[introduction of the lawyer in this case] Gao Honggang, partner of Liaoning Tongfang law firm, mainly provides legal services and solutions for problems in the company's operation and management, financial risk prevention and control, business contract management, enterprise restructuring and M & A financing.
[main points of judgment] the court of first instance held that the plaintiff Yu Xuanhao paid 30000 yuan of group purchase fee to the defendant and 10000 yuan of deposit to the developer in order to enjoy the qualification of preferential purchase of the house, but did not actually buy the house due to the plaintiff's breach of contract. The original claim was that the defendant promised to return the group purchase fee if the purchase failed, but did not provide evidence to prove his claim, and he should bear the legal responsibility of proving that he could not. Therefore, the court of first instance did not support the plaintiff's claim that the defendant should return the group purchase fee and pay interest.
The court of second instance held that the group purchase fee was the commission paid by the developer to the defendant after the house was sold, recognized that the legal representative of the defendant admitted that the group purchase fee could be refunded in the recording evidence submitted by the plaintiff Yu Xuanhao in the first instance, and adopted the view of the plaintiff's agent according to the new evidence submitted by the plaintiff in the second instance to prove the current house price of the disputed house and the cross examination opinions of the defendant, It was found that although the plaintiff paid the group purchase fee, he did not enjoy the group purchase price.
Within 500 words, briefly state the main points of the judgment, and the more concise the better.
[basic case] in November 2017, the plaintiff got to know the legal representative of the defendant through the introduction of a friend, and paid the defendant a group purchase fee of 30000 yuan, which was used to enjoy preferential treatment when purchasing the commercial house located in the commercial building of Shenyang International Textile and clothing city. The defendant orally promised the plaintiff that if it did not buy, it could be returned to the plaintiff. After that, the plaintiff did not purchase the above-mentioned commercial house, and asked the defendant to refund the group purchase fee paid by him, but the defendant refused to return it.
[judgment result] the first instance decision rejected the original petition. The judgment of the second instance: the judgment of the first instance was revoked, and the defendant was ordered to return 30000 yuan of group purchase fee to the plaintiff.
[reasons for adjudication] first, according to the defendant's statement, it was determined that the group purchase fee was the commission paid by the developer to the defendant after the plaintiff purchased the house; 2、 In the call recording provided by the plaintiff, the legal representative of the defendant admitted that the plaintiff could refund the group purchase fee if he did not buy the house; 3、 According to the network screenshot of the current market price of the disputed house provided by the plaintiff and the defendant's cross examination opinions, it is determined that the plaintiff does not enjoy the group purchase discount.
[relevant law] item 2, paragraph 1, Article 170 of the Civil Procedure Law of the people's Republic of China: if the original judgment or ruling is wrong in finding facts or applying laws, the judgment or ruling shall be changed, revoked or changed according to law.
[lawyer's opinion] i. during the trial, the judge often ignores many key points that are beneficial to us. This requires us to refine these key points that are beneficial to us during the trial or even after the trial, and explain and emphasize them to the judge. In the first instance of this case, the judge did not face up to the telephone recording provided by the plaintiff with the legal representative of the defendant, and ignored the essence of the group purchase fee. In the second instance, the plaintiff's agent, when presenting and answering questions to the judge, focused on the above omissions of the first instance judge, so that the second instance judge found the defendant's statement favorable to us in the first instance trial transcript.
2、 Go all out to find evidence to support your opinion. In the absence of any evidence provided by the defendant, the court of first instance held that the defendant had provided the plaintiff with group purchase discount, which expanded the plaintiff's burden of proof. Although it is not the plaintiff's burden of proof, the plaintiff provided new evidence to prove the current house price in the second instance, which well supported the plaintiff's claim that the defendant did not provide group purchase discounts.