[introduction to the lawyer in this case] Bao Tengfei, a lawyer and partner of Liaoning Tongfang law firm, graduated from the school of law of Peking University in 2000 with a bachelor's degree. Lawyer Bao Tengfei has legal service experience in the whole process of government office building construction. Good at legal counsel and litigation in the field of construction engineering. Familiar with and have the working experience in the disposal of non-performing assets of commercial banks, corporate mergers and acquisitions, restructuring of state-owned enterprises and due diligence of private fund managers.
[key points of judgment] although the term of the land use right of the project is 70 years as stated in the commercial housing sales contract signed by both parties, the term of the land use right of the plot where the house is actually obtained by the house buyer is 50 years. Since both parties have not agreed on the liability for breach of contract for the land use term in the contract, and according to the current laws and regulations of China, the land use right will be automatically renewed after the expiration of the term, and it is not clear whether to pay the fee. The economic loss of the house buyer is not clear and cannot be determined to occur. There is no factual and legal basis for requiring the developer to pay the economic loss.
[basic case] the term of the land use right of the project as specified in the commercial housing sales contract signed by both parties is 70 years, while the term of the land use right of the plot where the house is actually obtained by the house buyer is 50 years. Whether the developer should be liable for compensation. Therefore, the buyer of the house appealed to the court to confirm the developer's breach of contract and compensate the plaintiff for the economic loss of 97755.3 yuan.
[judgment result] the first instance rejected the claim of the house buyer, and the second instance upheld the original judgment.
[reasons for adjudication] according to paragraph 1 of Article 149 of the property law of the people's Republic of China, the term of the right to use the land for residential construction shall be automatically renewed. The two parties have not agreed on the liquidated damages for the land use term in the contract, and according to the current laws and regulations of China, the land use right will be automatically renewed after the expiration of the term. The policy on whether to pay the fee is not clear, so the plaintiff's economic loss is not clear and uncertain, and the evidence provided by the plaintiff is not sufficient to prove the objective existence of the loss and the parties have not agreed, The plaintiff's request for the defendant to pay the economic loss has no factual and legal basis, and the court of first instance did not support it. The second instance upheld the judgment of the first instance on the same ground.
[relevant provisions]
Article 107 of the contract law of the people's Republic of China states that "if a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses."
The first paragraph of Article 149 of the property law of the people's Republic of China states that "the right to use the land for residential construction shall be automatically renewed upon the expiration of the term, and the renewal of the right to use the land for non residential construction shall be handled in accordance with the provisions of the law".
[lawyer's opinion]
The reason for the wrong record of the land years in the contract of this case is the intersection of the developer's land acquisition and land planning and construction. The land occupied by the house involved in the case belongs to the phase I land of the project, while the house belongs to the phase II Planning of the project. The cross development of the bid sections led to the sales staff mistakenly writing the information of the phase II land use certificate into the commercial house purchase and sale contract of the house involved in the case which belongs to the phase II Planning and construction scope.
In this case, the purpose of the contract signed by the two parties is to buy and sell commercial houses, and the first "project construction basis" is to specify the conditions and relevant matters that must be met in the real estate transfer contract in accordance with the provisions of the urban real estate administration law of the people's Republic of China, only for the purpose of stating that the defendant has the conditions to sell commercial houses. Since the commercial housing sales contract signed by the two parties in this case is a real estate transfer contract rather than a land use right transfer contract, the service life of the land in the contract involved in this case is only the disclosure of the defendant according to the provisions, which has the elements of engaging in the commercial housing transfer. Therefore, it cannot be considered that the developer has breached the contract.
Although in some specific cases, the seller of commercial housing may deliberately misrepresent in the "project construction basis" to induce consumers to sign a contract or engage in other unfair competition, as for the duration of the right to use residential construction land, the law clearly stipulates that it will be automatically renewed after the expiration, even if there is a writing error in the contract, it is not enough to cause the buyer to make a wrong expression of intent, Or cause economic losses to the buyer. According to the theory of contract law, the liquidated damages are mainly supplemented and supplemented by compensation. The purpose of setting is to make up for the losses caused by the defaulting party's breach of contract to the observant party.
According to the provisions of Article 149 of the property law of the people's Republic of China, the reply of the general office of the Ministry of land and resources on properly handling the expiration of the right to use a small number of residential construction land, and the reply of Premier Li Keqiang to the reporters at the fifth session of the Twelfth National People's Congress on March 15, 2017, the right to use the land shall be automatically renewed after the expiration, and no renewal application is required and no fee is charged. Therefore, it will not cause any loss to the house used by the buyer. No loss has been caused to the buyer due to the developer's writing error. In addition, the developer made a written commitment to all the Buyers immediately after discovering the error, promising that the developer will bear the full compensation liability in case of any cost arising from the renewal of the land use right. Therefore, there is no factual and legal basis for the buyer of the house to claim for the loss liability.
In the trial of this case, the agents of the Central Plains and the defendant both tried to strengthen their own claims and arguments through a large number of effective judgment cases and documents, and constantly reminded the people's Court of the impact of this case as a group action case on the trial practice of the whole province and even the whole country. After the effective judgment of the case was made, it was repeatedly used as a typical case by judges at all levels as a material for external teaching.