【Case replay:】：

1、 Delayed project payments: the company uses houses to offset debts

You Changye is the head of the construction team. In 2001, he contracted the project of Guangzhou Yinshan Construction and Development Co., Ltd. under the name of Guangzhou Huaying Construction Company. After the project was completed and settled, the development company still owes 4.74 million yuan in project payment. In order to achieve project payment compensation, You has signed a "Housing for Debt Contract" with Huaying Construction Company (as the second party) and Development Company (as the first party). The content is: The first party still owes the second party a project payment of 474210.33 yuan, and the first party agrees to use the first floor (shop) of two properties as a price to offset the debt (the contract indicates the location and area of the property, and the transaction price is 4731608 yuan). The first party agrees to sign a "Commercial Housing Sales Contract" with the owner designated by the second party, If Party B sells the property to a third party, Party A shall still assist in handling relevant procedures (including property acquisition, property ownership certificate, etc.), and the construction company has issued a power of attorney requesting that the above-mentioned property be confirmed under the name of the person in charge of its construction team, You, and be handled by You.

On October 8, 2003, You, as the buyer of the first party of the contract, signed two "Commercial Housing Sales Contracts" with the development company, which stipulated the area, amount, delivery conditions, and breach of contract responsibilities for the purchase of 01 and 02 berths, as well as decoration standards. The delivery date was December 31, 2004, which specifically stipulated that "each household can use independent water meters, electricity meters, and entering the property". Otherwise, the buyer has the right to refuse to take over the building and hand it over; The development company needs to present the property acceptance certificate to the buyer, otherwise the buyer has the right to refuse to accept the property. If the overdue delivery of the building exceeds 30 days, the house can be returned. If the buyer requests further performance, the seller shall pay a penalty of 0.05% per day of the already paid building price.

2、 The buyer of substandard houses sues the developer in the first instance and wins the lawsuit

On April 1, 2005, the development company issued a notice to the buyer, You, for the delivery and use of the store, requiring them to go to the management office to complete the store closing procedures on that day. But due to the lack of access to water and electricity, as well as the lack of a property qualification certificate, You refused to take over the building. On August 31, 2006, You brought a public certificate and evidence from the notary office of the city, and a lawsuit filed with the Baiyun District Court against the development company as the defendant, stating that the property in question did not meet the requirements for building delivery, and there was a notarized certificate proving that there were no independent water meters, electricity meters, or other wires or household water pipes installed. The defendant was required to deliver two sets of properties that passed the acceptance inspection by the development company; 2. Pay a penalty of 1544870.01 yuan for overdue delivery of the building, and compensate for the difference in area of 438877.25 yuan. The Baiyun District Court divided two cases based on two commercial housing sales contracts. After receiving a copy of the lawsuit, the development company handed over two property certificates that had already been obtained under the name of You and the issued real estate sales invoices to You. At the same time, it defended that the commercial housing was used to offset the project payment owed to the owner You Changye; Instead of the actual purchase and sale of commercial housing, it does not actually fulfill the delivery of the purchase price; It is also said that the contract represents the true intention of both parties. As the contract specifies that it is based on the current building and the area within the set, there is no issue of area difference. In addition, if the building has been notified to be closed, there is no liability for overdue breach of contract. And the adjacent tax bureau of the same building began paying water and electricity fees for office work in February 2004, requesting the rejection of all plaintiff's litigation requests. Evidence submitted: Planning acceptance certificate, water and electricity payment receipt from the tax bureau of the same building to support the defense.

You applied for property preservation in litigation and provided collateral for the two disputed properties.

After two trials in the first instance, it was found that the agreement was valid and the plaintiff should be supported in exercising their contractual rights. The defendant is in breach of contract, therefore, the judgment on berth 01 shall be made by the defendant from the effective date of the judgment; 1. Within 30 days, deliver the disputed property that meets the delivery and use conditions stipulated in the contract to the plaintiff; 2. Pay the plaintiff a penalty for overdue delivery of the building within ten days (starting from January 1, 2005, calculated and paid at 0.05% of the building price per day until the actual delivery date); 3. Within ten days, pay the plaintiff an area difference payment of 22796 yuan, etc. In the other case (Shop 02), except for the area difference that has not been determined, all other judgments are the same.

3、 Developers disagree with the appeal, second instance changes judgment, buyer loses

After the first instance judgment, the development company refused to accept the appeal and named You as the appellant, demanding that the facts be clarified and the judgment be changed in accordance with the law. When the second instance was held, the reason was added: the contract for the sale of commercial housing was based on the agreement signed between the appellant and Huaying Company that the owner of the involved store was Huaying Company. Transferring the property to the appellant's name was an invalid contract to avoid national taxes and harm national interests. Therefore, the appellant, as the person in charge of Huaying Company, was not allowed to embezzle the company's property, which met the prosecution standards stipulated in the Criminal Law, The contract between both parties may lead to the loss of state-owned assets, etc.

In the second instance, the presiding judge requested both parties to hand over and collect the property within a week in order to prevent further losses caused by the vacancy of the property. Therefore, the appellant's management office introduced the rental to Chen for use as a supermarket, and Yu and Chen signed a rental contract. After another mediation by the court, You provided a mediation plan. Due to inconsistency in the amount and inability to mediate, the second instance exercised the right of interpretation to the appellant during the second hearing: if the nature of the legal relationship claimed by the parties is inconsistent with the facts determined by the people's court, will the litigation request be changed? The development company replied that we should not bear the legal liability for breach of contract damages, and even if we do, we should only bear the responsibility from January 1, 2005 to April 1, 2005. Although the water and electricity have been opened before the notification, the lack of independent water meters does not affect the normal use of the appellant. The lack of installation of electricity meters did not cause actual losses to the appellant, and we request the court to change the ruling and reject it. Due to the unclear appeal request, we request that the respondent clarify the appeal request in writing. The appellant submitted a "Letter of Opinion" after the court hearing, stating that they insisted on their appeal reasons, ruled that the commercial housing sales contract was invalid, and insisted that they "will not bear a penny".

In the second instance, the appellant submitted a business registration document for Huaying Company, which stated that the investment amount was 1 million yuan, 90% of which belonged to a certain enterprise group limited company, and 900000 yuan. The enterprise type was (solely state-owned), and the remaining 10% was owned by a certain individual. To prove that you belong to a state-owned enterprise and that the two properties are state-owned assets. You believes that the evidence has passed the proof period and does not intend to cross examine it.

As a result, the second instance ruled on June 15, 2007, citing that You had not paid the consideration for the delivery of the building and that the contract did not represent the true intentions of both parties. The first instance judgment was revoked, and all of You's litigation claims were rejected, with You bearing all litigation costs and property preservation fees. The verdict in both cases is the same.

4、 The buyer is not satisfied and applies for a retrial by the Intermediate People's Court

You was not satisfied and submitted a retrial application to the Guangzhou Intermediate People's Court (Second Instance Court) in October 2007. In the trial, in addition to emphasizing that purchasing a house with engineering debt did not violate legal regulations, the respondent was also required to present a certificate of acceptance of the property by the development company. Under the order of the presiding judge, the respondent submitted a notice of fire inspection during the second hearing, which stated that the property had been accepted, On September 29, 2006; Also attached is another adjacent tax bureau decoration acceptance fire safety certificate.

5、 During the retrial period, both parties will appeal to the procuratorate

You appealed to the district procuratorate before applying for retrial and was accepted on August 13, 2007; During the retrial period of the Intermediate People's Court, the development company directly filed a protest with the Municipal Procuratorate on the grounds that You Changye was the person in charge of a state-owned enterprise and embezzled state-owned assets, which was accepted by the District Procuratorate on August 20, 2008. After Lawyer You presented the case and submitted the "Report on the Situation of Civil Appeal Cases" to the procuratorate, the procuratorial organs issued two "Termination of Examination Decision" to both parties on August 22 and August 26, 2008, citing that the case had already been filed for retrial by the Intermediate People's Court.

6、 During the retrial period of the Intermediate People's Court, the winning developer appealed to the Provincial High Court again

The development company filed an appeal to the Provincial High Court on June 18, 2008, before filing a protest by the district procuratorate, requesting: 1. to revoke the first and second instance judgments and render the contract invalid; 2. Refusing the lawsuit of Huiyou, believing that the commercial housing purchase and sale contract is a formality of the "Contract of Housing for Debt", covering up illegal facts in a legal form, and it is impossible for one house to be sold again and again; You embezzled company property.

At this point, it happened that the Civil Procedure Law had been amended: a retrial can be applied to the higher court.

7、 Reexamination and referral by the high court, with one hammer to determine the tone

Although You had a reasonable and evidence-based advantage in the retrial of the Intermediate People's Court, considering the difficulty of the Intermediate People's Court in correcting its own judgment, he resolutely decided to withdraw the lawsuit before the Intermediate People's Court's retrial decision. In October 2008, he filed an appeal with the Guangdong Provincial High People's Court, requesting the revocation of the second trial decision and continuing to request the High Court to support the plaintiff's lawsuit. The reason is:

1. The second instance wrongly determined that the consideration for the building had not been paid;

2. You is the legitimate owner of the project funds, and there is no issue of possession of state-owned assets;

3. The application of law in the second instance judgment is incorrect and exceeds the effective request of the appellant;

4. The second instance judgment was clearly biased and deviated from the direction of the trial, and another law was tried.

After the appeal was accepted by You to the High Court, he learned that the development company had already submitted a retrial application two months ago, so the Provincial High Court accepted it

After examination and approval, it was decided that both parties were applicants and on April 23, 2009, Guangzhou Intermediate People's Court was instructed to conduct a retrial. At this time, it had been two years since the final trial.

In the middle courtyard: turning the tide and buying people to turn defeat into victory

Since the dispute over the overdue delivery of the building in January 2005, this case has gone through a long and difficult period of trial, second instance, retrial and withdrawal by the Intermediate People's Court, retrial by the High Court, and order to return to the Intermediate People's Court for retrial. The parties involved have been exhausted. During this process, the case was ultimately lost by the Intermediate People's Court, and in the absence of a retrial by the Intermediate People's Court, the possibility of continued favoritism by the Intermediate People's Court was taken into consideration before applying for withdrawal and appealing to the High Court. Now, it has returned to the same Intermediate People's Court for retrial, with many uncertain risks and uncertain life and death. The parties involved in the case of 'over three' have completely lost confidence and even suspected that the lawyer's level is not high and intentionally gave up the lawsuit. They still do not issue a power of attorney to appear in court on the day before the trial, which is undoubtedly a real test for lawyers. At this point, lawyers should have the professional ethics of perseverance, daring to stand up for justice, and safeguarding the legitimate rights and interests of the parties. The key is to "lobby" the parties to have firm confidence, believe that the law is correct, evil is invincible, and explain the "interests" to the parties: in the case of both parties' applications for retrial being accepted, our failure to appear in court will be beneficial to the other party, and the other party will appeal for dismissal and revocation of the lawsuit All judgments in the second instance may receive support from the Intermediate People's Court for retrial, and You's property rights and interests will not be guaranteed. At that time, you will not be able to receive relief from other channels, and may even evolve into a "crime of embezzlement of state-owned assets", let alone a separate lawsuit for "engineering payment contract disputes". Under the repeated persuasion of the lawyer, You finally completed the authorization procedures for appearing in court, and the original lawyer was fully authorized to represent him. It was already over six o'clock the night before the trial. At this moment, the lawyer finally breathed a sigh of relief and immediately adjusted his thinking overnight based on the details such as the signing and completion settlement terms of the construction project contract provided by You. The next morning, he appeared in court to answer the lawsuit.

The main argument is: 1. It is a fact that the debt of the project payment is equal to the consideration of the building, and the matured debt belongs to You legally; The second instance made erroneous judgments based on erroneous identification;

2. Huaying Company is not a state-owned enterprise, and you are not the person in charge of a state-owned enterprise, and there is no problem of embezzlement of state-owned assets;

3. Both the first and second trials have identified the dispute as a commercial housing purchase and sale contract, and the contract is legal and valid, and should be fully fulfilled as the purpose;

4. The "Housing for Debt Contract" is only a means and another legal relationship, and should not slide to the trial of another legal relationship.

5. The development company has breached the contract, and this case is subject to the judicial interpretation of the Supreme Court on the trial of disputes over commercial housing sales contracts.

In the trial, the development company argued that the commercial housing purchase and sale contract cannot be a cause of action, it is only an authorized matter, so it should be refuted by the plaintiff.

The buyer, Fang Zeyi, is strict in his words:

1. The mortgage contract and the commercial housing purchase and sale contract are two different legal relationships, with different contract subjects. The signing of the latter has replaced the former.

2. From the perspective of contract law, the transfer of contractual rights is also established.

3. The use of engineering debt to offset the purchase price is in accordance with the contract agreement and does not violate legal prohibitions, let alone the issue of not paying the purchase price, and accurate calculation basis is attached.

4. The commercial housing sales contract is legal and valid, and the transaction safety of the contract should be maintained. The defaulting party should bear the responsibility for breach of contract.

5. Youmou's demand is appropriate, and the development company should be responsible for breach of contract for overdue and unqualified delivery of the building. Contract Law stipulates that if there is an agreement, it shall be followed. And this agreement does not exceed the provisions of laws and regulations.

After deliberation by the Intermediate People's Court and discussion by the Intermediate People's Court Judicial Committee, this retrial agreed with the opinion of lawyer You on the establishment of the transfer of creditor's rights and debts. However, interest was used instead of liquidated damages, and only the development company was judged to pay bank overdue interest to You based on the total property price from January 1, 2005 to September 29, 2009. The area difference was not supported.

In the High Court: Taking advantage of the victory to pursue and seek trial, changing the verdict, and expanding the results

Although you have partially won the retrial, you are still dissatisfied with the interest only and the area difference not included.

According to the judgment of the Intermediate Court's retrial, it is determined that:

1. The "Housing for Debt Contract" between the development company and Huaying Company, as well as the "Commercial Housing Purchase and Sale Contract" between You and the development company, are both legal and valid contracts. You obtained a creditor's right against the development company based on his transfer from Huaying Company, which complies with legal provisions. In the original trial, it was inappropriate to dismiss the lawsuit request on the grounds that You did not pay the housing consideration to the development company;

2. The basis for signing a commercial housing purchase and sale contract is the creditor's rights and debts set forth in the "Contract for offsetting debts with houses". The late delivery penalty in the "Commercial Housing Purchase and Sale Contract" increases the obligations and responsibilities of the development company, expands the scope of Youmou's rights, and therefore, the "Commercial Housing Purchase and Sale Contract" cannot be equivalent to a general commercial housing purchase and sale contract. The content of the liability for late delivery of the building in the retrial will not be recognized, It should be treated as interest compensation according to general creditor's rights and debts;

3. Due to the agreement in the contract that the total area error between the two units is within 0.6% based on the building area inside the unit, no compensation will be made. Therefore, the difference in area between the two units and other litigation claims will be rejected.

The litigation acceptance fee and litigation preservation fee shall be borne by You for 2/3, and the development company shall be responsible for 1/3.

The acting lawyer believes that the engineering payment debt of You is a matured debt, which is considered as cash consideration. Therefore, it is correct for the Intermediate People's Court to confirm the two contracts and correct the unpaid building payment consideration determined in the original trial. However, it is still unclear how to distinguish the two legal relationships. After the debt relationship was established, You was willing to use legal debt to offset two sets of properties in the development company and signed two commercial housing sales contracts, Due to the existence of various clauses, both parties voluntarily sign on the principle of equivalence and compensation. The latter contract replaces the former contract and should be fully fulfilled. It belongs to the general "Commercial Housing Sales Contract" and cannot be discounted by offsetting the purchase of a house with debt.

2. The retrial verdict, as it did not exceed the scope of the creditor's rights circle, only ruled that interest could not be paid as liquidated damages. This case has already been classified as a dispute over the purchase and sale contract of commercial housing, so this judgment is incorrect.

3. If two properties are separated by the court, compensation for the difference between the interior area and the building area should be calculated separately.

4. The retrial has changed the determination of the facts, and the core of the verdict is that the consideration for the building has been paid. Therefore, bank interest cannot be used as a penalty for breach of contract as stipulated in the contract.

Whether the two cases can be recognized as general commercial housing sales contracts is crucial. You agrees that the lawyer will continue to file an appeal to the Guangdong Provincial High People's Court and accept the case for filing.

On July 15, 2011, the Higher People's Court of Guangdong Province held a court hearing. After intense debate between both parties, it was ultimately determined that it was a general commercial housing purchase and sale contract, correcting the second instance's determination that it was not a true "commercial housing purchase and sale contract" and the court's retrial that it could not be equated with a general "commercial housing purchase and sale contract". Therefore, a judgment was made based on the "Civil Judgments" (2011) Yue Gao Fa Min Yi Ti Zi No. 338 and No. 339: to revoke the first The judgment of the second instance and the retrial of the Intermediate People's Court has been revised: the development company shall pay a penalty of 0.05% per day of the building price as stipulated in the contract, and compensate for the difference in the area of the 01 # building.

The verdict of the seventh instance mystery case has been changed, and the seal of justice has been signed by Shen Zhang

The two ordinary real estate dispute cases have gone through seven trials and finally settled, ending the seven year long lawsuit. After winning the first trial and being rejected in the second trial, You applied for a retrial by the Intermediate People's Court and withdrew the lawsuit during the trial. Both parties applied for a protest by the Procuratorate and then applied for a retrial by the High Court. The high court designated the middle court for retrial and changed the ruling to pay interest. You appealed again, but the high court decided to bring the case up for trial and made the final judgment, which met the requirements of the client.

The significance of winning this case lies in testing whether as a lawyer representing the case, one has the spirit of being straightforward, selfless, and fearless, and dares to fight for justice. In those difficult days, on the eve of the second trial, when you lost all the cases and the development company still appealed, and the high court appointed the middle court for retrial, the parties had completely lost confidence. They believed that the lawsuit was purely a matter of "relationship" and were preparing to give up the lawsuit. It was the guidance of the lawyer who convinced the parties to issue a power of attorney to appear in court before the trial, in order to turn the tables and win.

After the retrial of the judgment of the Intermediate People's Court, on the one hand, You applied for and executed interest, realizing partial rights, and on the other hand, he appealed to the Provincial High Court. After being brought up for trial, the lawyer carefully responded to the three controversial focuses summarized by the High Court, namely "You Changran's legal status in this case," "whether there is an area difference in the property involved," and "whether compensation should be needed," and provided detailed theoretical discussions, We also promptly obtained a reply from the Guangzhou Housing Management Bureau regarding area compensation and the Provincial Construction Department regarding "passing the acceptance inspection" before the trial, which received support from the Provincial High Court. After the trial, we also submitted the "Agency Opinions on Legal Relations and Breach of Contract Liability in this Case". Therefore, the high court ultimately adopted the lawyer's opinion and revoked the second instance judgment and original retrial judgment of the Guangzhou Intermediate People's Court. It believed that it should be no different from the "general commercial housing sales contract", and decided to pay liquidated damages and compensate for the difference in area according to the contract agreement.

After the judgments in these two cases came into effect on January 9, 2012, the executed party refused to fulfill the obligations determined in the judgments. The lawyer provided clues to the property of the executed party and applied to the court for compulsory execution, and received an additional 800000 yuan execution return check for the parties involved. At this point, the litigation of the two and seven trials has been fully concluded and the case has been executed and closed. In seven years, the lawyer has written no less than a hundred documents, reaching hundreds of thousands of words, but what remains for us is a deep reflection.

【Lawyer comments:】：

1. The two cases were brought up for trial by the High Court and ultimately determined to be a general "Contract for the Sale and Purchase of Commercial Housing", based on which the judgment was completely correct. The project payment is a matured debt, so purchasing a house with the project payment should be considered as purchasing a house with cash, therefore it should be considered that the purchase price has been paid. The post contract has replaced the previous contract.

2. However, the penalty for late delivery of the property by the developer was deemed inadequate from January 1, 2005 to September 29, 2006 (i.e. the date of issuance of the fire acceptance certificate as the actual delivery date). After the cancellation of the "comprehensive acceptance", the delivery of commercial housing in Guangzhou still requires qualified signatures from departments such as fire protection, planning, supervision, and civil air defense, as well as an acceptance record form and permanent resident water and electricity, There are "three certificates and one book" such as the quality certificate of commercial housing. In this case, it is appropriate to use the rental date of the property (i.e. the date on which you collect rent as the closing date) as the deadline for liquidated damages.

3. The developer's penalty for breach of contract was not paid on September 29, 2006, and there is still nearly 5 years left from the effective date of the final judgment until it is fully executed. During this period, the penalty should be used as the principal and interest should be calculated as compensation (this is not compound interest). Moreover, there is no judgment in the first instance judgment, retrial judgment, or trial judgment stating that "if the obligation to pay money is not fulfilled within the period specified in this judgment, the interest during the delayed performance period shall be doubled in accordance with Article 253 of the Civil Procedure Law." Therefore, it has no deterrent effect on the person subjected to execution. The longer the application for execution is made, the greater the losses suffered by the creditor.