[introduction of the lawyer in this case] Zhang Hongchao, senior partner of Liaoning Tongfang law firm, second-class lawyer, deputy director of the ideological, moral and Cultural Construction Committee of Liaoning Lawyers Association, deputy director of the reward and Punishment Committee of Shenyang Lawyers Association, and director of Shenyang Lawyers Association, is qualified as an independent director of a listed company. Since practicing, Lawyer Zhang Hongchao has handled many difficult cases. He has won the title of the first honest lawyer model and excellent lawyer in Liaoning Province. He is good at company establishment, enterprise restructuring, merger and reorganization, capital operation, construction project legal affairs, real estate enterprise legal affairs, contract legal affairs, duty crime defense business and other businesses. In terms of civil and commercial affairs, he has served as the legal adviser of many large companies and enterprises in Shenyang for many years, providing in-depth services for the production, operation and stable development of the client, and establishing a good mutual trust relationship with the client and relevant management departments. The high-quality legal service has created value for the enterprise and won wide respect and praise for Lawyer Zhang.
[key points of judgment] if the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability. If the actor is presumed to be at fault according to the law, and the actor cannot prove that he is not at fault, he shall bear tort liability. It shall bear civil liabilities such as cessation of infringement, removal of obstruction, elimination of danger, return of property, restitution and compensation for losses. All parties shall perform the effective civil mediation agreement according to law. According to the mediation agreement, the owner has the right to require the infringer to perform the obligation of return according to the contents of the effective mediation agreement. The infringer shall cooperate with the owner to provide relevant procedures for house sales, stop the infringement and remove the obstacles.
[basic case] the Shenyang Railway Transportation Intermediate People's court made a civil mediation statement in September 2005. After the mediation organized by the court, the real estate company of the Railway Bureau, Liaoning Fengxiang Real Estate Development Co., Ltd. and Liaoning HENGWEI Real Estate Development Co., Ltd. reached an agreement on Mediation: 1. The capital invested by the real estate development company of Shenyang Railway Bureau into No. 16 building of Fengxiang new city plus interest of 17121119.68 yuan, Part of the commercial houses in building 16 of Fengxiang new city are used for repayment. The specific houses are: 1. Outlets: (1-2) one door, three doors and four doors on the first floor; 2. Residence: all on the sixth floor (room No. 1-6-1, 1-6-1, 2-6-1, 2-6-2, 2-6-3), all on the seventh floor (room No. 1-7-1, 1-7-1, 2-7-1, 2-7-2, 2-7-3), all on the eighth floor (room No. 1-8-1, 1-8-1, 2-8-1, 2-8-2, 2-8-3), and two households on the ninth floor (room No. 1-9-1, 1-9-2); 2、 Liaoning Fengxiang Real Estate Development Co., Ltd. is responsible for providing the Real Estate Development Corporation of Shenyang Railway Bureau with the relevant procedures for the sale of the returned houses, and the Real Estate Development Corporation of Shenyang Railway Bureau shall organize the sales of the returned houses by itself; 3、 All taxes arising from the sale of the returned houses shall be paid according to the provisions of the State Council. The expenses shall be borne by the Real Estate Development Corporation of Shenyang Railway Bureau. The property right certificate and land use certificate of the returned houses shall be handled by Liaoning Fengxiang Real Estate Development Co., Ltd. and coordinated by Liaoning HENGWEI Real Estate Development Co., Ltd; 4、 Liaoning HENGWEI Real Estate Development Co., Ltd. and Liaoning Fengxiang Real Estate Development Co., Ltd. should pay close attention to the finishing work of No. 16 building in Fengxiang new town and reach the occupancy level by the end of the year; The outlets and houses delivered for use to repay the Real Estate Development Corporation of Shenyang Railway Bureau are all clean houses. The mediation document was enforced by the Shenyang Railway Transportation Intermediate People's Court (2006) No. 8 enforcement case. During the enforcement process, Liaoning Fengxiang Real Estate Development Co., Ltd., Liaoning HENGWEI Real Estate Development Co., Ltd. and Railway Bureau real estate company made the handover document, which stated that according to the mediation document of Shenyang Railway Transportation Intermediate People's Court (2005) No. 8 mediation agreement, The following commercial houses are handed over to Shenyang Railway Real Estate Development Corporation. The specific houses are as follows: 1. One outlet 1049.39 square meters; 2、 The residential area is 2-9-2,79.14 square meters. Representatives of all parties sign for confirmation.
On July 18, 2006, the Shenyang real estate surveying and mapping brigade conducted surveying and mapping on the first door, No. 3, Mingbo Road, Hunnan New District, with a sales area of 1049.39 square meters. Then, Liaoning HENGWEI Real Estate Development Co., Ltd. occupied the house and reconstructed the house, changing the original 1049.39 square meters of outlets from one door to two, and changing the original one door a to one door. Meanwhile, on February 26, 2014, Liaoning HENGWEI Real Estate Development Co., Ltd. requested Shenyang real estate surveying and Mapping Center to conduct surveying and mapping for gate 1, No. 3, Mingbo Road, Hunnan New Area, with a sales area of 484.46 square meters. It is 565 square meters different from the area of one door confirmed in the original mediation agreement, and the property has been occupied so far, so it will not be returned.
[judgment result] on November 1, 2016, the people's Court of Hunnan District of Shenyang City made a judgment of first instance: it rejected the claim of Real Estate Development Corporation of Shenyang Railway Bureau. After the judgment was pronounced, the Real Estate Development Corporation of Shenyang Railway Bureau filed an appeal, holding that the facts determined by the court of first instance were wrong, the house in dispute in this case still exists, and the requirement to return the original property conforms to the objective reality.
The Shenyang intermediate people's court made a ruling on January 19, 2017, holding that the original court's rejection of the claim of Shenyang Railway Bureau Real Estate Development Corporation lacked factual and legal basis, and sent it back to the original court for retrial.
The people's Court of Hunnan District of Shenyang City made a judgment on December 15, 2017, which ruled that Liaoning HENGWEI Real Estate Development Co., Ltd. would stop the infringement within ten days after the judgment came into effect, vacate the house involved in the case, and return the house involved to the Real Estate Development Corporation of Shenyang Railway Bureau. After the judgment was pronounced, Liaoning HENGWEI Real Estate Development Co., Ltd. filed an appeal, claiming that the evidence provided by the Real Estate Development Corporation of Shenyang Railway Bureau could not prove the specific location of the house involved in the case, but should provide the specific location and axis of the house involved in the case and other relevant evidence to prove the property right, and that it had actually delivered the No. 1 gate of building 16 to the Real Estate Development Corporation of Shenyang Railway Bureau as stated in the mediation, without any infringement.
The Shenyang intermediate people's court made a final judgment on May 28, 2018, rejecting the appeal and maintaining the original judgment.
[reason for adjudication] the focus of the dispute in this case is whether or not the house in dispute in this case that the Real Estate Development Corporation of Shenyang Railway Bureau obtained the ownership according to the effective civil mediation document now exists. The court of first instance held that if the perpetrator infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability, and shall bear the civil liability of stopping the infringement, removing the obstruction, eliminating the danger, returning the property, and restoring the original state. HENGWEI company and Shengya company shall perform the effective mediation letter according to the law. According to the agreement, Shengya company shall provide relevant procedures for house sales, and HENGWEI company shall coordinate and cooperate. It can be seen that the relevant procedures of the disputed real estate involved in the mediation reached by the real estate company of the Railway Bureau, Hengwei company and Shengya company are in the hands of HENGWEI company and Shengya company, The survey and mapping again led to significant changes in the survey and mapping data of the disputed real estate in Shenyang real estate bureau, from the original 1049.39 square meters to 484.46 square meters. HENGWEI company and Shengya company failed to negotiate with the real estate company of the railway bureau to obtain the approval of the real estate company of the Railway Bureau. If there is any fault, it shall bear adverse legal consequences. The real estate company of the Railway Bureau has the right to require HENGWEI company and Shengya company to perform the obligation of return according to the effective mediation document. During the trial of the second instance, Hengwei company submitted a recording of the conversation to prove that the real estate company of the Railway Bureau occupied the house involved in the case. Due to the delay of the house viewing fee, the house viewer agreed to open a noodle shop for the house involved in the case. The real estate company of the railway bureau also submitted a witness statement to prove that gate 1, No. 3, Mingbo Road, Hunnan New District, was originally gate A. in 2014, Liaoning HENGWEI Real Estate Development Co., Ltd. changed gate a to gate a, and the house was still occupied by Li Weijian; A commercial housing sales contract dated June 29, 2007, to prove that the first floor of the axis position of the two doors surveyed in 2006 is da-3 axis and 1a-3a axis; The second layer is A-3 axis and 1a-3a axis; The third floor is da-3 axis, 1A axis - 3A axis and the area is 569 square meters, which is consistent with the mapping area in 2006; A rental agreement to prove that the house at door 2, No. 3, Mingbo Road (the original two doors in 2006) was rented out at that time; A drawing to prove that the railway court ruled that the horizontal axis of the first floor of the axis position handed over by HENGWEI company was 3, 6, 8, 10, 1 / 12 and 15, and the vertical axis was D, e, F, G and H; The horizontal axes of the second floor are 3, 6, 8, 10, 1 / 12 and 15, and the vertical axes are D, e, F, G and H. In addition, after the court hearing, the court of second instance obtained the attached drawings of the contract when the Shenyang real estate surveying and mapping brigade conducted surveying and mapping on No. 3, Mingbo Road, Hunnan New Area on July 18, 2006 at the surveying and Mapping Center of the real estate bureau, which indicated the specific location of the house involved in the case. To sum up, the court of second instance held that the relevant procedures of the disputed real estate involved in the mediation reached by the real estate company of the Railway Bureau, Hengwei company and Shengya company were all in the hands of HENGWEI company and Shengya company, and the re surveying and mapping led to a significant change in the data of the disputed real estate in Shenyang real estate bureau, from 1049.39 square meters to 484.46 square meters, HENGWEI company and Shengya company failed to negotiate with the real estate company of the railway bureau to obtain the approval of the real estate company of the Railway Bureau. The behavior was wrong, and the two should bear the corresponding legal consequences. The real estate company of the Railway Bureau has the right to require HENGWEI company and Shengya company to perform the obligation of return according to the effective mediation document. Therefore, it is not inappropriate for the real estate company of the railway bureau to request the original trial for support. The specific location of the property shall be subject to the attached drawings of the contract when the Shenyang real estate surveying and mapping brigade conducted surveying and mapping on gate 1, No. 3, Mingbo Road, Hunnan New Area on July 18, 2006. If the appellant's appeal is untenable, it shall be rejected.
[relevant law] Article 6 of the tort liability law of the people's Republic of China: if the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability. If the actor is presumed to be at fault according to the law, and the actor cannot prove that he is not at fault, he shall bear tort liability. Article 15: the main ways to bear tort liability are: (1) to stop the infringement; （2） Remove obstacles; （3） Eliminate hazards; （4） Return of property; （5） Restitution; （6） Compensation for losses; （7） Make an apology; （8） Eliminate influence and restore reputation. The above ways of assuming tort liability may be applied separately or in combination.
Article 37 of the property law: if the infringement of property rights causes damage to the obligee, the obligee may request compensation for the damage, and may also request to bear other civil liabilities. Article 28 of the property law: "where the establishment, change, transfer or extinction of the property right is caused by the legal documents of the people's court or arbitration commission or the expropriation decision of the people's government, it shall take effect when the legal documents or the expropriation decision of the people's government take effect. And the judicial interpretation of the property law (I) Article 7: the judgments, awards and mediation statements made by the people's court and the Arbitration Commission in the case of dividing the jointly owned real estate or movable property and taking effect in accordance with the law, as well as the written orders of the people's Court on the auction transaction and the written orders of the people's Court on the mortgage of debts in the course of the execution procedures, shall be recognized as the people's court that caused the establishment, change, transfer or elimination of the property right as mentioned in Article 28 of the property law Legal documents of the Arbitration Commission.
Paragraph 1 of Article 64 of the Civil Procedure Law of the people's Republic of China: the parties have the responsibility to provide evidence for their own claims.
[lawyer's opinion] in this case, the railway development company enjoys the ownership of the house in dispute. The railway development company and HENGWEI company agreed in the mediation document of Shenyang Railway Transportation Intermediate Court (2005) Shen tie min he Chu Zi No. 8 that they would offset the 1-2 floors of gate 1 of No. 16 network in Fengxiang new town (according to the mapping result of Shenyang real estate surveying and mapping team on July 18, 2006, it was 1049.39 square meters) to the railway development company to offset the investment funds of the railway development company. On May 8, 2007, Hengwei company and the third party issued the handover letter to the railway development company according to the civil ruling of Shenyang Railway Transportation Intermediate Court (2006) stzz No. 8. The handover letter specified that the area of one door on floor 1-2 of the housing network involved in the case was 1049.39 square meters, and handed over the housing involved to the railway development company. According to Article 28 of the property law, "if the property right is established, changed, transferred or eliminated due to the legal documents of the people's court or the arbitration commission or the collection decision of the people's government, it shall take effect when the legal documents or the collection decision of the people's government take effect." And Article 7 of the judicial interpretation (I) of the property law: "The judgments, awards and mediation statements made by the people's court and the Arbitration Commission in the case of dividing the jointly owned real estate or movable property and taking effect in accordance with the law, as well as the written orders of the people's Court on the auction transaction and the written orders of the people's court on the payment of debts with property in the course of the execution procedures, shall be recognized as the legal documents of the people's court and the arbitration commission that lead to the establishment, change, transfer or elimination of property rights as mentioned in Article 28 of the property law 。” The railway development company has enjoyed the ownership of the house involved through the effective mediation statement and the enforcement ruling. Therefore, the railway development company enjoys the ownership of the house in dispute according to law.
Based on its ownership of the house in dispute, the railway development company has the right to require HENGWEI company to eliminate the nuisance, stop the infringement and immediately vacate the house. According to Article 34 of the property law, "if the obligee has no right to occupy the immovable or movable property, the obligee may request the return of the original property." And Article 35: "where the property right is or may be prejudiced, the obligee may request to eliminate the prejudice or eliminate the danger." The railway development company enjoys the ownership of the house involved according to the effective mediation and ruling. Therefore, as the obligee, the railway development company has the right to require HENGWEI company to stop its current unauthorized occupation, eliminate the nuisance, and return the house involved to the railway development company.
HENGWEI company wantonly tampers with the house number and changes the house in dispute from the original No. 1 gate to the No. 2 gate, which can not change the fact that the house involved belongs to the railway development company, nor can it be considered that the house in dispute confirmed in the mediation document does not exist. According to the effective mediation and ruling, the railway development company enjoys the ownership of the house involved, i.e. the house is located at the 1ST-2ND floor, gate 1, No. 16 network of Fengxiang new city, and the ownership is 1049.39 square meters according to the surveying and mapping result of Shenyang real estate surveying and mapping brigade on July 18, 2006. Although HENGWEI wantonly tampered with the house number of the house involved, it could not change the actual existence of the house, nor could it affect the ownership of the house involved. The tampering behavior of HENGWEI company occurred after the area and location of the house involved were confirmed in the mediation document. Instead, it only changed one door a of the network into one, and changed the house in dispute into two. This behavior is a malicious illegal occupation, which seriously infringes the ownership and property rights of the railway development company. Moreover, when the Shenyang Railway Transportation Intermediate People's court made the mediation statement, the house was objective, and the area, specific location and house number of the house involved were also specified in the mediation statement. HENGWEI company also confirmed and delivered the house. The house specified in the mediation statement still exists objectively and has not been damaged or lost. It cannot be determined that the house involved does not exist because HENGWEI company tampered with the house number without authorization. Although HENGWEI company changed the house in dispute to gate 2 and changed the original gate a to gate 1, it could not require the railway development company to accept the current gate 1. Therefore, the behavior of HENGWEI company is an infringement of the legitimate rights and interests of China Railway Corporation, and it should bear the tort liability, stop the infringement, remove the obstacles, and return the house.