[introduction to the lawyer of this case] Liu Hong is the founding partner and senior partner of Liaoning Tongfang law firm. He once served as a judge of the economic trial division of the Liaoning Provincial Higher People's court. He participated in the organization and research of some difficult economic dispute cases in the province and gave guidance to the economic trial of lower courts. He was in charge of the economic trial guidance of the intermediate courts in southern Liaoning (Dalian, Yingkou, Anshan and Liaoyang). In 1997, the case of whether non transferable bills of exchange can be pledged, which was tried by Liu Hong, was selected by the Supreme People's court.
[case details] in June 2010, a real estate company competed for the land use right covering an area of 765993 ㎡ according to law, and successively signed three state-owned construction land use right transfer contracts and relevant supplementary agreements with the land resources and Housing Bureau of a city. After the transfer contract was signed, the real estate company paid a deposit of US $100 million (equivalent to RMB 675477040.00) according to the contract, and made overall planning and design for the project, which was approved by relevant government departments. Subsequently, the real estate company made early investment and construction on the land delivered in advance (about 8.5% of the total area). However, within more than four years, the Bureau of land, resources and housing has not moved the residents and factories on the remaining land, nor has it delivered the remaining land according to the agreed net land standard. Therefore, the real estate company filed a lawsuit to the court, requesting the cancellation of the transfer contract and relevant supplementary agreements, requesting the land resources and housing bureau to return the deposit in double, pay the interest of the paid transfer price, and compensate the economic losses suffered by the real estate company, totaling 1511316012.17 yuan.
[judgment result] as the agent of the real estate company, the key points of this case are: first, whether the contract meets the conditions for dissolution; Second, US $100 million is the bidding deposit. Can it be recognized as the deposit under the contract; Third, since the real estate company has started construction on part of the delivered land, if the contract is terminated, whether the delivered land can be returned and whether the land resources and housing bureau should pay the real estate company the discount of the project under construction.
[lawyer's opinion] 1. The land, resources and Housing Bureau has breached the contract and shall bear the liability for breach of contract. The real estate company has the right to terminate the contract. The purpose of the transfer contract signed by the real estate company and the land, resources and housing bureau is to transfer the land use right of 765993 square meters and carry out the overall construction planning of the project according to this scale. However, the land, resources and housing bureau only delivers 8.5% of the total area to the real estate company, which makes the real estate company unable to carry out the overall development of the project according to the planned area approved by the government and unable to achieve the purpose of the contract, Moreover, although the real estate company has carried out development and construction (villa start-up area) on the 65152 ㎡ land that has been delivered, the villa start-up area simply cannot be developed, constructed and sold as a separate project, that is, the transfer contract does not meet the conditions for partial performance, and the behavior of the land resources and Housing Bureau has constituted a fundamental breach of contract. According to Article 94 (4) of the contract law, The real estate company has the legal right to cancel.
2. There is a deposit under the transfer contract, and the existence of the deposit cannot be denied because the deposit agreed in the contract is converted into the land transfer fee. According to the provisions of the judicial interpretation of the guarantee law, the nature of the deposit can be agreed by the parties, and it has multiple properties that are not mutually exclusive. In this case, the nature of the bidding deposit is a contractual deposit, and the nature of the performance deposit is a default deposit. The real estate company has actually paid the bidding deposit in full, and the bidding deposit is converted into a performance deposit according to the contract. Therefore, the performance deposit actually exists, and the deposit penalty shall be applied. The land resources and housing bureau shall pay a deposit of one time to the real estate company.
3. The interest is the legal fruits, so it shall be paid by the land resources and housing bureau to the real estate company when the contract is terminated, and the calculation start time shall be calculated from the date when the real estate company pays the money. If the interest is calculated from the date of signing the supplementary agreement in 2011, it is bound to cause the land resources and housing bureau to obtain the interest during the period from the delivery of US $100 million by the real estate company to the signing of the supplementary agreement in 2011. This does not fully restore the status before the signing of the contract in accordance with the law, but also allows the land resources and housing bureau to obtain the undue benefits after the breach of the contract, which is obviously unfair to the real estate company.
4. Upon termination of the contract, it shall be restored to the state before termination. Therefore, the delivered land shall be returned, and the project built by the real estate company on the delivered land shall not be demolished. Therefore, the land resources and housing bureau shall pay the project discount to the real estate company. The specific amount shall be subject to the appraisal conclusion. The amount of the deposit penalty and the claim for compensation may be accumulated.
The court finally decided to terminate the contract and relevant agreements, and the land resources and Housing Bureau returned the transfer fee and interest, and paid the real estate company the discount of the project under construction according to the appraisal amount, but did not support the request for double return of the deposit.