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Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province v. Zhejiang Shunyi Real Estate Development Co., Ltd. (A Case about Disputes over a Contract for Joint Development of Real Estate)
浙江省乐清市乐城镇石马村村民委员会与浙江顺益房地产开发有限公司合作开发房地产合同纠纷案
【法宝引证码】

Villagers’ Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province v. Zhejiang Shunyi Real Estate Development Co., Ltd. (A Case about Disputes over a Contract for Joint Development of Real Estate)
(A Case about Disputes over a Contract for Joint Development of Real Estate)
浙江省乐清市乐城镇石马村村民委员会与浙江顺益房地产开发有限公司合作开发房地产合同纠纷案

Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province v. Zhejiang Shunyi Real Estate Development Co., Ltd.
(A Case about Disputes over a Contract for Joint Development of Real Estate)

 

浙江省乐清市乐城镇石马村村民委员会与浙江顺益房地产开发有限公司合作开发房地产合同纠纷案

 【裁判摘要】
 根据《中华人民共和国村民委员会组织法》第十八条、第十九条的规定,村民会议由村民委员会召集,对于涉及村民利益的事项和村民会议认为应当由村民会议讨论决定的涉及村民利益的其他事项,村民委员会必须提请村民会议讨论决定后方可办理。村民委员会经依法召集村民会议讨论决定后与他人订立的协议,应当认定为合法有效。
Supreme People's Court 最高人民法院
Civil Judgment 民事判决书
No. 59 [2006] Civil Division I, Final (2006)民一终字第59号
BASIC FACTS 
Appellant (plaintiff in original trial): Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province, residing at North Shima Village, Yuecheng Town, Yueqing City, Zhejiang Province. 上诉人(原审原告):浙江省乐清市乐成镇石马北村村民委员会,住所地:浙江省乐清市乐成镇石马北村。
Legal Representative: Li Longkang, Director of this Committee. 法定代表人:李龙康,村委会主任。
Attorney: Chen Xu, lawyer of Beijing Longan Law Firm. 委托代理人:陈旭,北京市隆安律师事务所律师。
Attorney: Zhao Hongshi, lawyer of Beijing Longan Law Firm. 委托代理人:赵洪石,北京市隆安律师事务所律师。
Appellee (defendant in original trial): Zhejiang Shunyi Real Estate Development Co., Ltd, residing at Building 1, Lane 283, East Wansong Road, Anyang Town, Ruian City, Zhejiang Province. 被上诉人(原审被告):浙江顺益房地产开发有限公司,住所地:浙江省瑞安市安阳镇万松东路283弄1幢。
Legal Representative: Yu Heping, Chairman of the Board of Directors. 法定代表人:余和平,董事长。
Attorney: Liu Xinwen, lawyer of Beijing Guangzhu Law Firm. 委托代理人:刘心稳,北京市广住律师事务所律师。
Attorney: Xu Bo, lawyer of Beijing Guangzhu Law Firm. 委托代理人:徐波,北京市广住律师事务所律师。
For a case of disputes over a contract for joint development of real estate between the appellant, Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province (“Villagers' Committee”) and the appellee, Zhejiang Shunyi Real Estate Development Co., Ltd. (“Shunyi Company”), the Higher People's Court of Zhejiang Province rendered a civil judgment (No.7 [2005] Civil Division I, First Instance, Zhejiang) on May 18, 2006. Villagers' Committee appealed this judgment to this Court. This Court formed a collegial panel pursuant to law, and held a hearing of this case on November 8, 2006. Chen Xu and Zhao Hongshi, attorneys for the Villagers' Committee, and Shunyi Company's legal representative Yu Heping and attorney Liu Xinwen appeared in court. So far, the trial of this case has been concluded. 上诉人浙江省乐清市乐成镇石马北村村民委员会(以下简称村委会)与被上诉人浙江顺益房地产开发有限公司(以下简称顺益公司)合作开发房地产合同纠纷一案,浙江省高级人民法院于2006年5月18日作出(2005)浙民一初字第7号民事判决。村委会不服该判决,向本院提起上诉。本院依法组成合议庭,于2006年11月8日开庭审理了本案。村委会的委托代理人陈旭、赵洪石,顺益公司的法定代表人余和平,委托代理人刘心稳到庭参加诉讼。本案现已审理终结。
PROCEDURAL POSTURE 
Through trial, the court of first instance found that: in January 2003, Yueqing Municipal Land and Resource Bureau requisitioned 700 mu of land collectively owned by Villagers' Committee, and returned 70 mu of the land to Villagers' Committee including Lot C-c41 at issue between both parties (hereinafter referred to as “Lot 7”) as land reserved for Villagers' Committee to make development and operation, run enterprises and construct residential areas for villagers. After the land was requisitioned, the rural land operation right contractors strongly demanded that land compensations be fully made up at the rate of 300,000 yuan per mu. The Villagers' Committee, after consulting with villager representatives, decided to develop Lot 7 to solve the problem of compensations to rural land operation right contractors. Several rounds of negotiations were conducted between the Villagers' Committee and Ruian Huitong Real Estate Development Co., Ltd. (hereinafter referred to as “Huitong Company”) over the development of the lot. After discussion at a Meeting of Villager Representatives of Villagers' Committee, Villagers' Committee entered into three agreements with Huitong Company on August 30, September 9 and October 16, 2003 respectively. Under the agreement dated August 30, in respect of the on-exchange assignment of Lot 7 (approximately 12.27 mu, see the illustration attached hereto), both parties agreed that: “1. A net assignment price of 50 million yuan shall be ensured for Villagers' Committee, i.e. Huitong Company shall pay Villagers' Committee 50 million yuan without regard to the wining price of Huitong Company for the land. The rights and obligations arising from policies and other provisions as well as changes thereof or other factors concerning this lot shall have nothing to do with Villagers' Committee. 2. Where this lot is acquired by a company other than Huitong Company through on-exchange assignment, if Villagers' Committee receives a net payment of less than 50 million yuan, Huitong Company shall make up the deficit; or if Villagers' Committee receives a net payment of more than 50 million yuan, the surplus shall be equally shared by both sides. 3. After the signing of this Agreement, Huitong Company shall pay a deposit of 30 million yuan (including 7 million yuan already paid) to Villagers' Committee before September 10, 2003. Any overpayment shall be refunded to or any deficit shall be made up by Huitong Company after the end of the on-exchange assignment. Huitong Company undertakes to complete the land assignment within about 6 months after this Agreement is executed. 4. This Agreement shall be made in duplicate, and each party shall hold one.” Under the agreement dated September 9, Villagers' Committee represented that it had a legitimate right to use land Lot 7, the area which was approximately 12.27 mu, and it was resolved at the Meeting of Villager Representatives to jointly develop the land with Huitong Company. To this end, both parties agreed that: “1. Villagers' Committee shall provide the aforesaid land use right, while Huitong Company shall mainly provide the fund, technology, management, operation and other resources. Both parties shall jointly develop the foregoing land, and share the proceeds therefrom in a prescribed proportion. 2. To show its sincerity of cooperation, Huitong Company shall prepay 30 million yuan to Villagers' Committee for the relevant front-end expenses for cooperation. 3. Huitong Company shall, from this day, forthwith assign and organize its staff to perform survey, measurement and design of this land, complete the relevant operating and technical data and drawings, and make necessary plans and advertising to raise the commercial value of the land. 4. Specific matters related to cooperation shall be discussed separately in detail. Neither party shall suspend cooperation before a detailed agreement is reached.” The Agreement dated October 16, 2003 provided that: “Villagers' Committee has a land lot returned by the state after being requisitioned, which is Lot 7 with an area of about 12.27 mu; Villagers' Committee represents that it has the legitimate right to use this land; after a series of Meetings of Villager Representatives convened by Villagers' Committee, it is resolved that the land will be jointly developed with Huitong Company; for this purpose, Huitong Company has paid 30 million yuan to Villagers' Committee, assigned personnel to handle the related work such as consulting, designing, survey and planning, basically completed all necessary work before land development, which has increased the land's value greatly. Now that this land must be subject to on-exchange assignment according to the requirements of the competent land authority of Yueqing City, both parties must renegotiate about the cooperation affairs. Upon a resolution at the Meeting of Villager Representatives, Villagers' Committee reached a new agreement with Huitong Company as follows: 1. To continue the cooperation between both sides, Huitong Company shall attend the bidding for the above land to be held by Yueqing City's land administration authority. If Huitong Company wins the right to use the land, in view of the appreciation of the land as a result of the human, financial and other resources put in by Huitong Company, both parties agree that: regardless of the amount of land assignment proceeds refunded by the competent land authority to Villagers' Committee after the on-exchange assignment of the land, the net gain of Villagers' Committee shall be 50 million yuan, and the surplus, together with 30 million yuan that Huitong Company had prepaid to Villagers' Committee, shall be refunded to Huitong Company as benefits for its input and efforts during previous cooperation. The refund shall be made within 7 days after Villagers' Committee receives the land assignment proceeds from the competent land authority; otherwise, a daily default penalty at a rate of 0.1% shall be imposed. Meanwhile, if Huitong Company has difficulty in paying the land assignment amount to the competent land authority, it may request Villagers' Committee to refund the prepaid 30 million yuan, and Villagers' Committee shall provide support. 2. If the right to use the above land is acquired by an entity other than Huitong Company through on-exchange assignment, Villagers' Committee shall refund the 30 million yuan to Huitong Company. If Yueqing City's land administration authority returns an amount of more than 50 million yuan to Villagers' Committee for the land assignment, the surplus shall be treated as profits from their front-end cooperation, and be shared equally by both parties. Subject to the time limit and default clause under paragraph 1, Villagers' Committee shall pay half of the profits to Huitong Company. 3. Huitong Company unconditionally undertakes that: since Huitong Company has promised that the total land value will be up to 50 million yuan after designing, planning and joint development, which is a prerequisite for Villagers' Committee consent to cooperation, if the land administration authority's refund to Villagers' Committee is less than 50 million yuan, Huitong Company shall make up the deficit to keep its promise. Otherwise, it shall be subject to a default penalty of 30 million yuan. 4. All agreements previously reached by both parties orally or in writing shall be superseded by this Agreement. 5. Under whatever circumstances, the above agreement of both parties on the determination of amount of benefits shall be irrevocably binding upon both sides. If the clauses of this Agreement are held void for any reason, the relevant amount in the clauses shall translate into compensation in the same amount.” 一审法院经审理查明:2003年1月,村委会集体所有的土地700余亩被乐清市国土资源局征用,乐清市国土资源局返还村委会留用地指标70亩,其中包括双方讼争的C-c41地块(以下简称7号地块),作为村委会从事开发经营、兴办企业及村民住宅用地。由于土地被征用后,土地承包户强烈要求补足每亩30万元的补偿款,故村委会经村民代表会议讨论,决定开发7号地块,以解决土地承包户的补偿款问题。村委会与瑞安市汇通房地产开发有限公司 (以下简称汇通公司)多次协商开发该地块。经村委会村民代表会议讨论后,村委会与汇通公司先后于2003年8月30日、9月9日、10月16日签订了三份协议书。其中8月30日的协议书载明,双方就7号地块(约12.27亩,以附图为准)挂牌出让有关问题达成如下协议:1.确保村委会该地块土地出让净值5000万元,即无论汇通公司以任何价格取得该地,均应净付给村委会 5000万元。涉及该地块的政策等规定及政策或其他一切因素的变化而产生的任何权利与义务均与村委会无关。2.若挂牌出让时其他公司取得该地块,村委会净得出让金少于5000万元,不足部分由汇通公司补足;村委会净得出让金多于5000万元,多余部分双方各半分成。3.本协议签订后,汇通公司于2003年9月10日前付给村委会保证金3000万元(包括已收700万元),挂牌结束后多退少补。汇通公司承诺本协议签订后约6个月完成该地块出让。4.本协议双方各执一份为凭。9月9日的协议书载明,村委会承诺拥有7号地块合法使用权,面积约为12.27亩,经村民代表大会决议,决定与汇通公司合作开发。为此,双方就相关事宜形成协议如下:1.村委会提供上述土地使用权,汇通公司提供资金、技术、管理经营资源等为主进行开发事宜,双方共同开发上述土地,然后按约定比例分成。2.为表示合作诚意,汇通公司先行支付 3000万元前期资金到村委会账户,用于处理前期合作的相关费用等。3.汇通公司即日起抽调组织人员,对土地进行勘察、测量、设计,完成相关经营技术数据和图纸,并进行必要的策划和广告,以提升该地块的商业价值。4.合作的相关详细事宜,另行协商。在详细协议达成前,双方合作事宜必须不停止执行。2003年10月16日的协议书载明,村委会拥有一块被国家征用的返回地,面积约为12.27亩,规划编号为7号地块。对该地块,村委会承诺持有合法使用权。村委会经多次召开村民代表大会决议,决定与汇通公司共同合作开发该地块。为此,汇通公司支付村委会3000万元,同时,抽调人员进行合作开发的咨询、设计、勘察、策划等工作,基本完成开发实施前的所有工作,使该地块价值得以大幅度提升。现村委会提出,该地块按乐清市土地主管机关要求,必须“挂牌”出让,由此,必须对双方合作事宜重新进行协商。村委会经村民代表大会决议后,重新与汇通公司达成如下协议:1.为了使双方合作事务继续下去,汇通公司参与乐清市土地主管机关就上述地块挂牌出让的竞投。如由汇通公司取得该地块权属,鉴于双方合作前汇通公司投入人、财等使地价上升等因素,双方约定:不论土地主管机关挂牌出让后返给村委会多少数额的土地出让款项,村委会净得额为5000万元,多余部分作为汇通公司此前合作过程的投入和努力的受益分成,此款连同汇通公司已付村委会的3000万元,由村委会一并返回给汇通公司。返回时间为村委会收到土地主管机关出让款项的七天内,否则,按日万分之十支付违约金。同时,汇通公司如支付土地主管机关出让款资金紧张,则可以提前要求村委会返回原所交的3000万元,村委会应予支持。2.如挂牌出让由其他单位取得上述地块权属,则村委会返还汇通公司已投入支付的3000万元。同时,乐清市土地主管机关返回村委会的土地出让款额超过5000万元的,超出部分属双方前期合作的收益,双方各半分享,村委会应支付汇通公司享有的一半份额,支付时间及违约的条款同于第一条。3.汇通公司五条件保证,鉴于汇通公司曾承诺经设计策划并进行合作开发的土地总地价将达到5000万元,而此承诺作为村委会同意合作的前提,因此,如土地主管机关返回村委会款项少于5000万元,则汇通公司保证补足,兑现承诺。否则承担违约金3000万元。4.协议达成前的双方所作口头、书面协议均作废,以本协议为准。5.不论何种情形出现,双方就上述利益数额确定方案,对双方具有不可撤销的效力,如协议条款因故无效,则条款的有关数额转为同额赔偿款。
After the signing of this Agreement, Huitong Company paid Villagers' Committee a total of 30 million yuan and carried out the front-end work for the development of the land, such as designing, measurements and fund raising, as agreed upon by both sides. 协议书签订后,汇通公司根据双方的约定先后支付给村委会3000万元,并为该地块的开发进行了前期设计、测量、资金筹集等工作。
On November 27, 2003, Huitong Company changed its name into Shunyi Company. 2003年11月27日,汇通公司更名为顺益公司。
On November 5, 2003, Villagers' Committee submitted a report to Yueqing Municipal Land and Resources Bureau, applying for the on-exchange assignment of Lot 7. On January 22, 2004, Yueqing Municipal Land and Resources Bureau invited bids for the land use right to Lot 7. Shunyi Company won the bid at a price of 156.5 million yuan. On February 27, 2004, Shunyi Company signed a Contract on Assignment of State-Owned Land Use Right with Yueqing Municipal Land and Resources Bureau. From March 8 to May 12, 2004, Shunyi Company paid off the land assignment amount of 156.5 million yuan to Yueqing Municipal Land and Resources Bureau in five installments. According to its agreement with Shunyi Company, Villagers' Committee transferred 82.4 million yuan of it to Shunyi Company. 2003年11月5日,村委会向乐清市国土资源局呈送报告,要求对7号地块予以挂牌出让。2004年1月22日,乐清市国土资源局对7号地块使用权进行招标出让,后由顺益公司以1.565亿元的价格竞得。2004年2月27日,顺益公司与乐清市国土资源局签订了《国有土地使用权出让合同》。2004年3月8日至2004年5月12日,顺益公司分五次向乐清市国土资源局交清了1.565亿元土地出让金。村委会根据其与顺益公司的约定,将其中的8240万元转给了顺益公司。
On July 11, 2005, Villagers' Committee filed a lawsuit with the Higher People's Court of Zhejiang Province against Shunyi Company, requesting confirmation of the invalidity of the agreement signed by the two parties on October 16, 2003 as well as refund of 52.4 million yuan to Villagers' Committee and payment of court costs by Shunyi Company. The facts and reasons alleged by it were as follows: In 2003, Yueqing Municipal Land and Resources Bureau requisitioned 700 mu of land from Villagers' Committee, and according to the relevant provisions, returned 70 mu of the land to Villagers' Committee as land reserved for it to develop for rural residential and commercial purposes. Later, on August 30 and October 16, 2003 respectively, Villagers' Committee entered into two agreements with Shunyi Company regarding Lot 7 (12.27 mu in area) of the reserved land. According to the major provisions of the agreements, Villagers' Committee should have a net gain of 50 million yuan without regard to the land assignment amount refunded by the competent land authority to it. If the lot was acquired by Shunyi Company after bidding, the surplus, together with the deposit of 30 million yuan prepaid by Shunyi Company, should be refunded to Shunyi Company. If an entity other than Shunyi Company acquired the lot, the surplus should be evenly shared by both parties. On January 22, 2004, Yueqing Municipal Land and Resources Bureau invited bids for the land use right of Lot 7 pursuant to law, and Shunyi Company won at a price of 156.5 million yuan. According to the relevant provisions, Yueqing Municipal Government returned 122.4 million yuan of the land assignment amount to Villagers' Committee. On April 21 and May 8, 2004, Villagers' Committee transferred in twice a total of 82.4 million yuan to the account of Shunyi Company (including 10 million yuan deposit returned to Shunyi Company). 2005年7月11日,村委会向浙江省高级人民法院起诉,请求:确认双方当事人在2003年10月16日签订的协议书无效,并返还村委会5240万元;诉讼费由顺益公司承担。事实和理由为:2003年,乐清市国土资源局征用村委会土地700亩,按规定返还70亩作为村委会安置留用地,用于村民住宅和经营性开发。后村委会就该留用地中12.27亩的7号地块与顺益公司于 2003年8月30日、10月16日签订了两份协议书。协议的大致意思为无论土地主管机关返还村委会的土地款是多少,村委会都净得5000万元,如由顺益公司竞得,则超出部分连同顺益公司已付给村委会的 3000万元保证金一并返回顺益公司;如由其他单位竞得,则超出部分双方各半分成。 2004年1月22日,乐清市国土资源局依法对7号地块土地使用权进行招标出让,后由顺益公司以1.565亿元的价格竞得。根据有关规定,乐清市政府又将该土地出让金中的1.224亿元返还给了村委会。 2004年4月21日、5月8日,村委会分两次通过转账形式共付给了顺益公司8240万元(该款项包含了村委会返还顺益公司的1000万元保证金)。
The plaintiff complained that the villagers then did not know the above acts of Villagers' Committee. When the villagers later asked Villagers' Committee to demand refund of 52.4 million yuan from Shunyi Company, not the 30 million yuan deposit, Villagers' Committee failed to perform its duty. The villagers also appealed to the government for invalidating Shunyi Company's winning bid, but in vain. The villagers then resorted to court, alleging that the agreements were null and void and demanding refund, but the lawsuit was not accepted by the court because the villagers did not have standing to sue. Therefore, the villagers reelected the members of Villagers' Committee and a new director of it according to the Law of the People's Republic of China on the Organization of Villagers' Committees. After inauguration, the new Villagers' Committee asked the Government to take the initiative to invalidate the bid, but the Government still failed to act. In the bidding, the base price of the land was 70 million yuan. Shunyi Company won the bid at a price of 156.5 million yuan, but the runner-up lost only by a margin of 200,000 yuan. So, the agreements were signed by both parties in collusion and in bad faith to damage the legitimate interests of the villages' collective and other bidders, and thus should be held void. Both parties should restitute their property acquired respectively. Because Shunyi Company had paid a deposit of 30 million yuan to Villagers' Committee and Villagers' Committee had transferred in twice 82.4 million yuan to the account of Shunyi Company, Shunyi Company should return 52.4 million yuan, after deduction of its prepaid deposit, to Villagers' Committee. 对于村委会的上述行为,原告称当时村民并不知道。事后村民要求村委会向顺益公司索回除顺益公司已付3000万元保证金外的5240万元,但村委会未履行其职责。村民还向政府要求废除顺益公司的中标,也未被支持。村民又向法院起诉协议书无效,并要求退款,但因主体问题而未能立案。为此,村民依照《中华人民共和国村民委员会组织法》重新选举了新村委成员和村主任。新村委成立后,曾要求政府主动废标,但政府仍在不作为。在招投标中,土地的起价为7000万元,顺益公司以1.565亿元的价格竞得,而第二标的报价仅比顺益公司的竞得价低20万元。因此,双方当事人签订的协议书属恶意串通损害村民集体及其他竞标人合法利益的行为,属无效合同。双方应当返还各自取得的财产。顺益公司曾向村委会支付了3000万元保证金,村委会两次共向顺益公司支付了8240万元。因此,顺益公司应当向村委会返还除已付保证金外的5240万元。
Shunyi Company lodged a counterclaim with the court of first instance on July 11, 2005, but applied for withdrawal later. The court of first instance ruled to allow the withdrawal. 顺益公司于2005年7月11日向一审法院提起反诉,后又申请撤回,一审法院裁定予以准许。
Shunyi Company pleaded that: according to the Unified Land Requisition Agreement signed by Villagers' Committee and Yueqing Municipal Land and Resources Bureau on January 28, 2003 and Policy Documents No. 7 [199] and 149 [2000] of Yueqing Municipal Government, the acquisition of the subject matter (land) for joint development was legal. Villagers' Committee held a Meeting of Villager Representatives on August 29, 2003, at which an effective resolution of villager representatives was adopted according to law. Of 89 persons who were supposed to be present, 72 were actually present at the meeting. The resolution was adopted in the end with 71 yeas and 1 abstainer (39 of 44 villager representatives were present; and of 45 Party members, 33 were present and 5 were on trip for other affairs). The bilateral cooperation was on an open and voluntary basis, rather than collusion and bad faith as alleged by Villagers' Committee. The two agreements dated August 30 and October 16, 2003 were signed by the two sides after the Meeting of Villager Representatives, were consistent with the meeting resolution in basic contents, but had further provisions on the operations when the final bid for the land was above or lower than 50 million yuan and the penalty for breach of contract. In substance, such provisions were definition of the rights and obligations of and penalties on the two parties. After the signing of these agreements, Shunyi Company did a lot of work on the floor area ratio of Lot 7, which had not been specified by the Government and on which the land's commercial value depended. On January 12, 2004, Yueqing Municipal Land and Resources Bureau issued an approval of land use for construction, which stipulated that the floor area ratio should be < 5.8 and the construction area should be < 50,610 square meters, thus increasing the commercial value of Lot 7. In addition, Shunyi Company also conducted land planning, designing, measurements and other front-end work according to the agreements. On February 28, 2004, Shunyi Company won the bid for the land use right of Lot 7 at a price of 156.5 million yuan. Meanwhile, Shunyi Company signed a Contract on Assignment of State-Owned Land Use Right with Yueqing Municipal Land and Resources Bureau, which had been notarized. In sum, the agreements entered into by both parties should be held valid because they represented the true will of both parties and complied with the relevant laws and regulations. Both parties should continue to fulfill the agreements. Shunyi Company requested the court to dismiss the claims of Villagers' Committee. 顺益公司答辩称:依据2003年1月 28日村委会与乐清市国土资源局签订的统一征地协议及乐清市政府乐政(1999)7号、乐政(2000)149号文件,证明双方合作经营的标的物(土地)的取得是合法的。村委会于2003年8月29日召开村民代表大会,依法形成有效的村民代表决议。该次村民代表大会应到人数89人,实到72人,最后以71票同意,1票弃权,通过了该决议(其中村民代表应到44人、实到39人;党员应到45人、实到33人、党员外出5人)。双方的合作是以公开、自愿为基础,村委会所称双方恶意串通不实。2003年8月30日与10月16日的两份协议书是在村民代表大会以后双方签订的,基本内容与大会决议一致,但是对该土地挂牌时超过5000万元或低于5000万元时如何操作以及双方违约时的罚则作了进一步的约定,其实质是对双方权利与义务及罚则的界定。双方协议签订后,由于7号地块的建筑容积率政府未予规定,而容积率的高低,决定土地的商业价值,为此,顺益公司做了大量工作。2004年1月12日,乐清市国土资源局下发了建设用地批准书,该批准书规定容积率<5.8,建筑面积<50610平方米,从而提升了7号地块的商业价值。另按照双方的协议,顺益公司还进行了前期的土地规划设计、测量等。2004年2月28日,顺益公司以1.565亿元价格竞得7号土地使用权。同时,顺益公司与乐清市国土资源局签订了《国有土地使用权出让合同》,并经公证。综上,双方订立的协议是双方真实意思的表示,且符合相关的法律法规,故协议有效,双方应继续履行,请求依法驳回村委会的诉讼请求。
Through trial, considering the views of both parties, the court of first instance deemed that the focal dispute in this case was the validity of the agreement signed by the two sides on October 16, 2003. Villagers' Committee alleged that the agreement was signed by the former Villagers' Committee and Party Branch Committee without villagers' knowledge, which violated the relevant provisions of the Law of the People's Republic of China on the Organization of Villagers' Committees; so, the agreement was result of collusion in bad faith, detrimental to the legal interests of villagers' collective and other bidders, and should be held void according to law. Shunyi Company argued that there was no factual evidence to prove any collusion in bad faith between both parties because the agreement was deliberated and approved at the Meeting of Villager Representatives; after the signing of the agreement, Shunyi Company had done a lot of work for development of the land, and legally obtained the state-owned land use right by on-exchange assignment; and because the agreement represented the true will of the two sides and complied with the relevant legal provisions, it should be held valid. 一审法院审理认为,综合双方当事人诉辩意见,本案争议的焦点是双方于2003年10月16日签订的协议书效力问题。村委会称,双方当事人签订的协议书系前任村“两委”所为,村民不知道,违反了《中华人民共和国村民委员会组织法》有关规定,协议书系双方恶意串通,损害村民集体及其他竞标人合法利益的行为,依法应确认无效。顺益公司则称,该协议书已经村民代表会议讨论通过,双方恶意串通无事实证据;双方签订协议书后,顺益公司已为开发该地块做了大量的工作,并通过挂牌出让的合法途径取得了国有土地使用权,双方所签订的协议书是真实意思的表示,符合法律的规定,属有效协议。
In the opinion of the court of first instance, the Minutes of the Meeting of Villager Representatives confirmed that the former Villagers' Committee had submitted the matters under the agreement to the Meeting of Villager Representatives for deliberation and adoption in accordance with the provisions on dispositions related to the interests of villagers of Article 19 of the Law of the People's Republic of China on the Organization of Villagers' Committees聊五分钱的天吗. The plaintiff's assertion that villagers did not know the above fact was not true and should be rejected. Document No. 76 [2003] issued by Yueqing Municipal Land and Resources Bureau only proved that this Bureau sent a letter to the Villagers' Committee and Party Branch Committee of North Shima Village, Yuecheng Town on June 15, 2003, asking them to terminate their plan on public bidding for Lot 7, and could not prove any collusion in bad faith between the two parties. Both the base price of 71 million yuan and the deal price of 156.5 million yuan for the land in question were higher than 50 million yuan agreed upon by both parties, but there was no evidence that the two parties colluded with each other in bad faith before signing the agreement. Because the two sides signed the agreement for the purpose of ensuring the interests of both sides and the contents of the agreement were discussed and approved at the Meeting of Villager Representatives, it did not damage the interests of villagers' collective. Yueqing Municipal Land and Resources Bureau confirmed on February 27, 2004 that the right to use the state-owned land in dispute was assigned at a deal price of 156.5 million yuan through on-exchange assignment, and the assignee, Shunyi Company, had already paid off the land assignment amount of 156.5 million yuan and acquired a certificate of right to use state-owned land regarding the lot in dispute. So far, the entire process of on-exchange assignment had been completed. Since neither of the two sides had raised any objection to it, the on-exchange assignment should be held lawful and valid. As a bidder, Shunyi Company did not violate the relevant provisions on the assignment of state-owned land use rights by bidding, auction or on-exchange assignment. So, it did not injure the interests of other bidders either. In this case, the court did not see any malicious collusion to damage the interests of the state, a collective or a third party as mentioned in paragraph 2, Article 52, nor any other situation in Article 52, of the Contract Law of the People's Republic of China, which would invalidate a contract. Shunyi Company's opinion that the agreement signed by both parties was valid should be supported by the court. According to paragraph 1, Article 64 of the Civil Procedure Law of the People's Republic of China, the court rendered a judgment as follows: the claims of Villagers' Committee should be dismissed, and the case acceptance fee of 272,010 yuan and investigation fee of 2,000 yuan for the trial of first instance should be paid by Villagers' Committee. 一审法院认为,村民代表会议的记录,证实村委会已按照《中华人民共和国村民委员会组织法谁敢欺负我的人》第十九条有关涉及村民利益处置的规定,就双方协议所指事项提交村民代表会议讨论通过,村委会称村民不知道与事实不符,不予采信。乐清市国土资源局文件乐土资[2003]76号函,只证明乐清市国土资源局于2003年6月15日发函给乐成镇石马北村双委,要求终止村双委所筹划的对7号地块向社会公开招标的行为,无法证明双方当事人之间系恶意串通。虽然诉争地块的挂牌出让的起始价为 7100万元,最后成交价为1.565亿元,都高于双方协议约定的5000万元,但并没有证据证实双方当事人在签订协议前存在恶意串通的事实。双方签订协议的目的是为了确保双方的利益,且协议内容经过村民代表会议讨论通过,不存在损害集体利益的问题。乐清市国土资源局已于2004年2月 27日确认诉争国有土地使用权的挂牌出让以1.565亿元成交,作为受让方顺益公司亦已经付清了土地出让款1.565亿元,并于2004年6月26日取得了讼争地块的国有土地使用权证,整个挂牌出让过程已经完成。双方对此并无异议,挂牌行为是合法有效的。顺益公司参与挂牌并没有违反招标拍卖挂牌出让国有土地使用权的规定,因此也不存在侵害其他竞投人利益。本案不存在《中华人民共和国合同法》第五十二条第(二)项规定的恶意串通,损害国家、集体或者第三人利益的无效情形,也不存在第五十二条规定的其他无效情形,顺益公司主张双方协议有效,予以采纳。依照《中华人民共和国民事诉讼法》第六十四条北大法宝第一款之规定,判决驳回村委会的诉讼请求。一审案件受理费272 010元,调查费2000元,由村委会负担。
Villagers' Committee appealed the judgment of the first instance to this Court, requesting: 1. revocation of the judgment of the first instance; 2. confirmation of invalidity of the agreement signed by both parties on October 16, 2003 and refund of 52.4 million yuan to Villagers' Committee; 3. payment of all court costs by Shunyi Company. The major facts and reasons alleged by it are as follows: 1. Villagers' Committee did not convene a Meeting of Villager Representatives before entering into the agreement with Shunyi Company, and the Minutes of Meeting of Villager Representatives should be inadmissible for its unknown source; 2. Shunyi Company did not provide evidence that the floor area ratio of the land was raised for work that it had done; 3. The on-exchange assignment of the land at issue damaged the legitimate interests of other bidders; 4. In the Minutes of Meeting of Villager Representatives, the signatures of representatives Zhang Congding, Tang Changmin and Yang Minzhong were faked and did not have legal force; 5. None of the three agreements had been deliberated at a legally convened Meeting of Villager Representatives; 6. In the Minutes of Meeting of Villager Representatives, the distribution of the “amount above 50 million” was not specified. 村委会不服一审判决,向本院提起上诉。请求:1.撤销一审判决;2.确认双方当事人在2003年10月16日签订的协议书无效,并返还村委会5240万元;3.诉讼费由顺益公司承担。主要事实理由是:1.村委会与顺益公司签订协议前未召开村民大会,“村民会议记录”来源不明,不应采信; 2.顺益公司没有提供证据证明因其做工作提高了土地容积率;3.讼争土地挂牌损害其他竞标人的合法权益;4.“村民会议记录”中张从定、唐长敏、杨明忠村民代表的签字是假的,不具有法律效力;5.三份协议书没有经过合法的村民代表会议讨论;6.“村民会议记录”没有对“超出5000万元的部分”如何分配作出明确约定。
Shunyi Company pleaded that: it acquired the land in dispute under legal procedures, rather than any illegal assignment from Villagers' Committee, and there was no collusion with others in bad faith; the acquisition of the Minutes of Meeting of Villager Representatives did not violate law, the authenticity of which was undeniable, and the contradictory testimonies provided by the three villagers should be inadmissible; and any objection to the legal force of the on-exchange assignment was irrelevant to this case. 顺益公司答辩称:对双方争执土地,顺益公司是经合法程序取得的,其与村委会不存在非法转让关系,也不存在与他人恶意串通等;“村民会议记录”的取得不违反法律,其真实性不可否认,三村民的证言前后矛盾,不可采信;对挂牌效力异议与本案无关。
The facts found in the trial of the first instance are affirmed by this Court in the trial of the second instance. 二审查明的事实与一审查明的事实相同。
In the opinion of this Court, the focal dispute in this case is: whether the agreement signed by the two sides on October 16, 2003 is valid; how to handle the proceeds of 122.4 million yuan from the on-exchange land assignment; and how to determine the objection to the validity of the on-exchange assignment. 本院认为,本案争议焦点为:双方签订的2003年10月16日协议书是否有效,土地挂牌出让所得价款1.224亿元如何处理,对挂牌效力异议应如何认定三个问题。
1. The validity of the agreement dated October 16, 2003. The two parties have signed a total of three agreements. Before entering into the agreement dated August 30 with Shunyi Company, Villagers' Committee convened a Meeting of Villager Representatives on August 29, 2003, at which a resolution was adopted. According to the resolution, it should be ensured that Villagers' Committee would have a net gain of 50 million yuan for the land assignment (consequences of the percentage of the land assignment amount which went to the land bidding department should be assumed solely by Shunyi Company and irrelevant to Villagers' Committee); Shunyi Company should pay a deposit of 30 million yuan for solving problems and making up compensation for land operation right contracting households, while the rest of the payment should be made (in one lump sum) after the initiation of on-exchange assignment; and neither party should renege on this agreement regardless the amount of winning bid. On the next day, the two sides signed an agreement, under which they agreed that: a net assignment price of 50 million yuan should be ensured by Shunyi Company for Villagers' Committee, i.e. Shunyi Company should pay Villagers' Committee 50 million yuan without regard to the wining price of Shunyi Company for the land; the rights and obligations arising from policies and other provisions as well as changes thereof or other factors concerning this lot should have nothing to do with Villagers' Committee; where this lot was acquired by any other company through on-exchange assignment, if Villagers' Committee received a net payment of less than 50 million yuan, Shunyi Company should make up the deficit or if the Committee received a net payment of more than 50 million yuan, the surplus should be evenly shared by both sides. On September 9 of the same year, the two sides signed another agreement, which is not detailed herein since it is irrelevant to the disputes between both parties. On October 16, 2003, the two sides signed a third agreement, under which, in addition to the net gain of 50 million yuan of Villagers' Committee, they explicitly agreed that the amount above 50 million yuan, together with 30 million yuan that Shunyi Company prepaid to Villagers' Committee, should be refunded to Villagers' Committee as benefits from its previous input and efforts. They also agreed that all agreements previously reached orally or in writing should be superseded by this third agreement. 关于双方签订的2003年10月16日协议书是否有效的问题。双方当事人前后共签订三份协议书,村委会与顺益公司在签订8月30日协议书前,于2003年8月 29日召开了村民代表大会,形成了会议决议。其内容为:确保净地款5000万元(土地竞标部门抽多少由顺益公司自负与村无涉),先付开发保证金3000万元解决困难,找补承包户,其余款在挂牌后付清(一次性),竞标后的价格多少双方各无反悔。会后第二天,双方当事人签订协议约定,顺益公司确保村委会该地块土地出让金净值 5000万元,即无论顺益公司以任何价格取得该地,均应净付给村委会5000万元。涉及该地块的政策等规定及政策或其他一切因素的变化而产生的任何权利与义务均与村委会无关。若挂牌出让时其他公司取得该地块,村委会净得出让金少于5000万元,不足部分由顺益公司补足,村委会净得出让金多于5000万元,多余部分双方各半分成。同年9月9日,双方又签订协议书,由于该协议书与双方争议问题无关不再赘述。2003年10月16日,双方签订第三份协议书,该协议书除约定村委会净得额为 5000万元以外,又明确约定,多出5000万元的部分作为顺益公司此前合作过程的投入和努力的受益分成,此款连同顺益公司已付村委会的3000万元,由村委会一并返回给顺益公司。另该协议书还约定了本协议达成前的双方所作口头、书面协议均作废,以本协议书为准。
This Court holds that: it is the agreement dated August 30 that was signed by both parties after the Meeting of Villager Representatives. Thereafter, Villagers' Committee had not convened any Meeting of Villager Representatives before the agreement dated October 16 was signed. The two agreements are generally similar as to the amount of payment to Villagers' Committee for the land assignment and issues such as dealing with situations after the on-exchange assignment, but the one dated August 30 does not provide that Villagers' Committee should refund to Shunyi Company the entire surplus above 50 million yuan, nor is this provision contained in the resolution of the Meeting of Villager Representatives. Therefore, there is no evidence that the Meeting of Villager Representatives approved the new agreement dated October 16. Shunyi Company's claim that the agreement dated October 16 was signed upon a resolution of the Meeting of Villager Representatives lacks factual basis, and this agreement shall be held invalid. The judgment of the first instance is wrong to hold that the agreement dated October 16 is valid, and shall be redressed. The Minutes of Meeting of Villager Representatives provided by Shunyi Company can only prove that the agreement dated August 30 was signed upon a resolution of the Meeting. According to the Minutes, on August 29, 2003, Villagers' Committee convened a Meeting of Villager Representatives, which was attended by 72 people, of whom 71 signed for the resolution and 1 abstained. In view of the procedures for convening the Meeting, the Meeting was convened in compliance with Article 18 爬数据可耻of the Law of the People's Republic of China on the Organization of Villagers' Committees, and the contents of the agreement dated August 30 are generally consistent with the Meeting resolution, i.e. ensuring that Villagers' Committee has a net payment of 50 million yuan for the land assignment. However, neither of them clarifies how to deal with the amount above 50 million yuan after Shunyi Company wins the bid. So, because the contents of the agreement signed by the two parties on August 30 were discussed and approved at the Meeting of Villager Representatives in accordance with Article 19 of the Law of the People's Republic of China on the Organization of Villagers' Committees, this agreement shall be deemed valid. During the court hearing, 3 villager representatives testified that their signatures in the Meeting resolution were not affixed by themselves. This Court is of the view that even if some signature is not affixed by a person in person, the validity of a Meeting resolution approved by the majority of villager representatives shall not be negated. Therefore, Villagers' Committee's claim that the agreement dated August 30 agreement is invalid shall not supported for insufficient evidence. 本院认为,村委会召开村民代表大会后,双方当事人签订的是8月30日协议书。而双方于10月16日签订协议书之前,村委会没有再召开村民代表大会。虽然两个协议书在约定的给付村委会土地出让款额及挂牌出让后出现的情况如何处理等内容上大致相同,但8月30日协议书没有明确约定竞标多于5000万元部分由村委会全部返回给顺益公司的内容,村民代表大会决议也没有此项内容。因此,10月16日协议书作为一个新协议,没有证据证明已经村民代表大会同意。顺益公司称10月 16日协议书是经过村民代表大会决议而签订的事实依据不足,故该协议应认定无效。一审判决认定10月16日协议书有效是错误的,应予纠正。顺益公司提供的村民代表大会的会议记录,仅能证明8月30日协议书是经村民代表大会决议后签订的。根据村委会会议记录证明,2003年8月29日村委会召开了村民代表大会,到会人员 72人,签名同意会议决议的71人,弃权1人。从会议召开的程序看,符合《中华人民共和国村民委员会组织法》第十八条的法律规定,而且8月30日协议书约定与村民代表大会决议内容基本上是一致的,即确保村委会取得净地款5000万元,对顺益公司中标后超出5000万元的部分如何处理均没有明确意见。因此,8月30日双方所签订的协议书内容是经过村民代表大会讨论决定的,符合《中华人民共和国村民委员会组织法》第十九条的规定,故该协议书应认定为有效。至于在庭审中,有三名村民代表称村民代表大会决议中,不是本人签名问题,本院认为,即使会议决议中有个别人的名字是代签的,也不能由此而否认多数村民代表通过的会议决议。因此,村委会主张8月30日协议书无效证据不足,不予支持。
2. How to handle the 122.4 million yuan land assignment amount of Lot 7. This Court holds that, as agreed upon by both parties, 50 million yuan of the 122.4 million yuan land assignment amount should belong to Villagers' Committee; however, they did not clearly stipulate the distribution of the remaining 72.4 million yuan. To equitably distribute this amount, the interests of both parties shall be balanced. In view of the specific circumstances in this case, Shunyi Company had done some front-end work on the land before bidding for the land, and this amount is also related to the production and living of villagers who have lost their land. Since the situations on both sides are not directly comparable, the money shall be allocated under the principle of relative fairness, i.e. evenly shared by Villagers' Committee and Shunyi Company, 36.2 million yuan for each. As a result, of the 122.4 million yuan land assignment amount, Villagers' Committee shall actually obtain 86.2 million yuan, while Shunyi Company shall actually receive 36.2 million yuan. Because Villagers' Committee has returned 82.4 million yuan to Shunyi Company, Shunyi Company needs to pay Villagers' Committee 16.2 million yuan after deduction of the 20 million yuan deposit that Villagers' Committee has not refunded to Shunyi Company. 关于7号地块挂牌出让所得价款 1.224亿元,应如何处理问题。本院认为,根据协议书的约定,1.224亿元土地价款中的 5000万元应归村委会所有;其余7240万元双方当事人如何分配未作明确约定。分配这笔款项,应当衡平双方当事人的利益,从本案的具体情况看,顺益公司在土地竞标前对土地作了一些前期工作,这笔款项关系到失地村民的生产和生活。由于双方当事人的情况没有直接的可比性,确定分配款项的数额可以依据相对公平的原则由双方各分得一半,即村委会与顺益公司各分得3620万元。1.224亿元土地价款,村委会实得8620万元;顺益公司实得3620万元。因村委会已返还顺益公司8240万元,扣除村委会尚未退还顺益公司已付的 2000万元保证金,顺益公司还应再付给村委会1620万元。
3. How to determine the objection to the validity of on-exchange assignment. Villagers' Committee contended that there was collusion in the bidding between the two parties, which was detrimental to the interests of third parties, and therefore the bidding should be null and void. In the view of this Court, after Yueqing Municipal Land and Resources Bureau confirmed the on-exchange assignment of the right to use the land in dispute and Shunyi Company won the bid, paid off the land assignment amount and acquired the Certificate of Right to Use State-owned Land concerning the lot in dispute, if a third party raises any objection to it, considering that there is any bad faith collusion between the two parties in the bidding which damages the third party's interests, the third party shall file a claim with the competent authority, and Villagers' Committee does not have the right to file such a claim. Therefore, this claim of Villagers' Committee shall not be supported. 关于对挂牌效力异议应如何认定问题。村委会认为在竞标中双方当事人有串标行为,侵害了第三方利益,应为无效。本院认为,乐清市国土资源局在确认讼争土地使用权的挂牌出让后,顺益公司中标,而且在中标后付清了土地出让款,并已取得了讼争地块的《国有土地使用权证》。对此,如果有第三方提出异议,认为在竞标中当事人有串标行为侵害其利益,应由第三方向有关部门提出主张,而村委会无权主张。对村委会该项诉讼请求,不予支持。
JUDGMENT 
Hence, in accordance with Article 153.1 (2) of the Civil Procedure Law of the People's Republic of China, this Court renders the following judgment: 综上,依照《中华人民共和国民事诉讼法》第一百五十三第一款第(二)项之规定,判决如下:
1. The civil judgment (No.7 [2005] Civil Division I, First Instance, Zhejiang) of the Higher People's Court of Zhejiang Province shall be revoked; 一、撤销浙江省高级人民法院 (2005)浙民一初字第7号民事判决;
2. Zhejiang Shunyi Real Estate Development Co., Ltd. shall pay 16.2 million yuan to the Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province within fifteen days after the effective date of this judgment. If any obligation of pecuniary payment determined in this judgment is not performed at maturity, double interest on the pecuniary debt during the period of delay in payment shall be paid according to Article 232 of the Civil Procedure Law of the People's Republic of China; and 二、浙江顺益房地产开发有限公司在本判决生效后十五日内给付浙江省乐清市乐成镇石马北村村民委员会1620万元。如逾期不履行本判决确定的金钱给付义务,应当依照《中华人民共和国民事诉讼法》第二百三十二条的规定,加倍支付迟延履行期间的债务利息;
3. Other claims of the Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province shall be dismissed. 三、驳回浙江省乐清市乐成镇石马北村村民委员会的其他诉讼请求。
The case acceptance fee of 544,020 yuan and investigation fee of 2,000 yuan, totaling 546,020, for the trials of the first and second instances shall be evenly paid by both parties, i.e. the Villagers' Committee of North Shima, Yuecheng Town, Yueqing City, Zhejiang Province shall pay 273,010 yuan, and Zhejiang Shunyi Real Estate Development Co., Ltd. shall pay 273,010 yuan. 一、二审案件受理费544020元、调查费2000元,共计546 020元,由双方各半承担,即浙江省乐清市乐成镇石马北村村民委员会负担273 010元,浙江顺益房地产开发有限公司负担273 010元。
This judgment shall be final. 本判决为终审判决。
Presiding Judge: Han Yanbin 审 判 长 韩延斌
Judge: Sun Yanping 审 判 员 孙延平
Acting Judge: Zhang Yingxin 代理审判员 张颖新
September 30, 2007 二00七年九月三十日
Clerk: Yu Wenjun

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