[Key words]: investment agreement, land transfer
[introduction of the lawyer in this case]:
Yang Xingquan, Secretary of the Party committee and director of Liaoning Tongfang law firm, is a national excellent lawyer. He is currently the president of the Liaoning Provincial Lawyers Association, the president of the Liaoning Provincial Lawyers Association of the Communist Party of China, the Deputy Secretary of the Liaoning Provincial lawyers Industry Committee of the Communist Party of China, and the representative of the Liaoning Provincial People's Congress.
Lawyer Yang Xingquan's main business areas are domestic arbitration and litigation business and criminal business, and he has provided high-quality legal advisory services to more than 100 enterprises, institutions and institutions.
Wang Sicong, partner of Liaoning Tongfang law firm. Handled a large number of sales contracts, loan contracts, construction and real estate related contract disputes, labor dispute cases, tort damage compensation cases, in addition, handled many criminal cases and administrative litigation cases.
[judging points]:
1. The contents of documents such as the investment agreement signed by the government and the enterprise in the process of attracting investment are binding on both parties. Under the condition of not violating the prohibitive provisions of laws, both parties shall abide by and perform their obligations as agreed, otherwise, they shall bear corresponding liabilities for breach of contract.
2. Since the investment agreement signed by the government for investment promotion and investment attraction has particularity with other civil legal acts such as land transfer concluded by various government departments and investors for the purpose of fulfilling the investment agreement, it cannot be separated from each other in the process of case trial, and attention should be paid to the high relevance of various government departments, The basic facts of the case will be judged by taking the civil acts carried out by various departments to fulfill the investment agreement as a whole.
[basic facts]: the construction project of the disputed land in this case is the result of the mayor of Shenyang who went to Hong Kong to attract investment in 2009. Later, the plaintiff 1 Nanhua asset Holding Co., Ltd. (hereinafter referred to as Nanhua company) and the defendant Shenyang Huanggu District Urban Construction Bureau (hereinafter referred to as Huanggu District Urban Construction Bureau) signed the investment agreement and the supplementary agreement, which are the specific performance of implementing the investment attraction project. The plaintiff 2 Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. (hereinafter referred to as Shenyang Nanhua) is a project company established by Nanhua company for the land involved in the case in order to fulfill its obligations under the investment agreement.
In March 2010, Shenyang Nanhua won the land involved in the case through public delisting, with a total price of 1.176 billion yuan, and signed the land transaction confirmation with the defendant Shenyang land trading center. At the same time, it paid the down payment of 235 million yuan according to the agreed 20% standard. The collected land transfer price was handed over to Shenyang Municipal Finance Bureau of about 47.39 million yuan, and the remaining 187 million yuan was transferred to Huanggu District government for land demolition compensation.
After that, the Urban Construction Bureau of Huanggu District and the government of Huanggu District repeatedly requested Shenyang Nanhua to make up the land transfer fee on the ground that the national policy had changed and the down payment ratio should not be less than 80%, otherwise the demolition permit could not be handled and the demolition could not be started. Shenyang Nanhua has actively communicated and coordinated with the municipal governments, but it has not been resolved. As of September 2015, no demolition work had been carried out on the involved plot, and the government had not taken any measures to prevent the expansion of losses, and had not returned the 235 million yuan of land payment paid by Shenyang Nanhua. Although several minutes of the meeting were formed after several meetings and discussions of the Shenyang municipal government, it was decided that the owner of the funds involved should return the principal and interest to Nanhua. However, the Huanggu District government and the land trading center did not agree to pay the interest and asked Shenyang Nanhua to accept the scheme of returning the principal without interest. Therefore, the second plaintiff had no choice but to seek a solution to the interest payment of the money involved through legal channels and filed a lawsuit with the Liaoning Provincial Higher People's court, claiming that: 1. The investment agreement and supplementary agreement signed by Nanhua land and Huanggu District Urban Construction Bureau should be rescinded; 2、 Cancel the transaction confirmation signed between Shenyang Nanhua company and Shenyang land trading center (since Shenyang land trading center has repeatedly agreed to return all the paid land funds verbally, there is no dispute between the two parties for the time being, and the plaintiff has no claim for the return of the contract funds, but reserves the right of recourse); 3、 It was decided that Huanggu District Urban Construction Bureau should pay Nanhua land company the actual loss of 1401821 yuan caused by the failure to perform the investment agreement due to the violation of the investment agreement; The government of Huanggu District shall be jointly and severally liable for the loss; 4、 It is decided that Shenyang land trading center shall pay Shenyang Nanhua company a total of 190021471.76 yuan in actual losses and expected interest losses caused by violation of the transaction confirmation. The interest loss of the paid contract price of 235 million yuan is calculated according to the loan interest rate of the people's Bank of China for the same period to the date of return. As of August 31, 2015, the interest loss is 83655886.76 yuan; The loss of land appreciation is 100 million yuan (the loss should be 386.17 million yuan. The plaintiff only claims 100 million yuan in this lawsuit, and reserves the right to sue for the remaining 286.17 million yuan). Other losses are 6365585 yuan; 5、 It is decided that the municipal land and Resources Bureau shall be jointly and severally liable for the fourth claim; 6、 The district government shall be jointly and severally liable for the fourth claim; 7、 It was decided that the Municipal Finance Bureau should bear joint and several liability for the corresponding interest loss of 47.39 million yuan in the total amount of land claimed in the fourth lawsuit. After that, the higher people's Court of Liaoning Province ruled that: 1. The investment agreement and supplementary agreement signed by Nanhua land and Huanggu District Urban Construction Bureau were rescinded; 2、 Cancel the transaction confirmation signed by Shenyang Nanhua company and Shenyang land transaction center; 3、 Shenyang land trading center shall pay the interest of Shenyang Nanhua company within 10 days after the judgment takes effect, that is, the interest of the principal of 235362120 yuan (calculated from March 3, 2010 to the date of payment of the principal of 235362120 yuan, calculated according to the loan interest rate of the people's Bank of China for the same period); 4、 Shenyang land trading center shall, within 10 days after the judgment comes into effect, pay Shenyang Nanhua company 6365585 yuan of all expenses and losses recorded in the company's account for maintaining the normal operation of the company and the actual expenditure of the development and construction of the plot project from the establishment of the company in 2010 to the date of the lawsuit; 5、 Huanggu District Urban Construction Bureau shall be jointly and severally liable for the third and fourth judgments; 6、 Reject other claims of the plaintiff. If it fails to perform the above-mentioned obligation to pay money within the period specified in the judgment, it shall double the interest on the debt during the period of delay in performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China. The case acceptance fee was 998917 yuan, 50% of which was borne by Shenyang land trading center and Huanggu District Urban Construction Bureau.
After the judgment of the first trial, Shenyang land trading center and Huanggu District Urban Construction Bureau both filed an appeal, demanding that the original judgment be rescinded, the second original application be rejected or the case be sent back for retrial. After the hearing of the second circuit court of the Supreme People's court, the final judgment of this case was as follows: 1. The first, second, third, fifth and sixth items of the civil judgment (2015) Liao min Yi Chu Zi No. 00041 of Liaoning Provincial Higher People's court were upheld, That is, "I. cancel the investment agreement and supplementary agreement signed between Nanhua Real Estate Co., Ltd. and Shenyang Huanggu District Urban Construction Bureau; II. Cancel the confirmation of listing and transaction of plot 63, Ningshan middle road signed between Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. and Shenyang land transaction center" ； 3、 Shenyang land trading center shall pay the interest of Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. within 10 days after the judgment takes effect, that is, the interest of the principal of 235362120 yuan (calculated from March 3, 2010 to the date of payment of the principal of 235362120 yuan, calculated according to the loan interest rate of the people's Bank of China for the same period); 5、 Shenyang Huanggu District Urban Construction Bureau shall bear joint and several liability for the above three and four judgments; 6、 Reject other claims of the plaintiff "; 2、 Item 4 of the civil judgment of Liaoning Higher People's Court (2015) lmycz No. 00041 is changed to: Shenyang land trading center shall compensate Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. for the operating loss of 4026831.98 yuan within 10 days after the judgment takes effect.
[judgment result]: in this case, the final judgment of the Supreme People's court is: 1. The investment agreement and supplementary agreement signed by and between Nanhua land Co., Ltd. and Shenyang Huanggu District Urban Construction Bureau are rescinded; 2、 Cancel the transaction confirmation of No. 63, Ningshan Middle Road, signed by Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. and Shenyang land transaction center; 3、 Shenyang land trading center shall pay the interest of Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. within 10 days after the judgment takes effect, that is, the interest of the principal of 235362120 yuan (calculated from March 3, 2010 to the date of payment of the principal of 235362120 yuan, calculated according to the loan interest rate of the people's Bank of China for the same period); 4、 Shenyang Huanggu District Urban Construction Bureau shall bear joint and several liability for the above three and four judgments; 5、 Shenyang land trading center shall compensate Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. for the operating loss of 4026831.98 yuan within 10 days after the judgment takes effect.
[reasons for adjudication]: the Supreme People's court believes that the focus of the dispute in this case is two: first, the determination of the liability for breach of contract in this case, that is, whether Shenyang land trading center and Huanggu District Urban Construction Bureau bear the liability for breach of contract; Second, the liability and amount of the operation loss claimed by Shenyang Nanhua company.
1、 On the determination of liability for breach of contract
On November 2, 2009, the investment agreement signed by Huanggu District Urban Construction Bureau and Nanhua company is the preliminary intention and framework agreement to be reached by both parties on the land involved in the development project. In this agreement, it is agreed that "when the land is delisted, Party B shall pay the down payment (including the bid security) of the land according to 20% of the total land payment in the transaction confirmation, and the rest shall be paid according to the demolition progress". According to the principle of contract relativity, the contents of the above agreement shall have binding force on Huanggu District Urban Construction Bureau and Nanhua land. After that, Nanhua land company established Shenyang Nanhua company, and Shenyang Nanhua company won the land involved in the case through participating in the land bidding process. On March 3, 2010, Shenyang land reserve Trading Center issued a transaction confirmation letter to Shenyang Nanhua company, confirming the location, area, price and payment method of the land acquired by Shenyang Nanhua company. The confirmation letter was sealed and confirmed by Shenyang land reserve Trading Center and Shenyang Nanhua company, so it has binding force on both parties. The letter of confirmation stipulates that "the bidder of the plot shall make a down payment of 20% of the total land transaction price on the date of transaction, and the remaining payment shall be paid in advance according to the progress of land demolition, and shall be fully paid within one year from the date of transaction of the plot". After Shenyang Nanhua company paid 20% of the land transaction price as agreed in the letter of confirmation, Shenyang land transaction center urged Shenyang Nanhua company to pay the remaining land price. Shenyang Nanhua company claimed that it had paid the down payment as agreed in the contract, but the land involved in the case did not start the demolition work and refused to pay the remaining land price in full, which caused a dispute between the two parties.
The Supreme Court held that, first of all, whether the Shenyang land trading center should bear the liability for breach of contract. According to the contract and the relevant evidence of this case, Shenyang Nanhua company paid 20% of the total land transaction price, i.e. 235362120 yuan, on the date of land transaction, which is in line with the investment agreement and transaction confirmation of both parties. Shenyang Nanhua company claims that the remaining payment shall be paid according to the demolition progress, which has the contract basis. However, after Shenyang Nanhua company paid the down payment for the land as agreed, Huanggu District government and relevant departments did not handle the demolition permit and did not start any other demolition work. In this case, Shenyang Nanhua company has the right to refuse to pay the remaining land price. As the counterpart of the contract, Shenyang land reserve Trading Center fails to provide the corresponding land as agreed in the contract, which constitutes a breach of contract for Shenyang Nanhua company. After Shenyang land reserve Trading Center is divided into Shenyang land reserve center and Shenyang land trading center, the relevant rights and obligations are inherited by Shenyang land trading center. Therefore, Shenyang land trading center shall bear the liability for breach of contract to Shenyang Nanhua company. Secondly, on the joint and several liability of Huanggu District Urban Construction Bureau. Although the Urban Construction Bureau of Huanggu District claims that it is not the contract counterpart of the transaction confirmation between Shenyang land trading center and Shenyang Nanhua company, but the party to the framework investment agreement, the investment agreement is the premise and basis of the transaction confirmation, and the investment and development relationship between the two parties obviously has the characteristics of attracting investment. As analyzed in the original judgment, The Urban Construction Bureau of Huanggu District and several other government departments have a high degree of correlation between rights and obligations. The Urban Construction Bureau of Huanggu District and Shenyang land transaction center can be summarized as one party of the contract, and both have the obligation to perform relevant acts according to the contract. In this case, the Urban Construction Bureau of Huanggu District is actually in the position of the demolisher. The investment agreement and the transaction confirmation failed to be performed in the end There is a direct relationship between the failure of the Urban Construction Bureau of Huanggu District to start the demolition in time. Therefore, the original judgment that the Urban Construction Bureau of Huanggu District shall bear joint and several liability for the debts of the land trading center is not improper in applying the law.
2、 On the assumption and amount determination of breach of contract losses
Article 97 of the contract law of the people's Republic of China stipulates that after the termination of the contract, the parties have the right to claim compensation for losses. The breaching party shall be liable for all losses suffered by the non breaching party due to breach of contract. In this case, according to the investment agreement signed between Huanggu District Urban Construction Bureau and Nanhua land, Huanggu District Urban Construction Bureau selected Nanhua land as the sole developer, and Nanhua land promised to register an independent real estate development company in Huanggu District, Shenyang City, Liaoning Province before bidding for the land use right. The business scope of Shenyang Nanhua company specially established by Nanhua real estate company is the development of the plot involved in the case and the sale of commercial houses. After the establishment of Shenyang Nanhua company, it has not carried out other businesses. Therefore, the normal operating expenses of Shenyang Nanhua company belong to the expenses incurred for performing the contract involved in the case and belong to the scope of direct losses. Shenyang land trading center, as the defaulting party, shall bear the liability for compensation.
On the determination of the amount of loss. In the second review, Shenyang Nanhua company provided the subsidiary ledger of the company to prove the operating expenses incurred by the company from 2010 to 2015, including 4 categories and 26 specific expenditures, namely: development indirect expenses of 851255.12 yuan, fixed assets of 3300 yuan, management expenses of 3195973.32 yuan, and financial expenses of 2298246.54 yuan, totaling 6345474.98 yuan. After investigation, the detailed ledger provided by Shenyang Nanhua company shows that the business entertainment expenses under the development indirect expenses are 14960.60 yuan, the business entertainment expenses under the management expenses are 2318643 yuan, and the business entertainment expenses under the management expenses exceed 1 / 3 of the company's operating expenses, which is obviously beyond the reasonable range. Moreover, the appellant holds an objection, and Shenyang Nanhua company cannot make a reasonable explanation, Therefore, the court deducted the amount of operation loss of Shenyang Nanhua company borne by Shenyang land trading center determined in the original judgment, that is, the amount of operation loss of Shenyang Nanhua company that Shenyang land trading center should compensate is 4026831.98 yuan.
In addition, Shenyang Nanhua company and Nanhua land company made seven claims when they filed a lawsuit. The first instance judgment only fully supported the first and second claims, partially supported the amount of loss in the fourth claim, and the other claims were rejected. In the case that Shenyang Nanhua company and Nanhua land company partially won and partially lost the lawsuit, The acceptance fee of the first instance case in the original judgment was borne by Shenyang land trading center and Huanggu District Urban Construction Bureau, which violated the principle of civil litigation that the litigation fee should be borne by the losing party, and this court adjusted it according to law.
[relevant provisions]:
Contract Law:
Article 94
[legal termination of contract] under any of the following circumstances, the parties may terminate the contract:
（1） Due to force majeure
[introduction of the lawyer in this case]:
Yang Xingquan, Secretary of the Party committee and director of Liaoning Tongfang law firm, is a national excellent lawyer. He is currently the president of the Liaoning Provincial Lawyers Association, the president of the Liaoning Provincial Lawyers Association of the Communist Party of China, the Deputy Secretary of the Liaoning Provincial lawyers Industry Committee of the Communist Party of China, and the representative of the Liaoning Provincial People's Congress.
Lawyer Yang Xingquan's main business areas are domestic arbitration and litigation business and criminal business, and he has provided high-quality legal advisory services to more than 100 enterprises, institutions and institutions.
Wang Sicong, partner of Liaoning Tongfang law firm. Handled a large number of sales contracts, loan contracts, construction and real estate related contract disputes, labor dispute cases, tort damage compensation cases, in addition, handled many criminal cases and administrative litigation cases.
[judging points]:
1. The contents of documents such as the investment agreement signed by the government and the enterprise in the process of attracting investment are binding on both parties. Under the condition of not violating the prohibitive provisions of laws, both parties shall abide by and perform their obligations as agreed, otherwise, they shall bear corresponding liabilities for breach of contract.
2. Since the investment agreement signed by the government for investment promotion and investment attraction has particularity with other civil legal acts such as land transfer concluded by various government departments and investors for the purpose of fulfilling the investment agreement, it cannot be separated from each other in the process of case trial, and attention should be paid to the high relevance of various government departments, The basic facts of the case will be judged by taking the civil acts carried out by various departments to fulfill the investment agreement as a whole.
[basic facts]: the construction project of the disputed land in this case is the result of the mayor of Shenyang who went to Hong Kong to attract investment in 2009. Later, the plaintiff 1 Nanhua asset Holding Co., Ltd. (hereinafter referred to as Nanhua company) and the defendant Shenyang Huanggu District Urban Construction Bureau (hereinafter referred to as Huanggu District Urban Construction Bureau) signed the investment agreement and the supplementary agreement, which are the specific performance of implementing the investment attraction project. The plaintiff 2 Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. (hereinafter referred to as Shenyang Nanhua) is a project company established by Nanhua company for the land involved in the case in order to fulfill its obligations under the investment agreement.
In March 2010, Shenyang Nanhua won the land involved in the case through public delisting, with a total price of 1.176 billion yuan, and signed the land transaction confirmation with the defendant Shenyang land trading center. At the same time, it paid the down payment of 235 million yuan according to the agreed 20% standard. The collected land transfer price was handed over to Shenyang Municipal Finance Bureau of about 47.39 million yuan, and the remaining 187 million yuan was transferred to Huanggu District government for land demolition compensation.
After that, the Urban Construction Bureau of Huanggu District and the government of Huanggu District repeatedly requested Shenyang Nanhua to make up the land transfer fee on the ground that the national policy had changed and the down payment ratio should not be less than 80%, otherwise the demolition permit could not be handled and the demolition could not be started. Shenyang Nanhua has actively communicated and coordinated with the municipal governments, but it has not been resolved. As of September 2015, no demolition work had been carried out on the involved plot, and the government had not taken any measures to prevent the expansion of losses, and had not returned the 235 million yuan of land payment paid by Shenyang Nanhua. Although several minutes of the meeting were formed after several meetings and discussions of the Shenyang municipal government, it was decided that the owner of the funds involved should return the principal and interest to Nanhua. However, the Huanggu District government and the land trading center did not agree to pay the interest and asked Shenyang Nanhua to accept the scheme of returning the principal without interest. Therefore, the second plaintiff had no choice but to seek a solution to the interest payment of the money involved through legal channels and filed a lawsuit with the Liaoning Provincial Higher People's court, claiming that: 1. The investment agreement and supplementary agreement signed by Nanhua land and Huanggu District Urban Construction Bureau should be rescinded; 2、 Cancel the transaction confirmation signed between Shenyang Nanhua company and Shenyang land trading center (since Shenyang land trading center has repeatedly agreed to return all the paid land funds verbally, there is no dispute between the two parties for the time being, and the plaintiff has no claim for the return of the contract funds, but reserves the right of recourse); 3、 It was decided that Huanggu District Urban Construction Bureau should pay Nanhua land company the actual loss of 1401821 yuan caused by the failure to perform the investment agreement due to the violation of the investment agreement; The government of Huanggu District shall be jointly and severally liable for the loss; 4、 It is decided that Shenyang land trading center shall pay Shenyang Nanhua company a total of 190021471.76 yuan in actual losses and expected interest losses caused by violation of the transaction confirmation. The interest loss of the paid contract price of 235 million yuan is calculated according to the loan interest rate of the people's Bank of China for the same period to the date of return. As of August 31, 2015, the interest loss is 83655886.76 yuan; The loss of land appreciation is 100 million yuan (the loss should be 386.17 million yuan. The plaintiff only claims 100 million yuan in this lawsuit, and reserves the right to sue for the remaining 286.17 million yuan). Other losses are 6365585 yuan; 5、 It is decided that the municipal land and Resources Bureau shall be jointly and severally liable for the fourth claim; 6、 The district government shall be jointly and severally liable for the fourth claim; 7、 It was decided that the Municipal Finance Bureau should bear joint and several liability for the corresponding interest loss of 47.39 million yuan in the total amount of land claimed in the fourth lawsuit. After that, the higher people's Court of Liaoning Province ruled that: 1. The investment agreement and supplementary agreement signed by Nanhua land and Huanggu District Urban Construction Bureau were rescinded; 2、 Cancel the transaction confirmation signed by Shenyang Nanhua company and Shenyang land transaction center; 3、 Shenyang land trading center shall pay the interest of Shenyang Nanhua company within 10 days after the judgment takes effect, that is, the interest of the principal of 235362120 yuan (calculated from March 3, 2010 to the date of payment of the principal of 235362120 yuan, calculated according to the loan interest rate of the people's Bank of China for the same period); 4、 Shenyang land trading center shall, within 10 days after the judgment comes into effect, pay Shenyang Nanhua company 6365585 yuan of all expenses and losses recorded in the company's account for maintaining the normal operation of the company and the actual expenditure of the development and construction of the plot project from the establishment of the company in 2010 to the date of the lawsuit; 5、 Huanggu District Urban Construction Bureau shall be jointly and severally liable for the third and fourth judgments; 6、 Reject other claims of the plaintiff. If it fails to perform the above-mentioned obligation to pay money within the period specified in the judgment, it shall double the interest on the debt during the period of delay in performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China. The case acceptance fee was 998917 yuan, 50% of which was borne by Shenyang land trading center and Huanggu District Urban Construction Bureau.
After the judgment of the first trial, Shenyang land trading center and Huanggu District Urban Construction Bureau both filed an appeal, demanding that the original judgment be rescinded, the second original application be rejected or the case be sent back for retrial. After the hearing of the second circuit court of the Supreme People's court, the final judgment of this case was as follows: 1. The first, second, third, fifth and sixth items of the civil judgment (2015) Liao min Yi Chu Zi No. 00041 of Liaoning Provincial Higher People's court were upheld, That is, "I. cancel the investment agreement and supplementary agreement signed between Nanhua Real Estate Co., Ltd. and Shenyang Huanggu District Urban Construction Bureau; II. Cancel the confirmation of listing and transaction of plot 63, Ningshan middle road signed between Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. and Shenyang land transaction center" ； 3、 Shenyang land trading center shall pay the interest of Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. within 10 days after the judgment takes effect, that is, the interest of the principal of 235362120 yuan (calculated from March 3, 2010 to the date of payment of the principal of 235362120 yuan, calculated according to the loan interest rate of the people's Bank of China for the same period); 5、 Shenyang Huanggu District Urban Construction Bureau shall bear joint and several liability for the above three and four judgments; 6、 Reject other claims of the plaintiff "; 2、 Item 4 of the civil judgment of Liaoning Higher People's Court (2015) lmycz No. 00041 is changed to: Shenyang land trading center shall compensate Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. for the operating loss of 4026831.98 yuan within 10 days after the judgment takes effect.
[judgment result]: in this case, the final judgment of the Supreme People's court is: 1. The investment agreement and supplementary agreement signed by and between Nanhua land Co., Ltd. and Shenyang Huanggu District Urban Construction Bureau are rescinded; 2、 Cancel the transaction confirmation of No. 63, Ningshan Middle Road, signed by Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. and Shenyang land transaction center; 3、 Shenyang land trading center shall pay the interest of Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. within 10 days after the judgment takes effect, that is, the interest of the principal of 235362120 yuan (calculated from March 3, 2010 to the date of payment of the principal of 235362120 yuan, calculated according to the loan interest rate of the people's Bank of China for the same period); 4、 Shenyang Huanggu District Urban Construction Bureau shall bear joint and several liability for the above three and four judgments; 5、 Shenyang land trading center shall compensate Shenyang Nanhua Hongtai Real Estate Development Co., Ltd. for the operating loss of 4026831.98 yuan within 10 days after the judgment takes effect.
[reasons for adjudication]: the Supreme People's court believes that the focus of the dispute in this case is two: first, the determination of the liability for breach of contract in this case, that is, whether Shenyang land trading center and Huanggu District Urban Construction Bureau bear the liability for breach of contract; Second, the liability and amount of the operation loss claimed by Shenyang Nanhua company.
1、 On the determination of liability for breach of contract
On November 2, 2009, the investment agreement signed by Huanggu District Urban Construction Bureau and Nanhua company is the preliminary intention and framework agreement to be reached by both parties on the land involved in the development project. In this agreement, it is agreed that "when the land is delisted, Party B shall pay the down payment (including the bid security) of the land according to 20% of the total land payment in the transaction confirmation, and the rest shall be paid according to the demolition progress". According to the principle of contract relativity, the contents of the above agreement shall have binding force on Huanggu District Urban Construction Bureau and Nanhua land. After that, Nanhua land company established Shenyang Nanhua company, and Shenyang Nanhua company won the land involved in the case through participating in the land bidding process. On March 3, 2010, Shenyang land reserve Trading Center issued a transaction confirmation letter to Shenyang Nanhua company, confirming the location, area, price and payment method of the land acquired by Shenyang Nanhua company. The confirmation letter was sealed and confirmed by Shenyang land reserve Trading Center and Shenyang Nanhua company, so it has binding force on both parties. The letter of confirmation stipulates that "the bidder of the plot shall make a down payment of 20% of the total land transaction price on the date of transaction, and the remaining payment shall be paid in advance according to the progress of land demolition, and shall be fully paid within one year from the date of transaction of the plot". After Shenyang Nanhua company paid 20% of the land transaction price as agreed in the letter of confirmation, Shenyang land transaction center urged Shenyang Nanhua company to pay the remaining land price. Shenyang Nanhua company claimed that it had paid the down payment as agreed in the contract, but the land involved in the case did not start the demolition work and refused to pay the remaining land price in full, which caused a dispute between the two parties.
The Supreme Court held that, first of all, whether the Shenyang land trading center should bear the liability for breach of contract. According to the contract and the relevant evidence of this case, Shenyang Nanhua company paid 20% of the total land transaction price, i.e. 235362120 yuan, on the date of land transaction, which is in line with the investment agreement and transaction confirmation of both parties. Shenyang Nanhua company claims that the remaining payment shall be paid according to the demolition progress, which has the contract basis. However, after Shenyang Nanhua company paid the down payment for the land as agreed, Huanggu District government and relevant departments did not handle the demolition permit and did not start any other demolition work. In this case, Shenyang Nanhua company has the right to refuse to pay the remaining land price. As the counterpart of the contract, Shenyang land reserve Trading Center fails to provide the corresponding land as agreed in the contract, which constitutes a breach of contract for Shenyang Nanhua company. After Shenyang land reserve Trading Center is divided into Shenyang land reserve center and Shenyang land trading center, the relevant rights and obligations are inherited by Shenyang land trading center. Therefore, Shenyang land trading center shall bear the liability for breach of contract to Shenyang Nanhua company. Secondly, on the joint and several liability of Huanggu District Urban Construction Bureau. Although the Urban Construction Bureau of Huanggu District claims that it is not the contract counterpart of the transaction confirmation between Shenyang land trading center and Shenyang Nanhua company, but the party to the framework investment agreement, the investment agreement is the premise and basis of the transaction confirmation, and the investment and development relationship between the two parties obviously has the characteristics of attracting investment. As analyzed in the original judgment, The Urban Construction Bureau of Huanggu District and several other government departments have a high degree of correlation between rights and obligations. The Urban Construction Bureau of Huanggu District and Shenyang land transaction center can be summarized as one party of the contract, and both have the obligation to perform relevant acts according to the contract. In this case, the Urban Construction Bureau of Huanggu District is actually in the position of the demolisher. The investment agreement and the transaction confirmation failed to be performed in the end There is a direct relationship between the failure of the Urban Construction Bureau of Huanggu District to start the demolition in time. Therefore, the original judgment that the Urban Construction Bureau of Huanggu District shall bear joint and several liability for the debts of the land trading center is not improper in applying the law.
2、 On the assumption and amount determination of breach of contract losses
Article 97 of the contract law of the people's Republic of China stipulates that after the termination of the contract, the parties have the right to claim compensation for losses. The breaching party shall be liable for all losses suffered by the non breaching party due to breach of contract. In this case, according to the investment agreement signed between Huanggu District Urban Construction Bureau and Nanhua land, Huanggu District Urban Construction Bureau selected Nanhua land as the sole developer, and Nanhua land promised to register an independent real estate development company in Huanggu District, Shenyang City, Liaoning Province before bidding for the land use right. The business scope of Shenyang Nanhua company specially established by Nanhua real estate company is the development of the plot involved in the case and the sale of commercial houses. After the establishment of Shenyang Nanhua company, it has not carried out other businesses. Therefore, the normal operating expenses of Shenyang Nanhua company belong to the expenses incurred for performing the contract involved in the case and belong to the scope of direct losses. Shenyang land trading center, as the defaulting party, shall bear the liability for compensation.
On the determination of the amount of loss. In the second review, Shenyang Nanhua company provided the subsidiary ledger of the company to prove the operating expenses incurred by the company from 2010 to 2015, including 4 categories and 26 specific expenditures, namely: development indirect expenses of 851255.12 yuan, fixed assets of 3300 yuan, management expenses of 3195973.32 yuan, and financial expenses of 2298246.54 yuan, totaling 6345474.98 yuan. After investigation, the detailed ledger provided by Shenyang Nanhua company shows that the business entertainment expenses under the development indirect expenses are 14960.60 yuan, the business entertainment expenses under the management expenses are 2318643 yuan, and the business entertainment expenses under the management expenses exceed 1 / 3 of the company's operating expenses, which is obviously beyond the reasonable range. Moreover, the appellant holds an objection, and Shenyang Nanhua company cannot make a reasonable explanation, Therefore, the court deducted the amount of operation loss of Shenyang Nanhua company borne by Shenyang land trading center determined in the original judgment, that is, the amount of operation loss of Shenyang Nanhua company that Shenyang land trading center should compensate is 4026831.98 yuan.
In addition, Shenyang Nanhua company and Nanhua land company made seven claims when they filed a lawsuit. The first instance judgment only fully supported the first and second claims, partially supported the amount of loss in the fourth claim, and the other claims were rejected. In the case that Shenyang Nanhua company and Nanhua land company partially won and partially lost the lawsuit, The acceptance fee of the first instance case in the original judgment was borne by Shenyang land trading center and Huanggu District Urban Construction Bureau, which violated the principle of civil litigation that the litigation fee should be borne by the losing party, and this court adjusted it according to law.
[relevant provisions]:
Contract Law:
Article 94
[legal termination of contract] under any of the following circumstances, the parties may terminate the contract:
（1） Due to force majeure
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