of action calculation method
[introduction to the lawyer of this case] Zhang Guodong is a practicing lawyer of Liaoning Tongfang law firm. At present, the main service areas include administrative disputes and settlement, real estate and construction projects, commercial litigation and enterprise compliance, corporate governance and equity issues. At the same time, he has served large-scale state-owned enterprises and institutions and government institutions, including China Nonferrous Metals (Shenyang) Metallurgical Machinery Co., Ltd., Fushun Mining Group, Shenyang Conservatory of music, Liaoning Provincial Department of housing and urban rural development, Liaoning provincial emergency department, etc., and accumulated rich professional experience.
[case source] (2017) Liao 0102 min Chu No. 8733, (2017) Liao 01 min Zhong No. 12916; (2018) Liao 0102 min Chu Zi No. 8181 mediation statement (the mediation of this case is closed)
[key points of judgment] Article 5 of the provisions of the Supreme People's Court on Several Issues concerning the application of the limitation of action system in the trial of civil cases stipulates that "if the parties agree to perform the same debt in installments, the limitation of action period shall be calculated from the date when the last period of performance expires". Under the same lease contract, the term of performance of each period of rent is agreed separately, and the rent paid in installments can be regarded as "the same debt" as stipulated in Article 5 of the judicial interpretation. Therefore, the limitation of action can be calculated from the date when the last rent performance period expires.
[basic case] on June 14, 2013, Shenyang Conservatory of music (Party A), Liu Bingyu (Party B) and DASONG company (the guarantor) signed the house lease agreement on the house located at No. 61, Sanhao Street, Heping District, Shenyang City, with a building area of 183 square meters. It was agreed that "the lease term is one year. From June 14, 2013 to June 13, 2014, the annual rent is 230000 yuan, which is paid in two installments and once a half year.
On June 14, 2014, Shenyang Conservatory of music (Party A) signed a house lease agreement with Liu Bingyu (Party B) and DASONG company (the guarantor) on the house involved, agreeing that "the lease term is half a year, from June 14, 2014 to December 13, 2014, the rent is 115000 yuan, and the rent is paid in one time.
According to the agreement, the ownership of the leased house property and supporting facilities belongs to Party A. during the term of the agreement, Party B has the right to use it, but has no right to sublease it to another party. In case of breach of contract, Party A has the right to terminate the agreement, take back the house and require Party B to compensate for the losses.
At the same time, the agreement also stipulates that Shenyang DASONG science and technology books Co., Ltd. shall be jointly and severally liable for the house rent signed by the defendant Liu Bingyu and the losses caused by the violation of the agreement.
On June 21, 2017, Shenyang Conservatory of music mailed reminders to Liu Bingyu and DASONG respectively.
The defendant Liu Bingyu subleased the house to a third party and collected the rent from the third party, but he owed 230000 yuan to the plaintiff. Although the plaintiff repeatedly urged for payment, the defendant still failed to pay, which seriously infringed upon the plaintiff's legitimate rights and interests. Therefore, he appealed to the people's court, imploring the court to support the plaintiff's claim and protect the plaintiff's legitimate rights and interests. Claims: 1. The defendant Liu Bingyu was ordered to pay 230000 yuan and interest of 372091 yuan, and the defendant Shenyang DASONG science and technology books Co., Ltd. was jointly and severally liable for the debt; 2. The defendant was ordered to bear all the litigation costs.
The defendant Liu Bingyu argued that: 1. This case is a repeated lawsuit, and there is no difference in the claims, reasons and facts from the (2017) Liao 0102 min Chu 8133 case. This is obviously a duplicate lawsuit. 2. According to the lease contract signed by both parties on June 14, 2013, the unpaid rent of 15000 yuan from December 14, 2013 to June 13, 2014 is true. According to Article 3 of the contract, the rent shall be paid in two installments and once half a year. Therefore, the rent payment time shall be before December 14, 2013. The plaintiff's claim of unjust enrichment (June 24, 2017) and the current claim of lease dispute (May 23, 2018) have both exceeded the limitation period of years, lost the right to win the lawsuit and have been converted into natural debt. According to Article 3 of the lease contract from June 14, 2014 to December 13, 2014, it is agreed that "the rent shall be paid in a lump sum, and the payment time shall be the date of signing the contract on June 14, 2014. Now, it also exceeds one year's limitation of action and loses the right to win the lawsuit. 3. As for whether there is sublease or conversion, it does not affect the basic fact that the limitation of action has expired. It is suggested that the people's court reject the plaintiff's claim according to the limitation of action system.
The defendant Shenyang DASONG science and technology books Co., Ltd. argued that in addition to agreeing with Liu Bingyu's opinion, it added another reason, that is, no matter whether the rent arrears are true or not and whether the limitation of action has expired, DASONG science and technology has exceeded the six-month guarantee period and no longer bears any guarantee liability. The court is requested to reject the plaintiff's claim.
[judgment result] through the mediation of the people's court, the two parties voluntarily reached the following agreement: 1. The defendant Shenyang DASONG science and technology books Co., Ltd. paid the plaintiff Shenyang Conservatory of music house rent of 130000 yuan before November 28, 2018; If the defendant fails to perform the obligation to pay money within the period specified in this mediation, it shall pay double the debt interest during the period of delay in performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China.
[relevant law article] Article 253 of the Civil Procedure Law of the people's Republic of China, if the person subjected to execution fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, he shall double the debt interest during the period of delay in performance. If the person subjected to execution fails to perform other obligations within the time limit specified in the judgment, ruling or other legal documents, he shall pay a penalty for delay in performance.
[lawyer's opinion] the author represents the plaintiff Shenyang Conservatory of music. In the judicial practice, there has always been a great controversy about how to calculate the limitation of action for the continuous rent claims. The overwhelming majority of the opinion is that the performance period of each period of rent is agreed separately under the same lease contract, and the litigation time effect is calculated from the date when the performance period of each period of rent expires. However, according to the spirit of the judgment of the Supreme Court and the actual situation of this case, the author puts forward different opinions. The author believes that the limitation of action can be calculated from the date when the last rent performance period expires. The details are as follows:
1、 The two lease agreements signed by both parties should not be evaluated independently, and should be characterized as the same lease contract relationship as a whole
(1) From the content of the contract
First of all, the two lease agreements are the same in terms of contract subject, leased property, rent standard and other relevant rights and obligations.
Secondly, Article 4 of the two lease agreements can show that the second lease agreement belongs to the defendant Liu Bingyu's "lease renewal".
At the same time, the signing time of the contract is continuous, that is, the two parties signed the first lease agreement on June 14, 2013, and agreed that the lease term is from June 14, 2013 to June 13, 2014; Both parties signed the second lease contract on June 14, 2014, and agreed that the lease term is from June 14, 2014 to December 13, 2014.
(2) From the actual performance of the contract
On June 14, 2013, when the first lease contract was signed, the defendant should pay the first rent of 115000 yuan. However, the defendant delayed the payment through negotiation on the ground of financial difficulties. It did not pay the first rent of 115000 yuan until November 7, 2013, and applied to the plaintiff for an extension of the payment period of the second rent of 115000 yuan.
After the expiration of the first contract lease, the defendant still applied for deferred payment of rent on the ground of financial difficulties. At that time, the defendant promised that if the two parties renewed the lease contract for another six months, they would pay all the rent at one time. Therefore, both parties renewed the second lease contract and agreed in the contract that "the rent shall be paid in one time".
Therefore, no matter from the point of view of the contract content or from the point of view of the actual performance of the contract, both parties have the same creditor's right and debt relationship based on the same fact and the same legal relationship of the lease contract.
2、 This case did not exceed the limitation of action, and the original request should be protected
(1) In this case, the rent payment method involved shall be determined under the same legal relationship of the lease contract
As for the time of rent payment, Article 3 of the first lease agreement stipulates that "the rent shall be paid in two installments and once half a year", while Article 3 of the second lease agreement stipulates that "the rent shall be paid in one time".
This should be recognized as the rent payment by installments under the same legal relationship of the lease contract, that is, during the period from June 14, 2013 to December 13, 2014, the defendant should pay the rent in three installments.
At the same time, it should be noted that the second lease contract stipulates that "the rent shall be paid in a lump sum", which is the true expression of intention reached by both parties on the basis of the defendant's application for delaying the payment of the second rent of 115000 yuan and the promise to renew the lease contract for half a year (i.e. the second lease contract) as the precondition for paying off the whole rent. However, the two parties have not specifically agreed whether the rent payment time is at the stage of contract signing or contract performance.
Article 5 of the provisions of the Supreme People's Court on Several Issues concerning the application of the limitation of action system in the trial of civil cases: "if the parties agree to perform the same debt by stages, the limitation of action period shall be calculated from the date when the last period of performance expires.".
Article 6 of the supreme law on Several Issues concerning the application of the limitation of action system in the trial of civil cases stipulates that: "For a contract for which the time limit for performance is not agreed, if the time limit for performance can be determined in accordance with the provisions of articles 61 and 62 of the contract law, the time limit for action shall be calculated from the date of expiration of the time limit for performance; if the time limit for performance cannot be determined, the time limit for action shall be calculated from the date of expiration of the grace period for the creditor to require the debtor to perform its obligations. However, if the debtor clearly indicates that it will not perform its obligations when the creditor claims its rights for the first time The limitation period shall be calculated from the date on which the debtor expressly expresses that it will not perform its obligations ".
According to the above provisions, and in view of the fact that Wang, the plaintiff's staff member, requested Liu Bingyu to pay the rent through telephone communication on June 21, 2017, the litigation time effect of this case was calculated from June 21, 2017. Subsequently, the plaintiff filed a lawsuit on June 29, 2017, and the limitation of action of this case was interrupted. (2) The judgment of this case shall follow the spirit of the Supreme Court (2011) MTZ No. 304 judgment
In the first case of lease contract dispute between Qinhuangdao overseas Chinese hotel and Qinhuangdao Haigang District Administration for Industry and commerce, the Supreme Court held in its (2011) MTZ No. 304 judgment that:, "Although the lease and use contract of industrial and Commercial Complex Building The agreed rent payment method is performed by installments, which makes the rent payment of each period have certain independence, but this independence is not enough to deny the integrity of the rent debt. If the limitation of action is calculated separately from the date when the performance period of each rent debt expires, it will not only sever the integrity of the same contract, but also cause the creditor to frequently claim his rights for fear that his creditor's rights exceed the limitation of action, shake the mutual trust between the two parties, not conducive to protecting the creditor, and even deviate from the value objective of the limitation of action system ".
The above contents are for reference only!
[introduction to the lawyer of this case] Zhang Guodong is a practicing lawyer of Liaoning Tongfang law firm. At present, the main service areas include administrative disputes and settlement, real estate and construction projects, commercial litigation and enterprise compliance, corporate governance and equity issues. At the same time, he has served large-scale state-owned enterprises and institutions and government institutions, including China Nonferrous Metals (Shenyang) Metallurgical Machinery Co., Ltd., Fushun Mining Group, Shenyang Conservatory of music, Liaoning Provincial Department of housing and urban rural development, Liaoning provincial emergency department, etc., and accumulated rich professional experience.
[case source] (2017) Liao 0102 min Chu No. 8733, (2017) Liao 01 min Zhong No. 12916; (2018) Liao 0102 min Chu Zi No. 8181 mediation statement (the mediation of this case is closed)
[key points of judgment] Article 5 of the provisions of the Supreme People's Court on Several Issues concerning the application of the limitation of action system in the trial of civil cases stipulates that "if the parties agree to perform the same debt in installments, the limitation of action period shall be calculated from the date when the last period of performance expires". Under the same lease contract, the term of performance of each period of rent is agreed separately, and the rent paid in installments can be regarded as "the same debt" as stipulated in Article 5 of the judicial interpretation. Therefore, the limitation of action can be calculated from the date when the last rent performance period expires.
[basic case] on June 14, 2013, Shenyang Conservatory of music (Party A), Liu Bingyu (Party B) and DASONG company (the guarantor) signed the house lease agreement on the house located at No. 61, Sanhao Street, Heping District, Shenyang City, with a building area of 183 square meters. It was agreed that "the lease term is one year. From June 14, 2013 to June 13, 2014, the annual rent is 230000 yuan, which is paid in two installments and once a half year.
On June 14, 2014, Shenyang Conservatory of music (Party A) signed a house lease agreement with Liu Bingyu (Party B) and DASONG company (the guarantor) on the house involved, agreeing that "the lease term is half a year, from June 14, 2014 to December 13, 2014, the rent is 115000 yuan, and the rent is paid in one time.
According to the agreement, the ownership of the leased house property and supporting facilities belongs to Party A. during the term of the agreement, Party B has the right to use it, but has no right to sublease it to another party. In case of breach of contract, Party A has the right to terminate the agreement, take back the house and require Party B to compensate for the losses.
At the same time, the agreement also stipulates that Shenyang DASONG science and technology books Co., Ltd. shall be jointly and severally liable for the house rent signed by the defendant Liu Bingyu and the losses caused by the violation of the agreement.
On June 21, 2017, Shenyang Conservatory of music mailed reminders to Liu Bingyu and DASONG respectively.
The defendant Liu Bingyu subleased the house to a third party and collected the rent from the third party, but he owed 230000 yuan to the plaintiff. Although the plaintiff repeatedly urged for payment, the defendant still failed to pay, which seriously infringed upon the plaintiff's legitimate rights and interests. Therefore, he appealed to the people's court, imploring the court to support the plaintiff's claim and protect the plaintiff's legitimate rights and interests. Claims: 1. The defendant Liu Bingyu was ordered to pay 230000 yuan and interest of 372091 yuan, and the defendant Shenyang DASONG science and technology books Co., Ltd. was jointly and severally liable for the debt; 2. The defendant was ordered to bear all the litigation costs.
The defendant Liu Bingyu argued that: 1. This case is a repeated lawsuit, and there is no difference in the claims, reasons and facts from the (2017) Liao 0102 min Chu 8133 case. This is obviously a duplicate lawsuit. 2. According to the lease contract signed by both parties on June 14, 2013, the unpaid rent of 15000 yuan from December 14, 2013 to June 13, 2014 is true. According to Article 3 of the contract, the rent shall be paid in two installments and once half a year. Therefore, the rent payment time shall be before December 14, 2013. The plaintiff's claim of unjust enrichment (June 24, 2017) and the current claim of lease dispute (May 23, 2018) have both exceeded the limitation period of years, lost the right to win the lawsuit and have been converted into natural debt. According to Article 3 of the lease contract from June 14, 2014 to December 13, 2014, it is agreed that "the rent shall be paid in a lump sum, and the payment time shall be the date of signing the contract on June 14, 2014. Now, it also exceeds one year's limitation of action and loses the right to win the lawsuit. 3. As for whether there is sublease or conversion, it does not affect the basic fact that the limitation of action has expired. It is suggested that the people's court reject the plaintiff's claim according to the limitation of action system.
The defendant Shenyang DASONG science and technology books Co., Ltd. argued that in addition to agreeing with Liu Bingyu's opinion, it added another reason, that is, no matter whether the rent arrears are true or not and whether the limitation of action has expired, DASONG science and technology has exceeded the six-month guarantee period and no longer bears any guarantee liability. The court is requested to reject the plaintiff's claim.
[judgment result] through the mediation of the people's court, the two parties voluntarily reached the following agreement: 1. The defendant Shenyang DASONG science and technology books Co., Ltd. paid the plaintiff Shenyang Conservatory of music house rent of 130000 yuan before November 28, 2018; If the defendant fails to perform the obligation to pay money within the period specified in this mediation, it shall pay double the debt interest during the period of delay in performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China.
[relevant law article] Article 253 of the Civil Procedure Law of the people's Republic of China, if the person subjected to execution fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, he shall double the debt interest during the period of delay in performance. If the person subjected to execution fails to perform other obligations within the time limit specified in the judgment, ruling or other legal documents, he shall pay a penalty for delay in performance.
[lawyer's opinion] the author represents the plaintiff Shenyang Conservatory of music. In the judicial practice, there has always been a great controversy about how to calculate the limitation of action for the continuous rent claims. The overwhelming majority of the opinion is that the performance period of each period of rent is agreed separately under the same lease contract, and the litigation time effect is calculated from the date when the performance period of each period of rent expires. However, according to the spirit of the judgment of the Supreme Court and the actual situation of this case, the author puts forward different opinions. The author believes that the limitation of action can be calculated from the date when the last rent performance period expires. The details are as follows:
1、 The two lease agreements signed by both parties should not be evaluated independently, and should be characterized as the same lease contract relationship as a whole
(1) From the content of the contract
First of all, the two lease agreements are the same in terms of contract subject, leased property, rent standard and other relevant rights and obligations.
Secondly, Article 4 of the two lease agreements can show that the second lease agreement belongs to the defendant Liu Bingyu's "lease renewal".
At the same time, the signing time of the contract is continuous, that is, the two parties signed the first lease agreement on June 14, 2013, and agreed that the lease term is from June 14, 2013 to June 13, 2014; Both parties signed the second lease contract on June 14, 2014, and agreed that the lease term is from June 14, 2014 to December 13, 2014.
(2) From the actual performance of the contract
On June 14, 2013, when the first lease contract was signed, the defendant should pay the first rent of 115000 yuan. However, the defendant delayed the payment through negotiation on the ground of financial difficulties. It did not pay the first rent of 115000 yuan until November 7, 2013, and applied to the plaintiff for an extension of the payment period of the second rent of 115000 yuan.
After the expiration of the first contract lease, the defendant still applied for deferred payment of rent on the ground of financial difficulties. At that time, the defendant promised that if the two parties renewed the lease contract for another six months, they would pay all the rent at one time. Therefore, both parties renewed the second lease contract and agreed in the contract that "the rent shall be paid in one time".
Therefore, no matter from the point of view of the contract content or from the point of view of the actual performance of the contract, both parties have the same creditor's right and debt relationship based on the same fact and the same legal relationship of the lease contract.
2、 This case did not exceed the limitation of action, and the original request should be protected
(1) In this case, the rent payment method involved shall be determined under the same legal relationship of the lease contract
As for the time of rent payment, Article 3 of the first lease agreement stipulates that "the rent shall be paid in two installments and once half a year", while Article 3 of the second lease agreement stipulates that "the rent shall be paid in one time".
This should be recognized as the rent payment by installments under the same legal relationship of the lease contract, that is, during the period from June 14, 2013 to December 13, 2014, the defendant should pay the rent in three installments.
At the same time, it should be noted that the second lease contract stipulates that "the rent shall be paid in a lump sum", which is the true expression of intention reached by both parties on the basis of the defendant's application for delaying the payment of the second rent of 115000 yuan and the promise to renew the lease contract for half a year (i.e. the second lease contract) as the precondition for paying off the whole rent. However, the two parties have not specifically agreed whether the rent payment time is at the stage of contract signing or contract performance.
Article 5 of the provisions of the Supreme People's Court on Several Issues concerning the application of the limitation of action system in the trial of civil cases: "if the parties agree to perform the same debt by stages, the limitation of action period shall be calculated from the date when the last period of performance expires.".
Article 6 of the supreme law on Several Issues concerning the application of the limitation of action system in the trial of civil cases stipulates that: "For a contract for which the time limit for performance is not agreed, if the time limit for performance can be determined in accordance with the provisions of articles 61 and 62 of the contract law, the time limit for action shall be calculated from the date of expiration of the time limit for performance; if the time limit for performance cannot be determined, the time limit for action shall be calculated from the date of expiration of the grace period for the creditor to require the debtor to perform its obligations. However, if the debtor clearly indicates that it will not perform its obligations when the creditor claims its rights for the first time The limitation period shall be calculated from the date on which the debtor expressly expresses that it will not perform its obligations ".
According to the above provisions, and in view of the fact that Wang, the plaintiff's staff member, requested Liu Bingyu to pay the rent through telephone communication on June 21, 2017, the litigation time effect of this case was calculated from June 21, 2017. Subsequently, the plaintiff filed a lawsuit on June 29, 2017, and the limitation of action of this case was interrupted. (2) The judgment of this case shall follow the spirit of the Supreme Court (2011) MTZ No. 304 judgment
In the first case of lease contract dispute between Qinhuangdao overseas Chinese hotel and Qinhuangdao Haigang District Administration for Industry and commerce, the Supreme Court held in its (2011) MTZ No. 304 judgment that:, "Although the lease and use contract of industrial and Commercial Complex Building The agreed rent payment method is performed by installments, which makes the rent payment of each period have certain independence, but this independence is not enough to deny the integrity of the rent debt. If the limitation of action is calculated separately from the date when the performance period of each rent debt expires, it will not only sever the integrity of the same contract, but also cause the creditor to frequently claim his rights for fear that his creditor's rights exceed the limitation of action, shake the mutual trust between the two parties, not conducive to protecting the creditor, and even deviate from the value objective of the limitation of action system ".
The above contents are for reference only!
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