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Chen Quan and Pi Zhiyong v. Chongqing Bibo Real Estate Development Co., Ltd., Xia Changjun and Chongqing Aokang Properties Co., Ltd. (contractual disputes)
陈全、皮治勇诉重庆碧波房地产开发有限公司、夏昌均、重庆奥康置业有限公司合同纠纷案
【法宝引证码】

Chen Quan and Pi Zhiyong v. Chongqing Bibo Real Estate Development Co., Ltd., Xia Changjun and Chongqing Aokang Properties Co., Ltd. (contractual disputes)
(contractual disputes)
陈全、皮治勇诉重庆碧波房地产开发有限公司、夏昌均、重庆奥康置业有限公司合同纠纷案

Chen Quan and Pi Zhiyong v. Chongqing Bibo Real Estate Development Co., Ltd., Xia Changjun and Chongqing Aokang Properties Co., Ltd.
(Contractual disputes)

 

陈全、皮治勇诉重庆碧波房地产开发有限公司、夏昌均、重庆奥康置业有限公司合同纠纷案


[Judgment summary]
 
[裁判摘要]

 
1. According to the provisions of Article 24 of the Interpretation of the Supreme People's Court of Issues concerning the Application of Law in the Trial of Contractual Dispute Cases Involving the Right to Use State-owned Land, if it is agreed in a cooperative real estate development contract that the party providing land use rights assumes no operational risk and only receives fixed benefits, the contract should be determined as a land use right transfer contract. The contract title as agreed on by both parties does not affect the determination of the nature of the contract. 一、根据最高人民法院《关于审理涉及国有土地使用权合同纠纷案件适用法律问题的解释》第二十四条的规定,合作开发房地产合同约定提供土地使用权的当事人不承担经营风险,只收取固定利益的,应当认定为土地使用权转让合同。当事人自行约定的合同名称不影响对合同性质的认定。

 
2. Article 52 of the Contract Law of the People's Republic of China provides that: “Under any of the following circumstances, a contract shall be void: … (2) colluding maliciously to harm the interests of the state, a collective or a third party; …” According to the foregoing provision, if a legal person enters into a contract maliciously in collusion with another party, which harms the legal person's own interests in appearance but harms a third party's interests in fact, the third party should have the right to institute an action for voiding the contract. 二、《中华人民共和国合同法》第五十二条规定:“有下列情形之一的,合同无效:………(二)恶意串通,损害国家、集体或者第三人利益;………”根据前述规定,法人与他人恶意串通签订合同,表面上损害法人自身利益,实质上损害第三人利益的,第三人有权提起确认合同无效之诉。

 
3. In the determination of “colluding maliciously” as referred to in the foregoing provision, whether both parties to a contract are subjectively malicious should be analyzed, as well as the specific circumstances under which the contract was concluded and the content and performance of the contract, so as to render a fully considered judgment. 三、对于前述条款中“恶意串通”行为的认定,应当分析合同双方当事人是否具有主观恶意,并全面分析订立合同时的具体情况、合同约定内容以及合同的履行情况,在此基础上加以综合判定。

Supreme People's Court
 
最高人民法院

Civil Ruling
 
民事裁定书

No. 1760 (2009) Civil Petition
 
(2009)民申字第1760号

BASIC FACTS
 

Retrial petitioner (defendant and appellee): Chongqing Bibo Real Estate Development Co., Ltd., domiciled at: F6, New Century Plaza, Xiangyang Xinjie, Bicheng Sub-district, Bishan County, Chongqing City.
 
申请再审人(一审被告、二审被上诉人):重庆碧波房地产开发有限公司。

Legal representative: Xia Changjun, board chairman of the company.
 
法定代表人:夏昌均,该公司董事长。

Attorney: Zhao Xinzhou, lawyer of Beijing Union Best Partners.
 
委托代理人:赵新宙,北京市嘉诚泰和律师事务所律师。

Retrial petitioner (defendant and appellee): Xia Changjun, male, born on April 5, 1969, Han Chinese, board chairman of Chongqing Bibo Real Estate Development Co., Ltd., living at Rm. 6-2, Building 1, 20 Yanghe North Road, Yubei District, Chongqing City.
 
申请再审人(一审被告、二审被上诉人):夏昌均。

Attorney: Zhao Xinzhou, lawyer of Beijing Union Best Partners.
 
委托代理人:赵新宙,北京市嘉诚泰和律师事务所律师。

Retrial petitioner (defendant and appellee): Chongqing Aokang Properties Co., Ltd., domiciled at: Building 1, 498 Jinjian Road, Bicheng Sub-district, Bishan County, Chongqing City.
 
申请再审人(一审被告、二审被上诉人):重庆奥康置业有限公司。

Legal Representative: Wang Zhentao, board chairman of the company.
 
法定代表人:王振滔,该公司董事长。

Authorized representative: Yang Jinyan, male, born on August 14, 1979, Han Chinese, living at Staff Dormitory of Wenzhou Normal College, Xueyuan East Road, Puxie Sub-district, Lucheng District, Wenzhou City, Zhejiang Province.
 
委托代理人:杨锦炎。

Respondent (plaintiff and appellant): Chen Quan, male, born on October 8, 1964, Han Chinese, living at Rm.3-1, Entrance 2, Building 3, 44 Donglin Avenue, Bishan County, Chongqing City.
 
被申请人(一审原告、二审上诉人):陈全。

Attorney: Liu Mou, lawyer of Chongqing Jize Law Firm.
 
委托代理人:刘谋,重庆霁泽律师事务所律师。

Attorney: Li Meijun, lawyer of Chongqing Jize Law Firm.
 
委托代理人:李美军,重庆霁泽律师事务所律师。

Respondent (plaintiff and appellant): Pi Zhiyong, male, born on August 8, 1968, Han Chinese, living at Rm.3-1, 10 Nongshi Street, Bishan County, Chongqing City.
 
被申请人(一审原告、二审上诉人):皮治勇。

Attorney: Liu Mou, lawyer of Chongqing Jize Law Firm.
 
委托代理人:刘谋,重庆霁泽律师事务所律师。

Attorney: Li Meijun, lawyer of Chongqing Jize Law Firm.
 
委托代理人:李美军,重庆霁泽律师事务所律师。

Against the civil judgment (No. 141 [2009] Civil, Final, Chongqing HPC) of the Higher People's Court of Chongqing City, Chongqing Bibo Real Estate Development Co., Ltd. (“Bibo Company”), Xia Changjun and Chongqing Aokang Properties Co., Ltd. (“Aokang Company”) filed a retrial petition with this Court for disputes with Chen Quan and Pi Zhiyong over a cooperative real estate development contract. This Court legally formed a collegial panel to review this case, and the review of this case has concluded.
 
申请再审人重庆碧波房地产开发有限公司(简称碧波公司)、夏昌均、重庆奥康置业有限公司(简称奥康公司)因与被申请人陈全、皮治勇合作开发房地产合同纠纷一案,不服重庆市高级人民法院(2009)渝高法民终字第141号民事判决,向本院申请再审。本院依法组成合议庭对本案进行了审查,现已审查终结。

PROCEDURAL POSTURE
 

In their retrial petition, Bibo Company, Xia Changjun and Aokang Company alleged that: (1) There was neither factual nor legal basis for the second-instance judgment to determine that the legal relationship between Bibo Company and Aokang Company was a land use right transfer relationship. (a) The Contract for Joint Development and Construction of the Residential Area Attached to the Shoes Industry Park (hereinafter referred to as the “Joint Development Contract”) and the Agreement for the Exclusive Sale of the Jointly Developed and Constructed Residential Area Attached to the Shoes Industry Park (hereinafter referred to as the “Exclusive Sale Agreement”) signed by and between Bibo Company and Aokang Company did not involve any land use right transfer. (b) In addition to contributing land use rights to the project, Aokang Company provided approval documents, deal with relevant formalities, coordinated the implementation of preferential policies, participated in project supervision, reviewed and signed external documents for the project, and assumed other tasks in the cooperative development. By the end of 2007, when the contract between both parties was terminated, Aokang Company had paid more than 40 million yuan for the project. (c) Aokang Company authorized Bibo Company to exclusively sell its share (18,000 square meters) of the developed real estate, which was irrelevant to whether it would assume the risks in the cooperative development of the real estate project. As the real estate project between Aokang Company and Bibo Company was developed in the name of Aokang Company, Aokang Company remained fully responsible for the real estate project. (2) For violating legal procedures, the identification conclusion of the identification agency commissioned by the court of second instance should not serve as a basis for fact finding. (a) The court of second instance should not allow a new identification. (b) The new identification violated legal procedures, because it deprived the parties concerned of their rights to choose an identification agency. (c) The identification was insufficient to confirm or deny the authenticity of the Payment Receipt. (d) There was insufficient evidence for the second-instance judgment to infer that Chen Quan and Pi Zhiyong had not recovered their investments based on the aforesaid identification conclusion. (3) According to the principle of privity of contract, Chen Quan and Pi Zhiyong were not the contracting parties to the Agreement for the Rescission of the “Contract for Joint Development of Aokang Residential Area” and the “Exclusive Sale Agreement” (hereinafter referred to as the “Rescission Agreement”), nor did they have any rights and obligations thereunder. There was no legal basis for the second-instance judgment to determine that the rights and interests of Chen Quan and Pi Zhiyong were infringed under the Rescission Agreement. (4) There was insufficient evidence for the second-instance judgment to determine that Bibo Company colluded maliciously with Aokang Company. (a) An essential element of malicious collusion was “being fully aware or should have been aware of the infringement of a third party's interests.” When signing the Rescission Agreement, Aokang Company was not aware of the Shareholder Cooperation Agreement among Chen Quan, Pi Zhiyong and Xia Changjun. Even if it was aware of the partnership among Chen Quan, Pi Zhiyong and Xia Changjun, based on the Payment Receipt dated earlier, Aokang Company had reasons to believe that their partnership had been terminated. Therefore, the Rescission Agreement between it and Bibo Company did not constitute malicious collusion. (b) The second-instance judgment determined that the Rescission Agreement between Bibo Company and Aokang Company evidently contravened the law of business because the commercial building sales in Chongqing City were “rising both volume and price” on the whole when the Rescission Agreement was signed. However, this determination was unfounded. (c) The second-instance judgment determined that it was unreasonable for Aokang Company to pay 3-million yuan liquidated damages without liquidating debts with Bibo Company at the time of rescission. However, there was no factual basis for this determination. (d) The second-instance judgment determined that Xia Changjun continued to manage the project after the signing of the Rescission Agreement, evidently incompatible with the consequences of the rescission. However, there was no factual basis for this determination. After the performance of the Rescission Agreement, as Xia Changjun was familiar with the real estate development project, Aokang Company employed him as one of the persons in charge of the project to continue manage the project. (5) The parties of this case were ineligible. In the partnership dispute, Aokang Company was not an eligible defendant. In the disputes over the cooperative development of real estate between Bibo Company and Aokang Company, since Chen Quan and Pi Zhiyong were not the contracting parties, they were not the eligible defendants. Pi Zhiyong, who was not a shareholder of Bibo Company, had no right to initiate a shareholder's derivative action. In summary, they petitioned this Court for a retrial in accordance with the provisions of Article 179.1(2) and (6) of the Civil Procedural Law of the People's Republic of China.
 
碧波公司、夏昌均、奥康公司申请再审称,(一)二审判决认定碧波公司与奥康公司之间的法律关系为土地使用权转让关系,缺乏事实根据和法律依据。1.碧波公司与奥康公司签订的《联合开发建设鞋都工业园配套住宅小区合同书》(简称联合开发合同)及《联合开发建设鞋都工业园商住小区包销协议》(简称包销协议),并未涉及土地使用权转让事宜。2.奥康公司在合作开发过程中,除投入土地使用权外,还承担提供批复文件,办理相关手续,协调落实优惠政策,参与项目监督,审查签署项目对外文件等多项责任。截至2007年底双方解除合同为止,奥康公司为项目支付的费用达 4000余万元。3.奥康公司委托碧波公司包销其所应分得的18 000平方米住房,与是否承担合作开发房地产项目风险事项无关。由于奥康公司与碧波公司合作开发房地产项目是以奥康公司的名义进行,奥康公司对外仍然要依法承担项目的全部责任。(二)二审法院委托鉴定机构作出的鉴定结论,程序违法,不应作为认定事实的根据。1.二审法院不应重新进行鉴定。2.二审鉴定程序违法,剥夺了当事人对鉴定机构的选择权。3.鉴定内容不全面,不足以确认或者排除《领款单》的真实性。4.二审判决依据二审鉴定结论推定陈全、皮治勇尚未收回投资款缺乏证据证明。(三)根据合同相对性原则,陈全、皮治勇不是奥康公司与碧波公司之间的《关于解除“联合开发奥康住宅小区合同”及“包销协议”的协议》 (简称解除协议)的签约人和权利义务人,二审判决依据解除协议认定陈全、皮治勇权益受到侵害,没有法律依据。(四)二审判决认定碧波公司与奥康公司存在恶意串通行为,缺乏证据证明。1.恶意串通以明知或应知侵害第三人利益为构成要件,奥康公司在签订解除协议时,不知道陈全、皮治勇与夏昌均之间存在《股东合作协议》。即使知道陈全、皮治勇与夏昌均之间的合伙关系,基于时间在先的《领款单》,奥康公司有理由相信该合伙关系已经解除,其与碧波公司签订解除协议,不构成恶意串通。2.二审判决以解除协议签订时重庆市商品房销售总体上“呈现出量价齐涨”的态势为由,认定碧波公司和奥康公司签订解除协议明显违背商业规律不能成立。3.二审判决认为奥康公司支付300万元违约金,碧波公司与奥康公司解除合同时未对债务进行清理与常理不符,没有事实依据。4.二审判决认为解除协议签订后,夏昌均仍在主持项目工作,与合同解除应当导致的后果明显相悖没有事实依据。在解除协议履行之后,基于夏昌均本人对该房地产开发项目的熟悉。奥康公司聘请夏昌均作为项目负责人之一,继续主持项目工作。(五)本案当事人不适格。在合伙纠纷中,奥康公司不是适格被告。在碧波公司与奥康公司合作开发房地产纠纷诉讼中,陈全、皮治勇不是合同关系当事人,不是适格原告。皮治勇不是碧波公司股东,也无权提出股东派生诉讼。综上,依据《中华人民共和国民事诉讼法》第一百七十九条第一款第(二)项、第(六)项的规定申请再审。

In their written opinions submitted, Chen Quan and Pi Zhiyong maintained that: (1) The second-instance judgment was correct in determining that the legal relationship between Bibo Company and Aokang Company was that of a land use right transfer. (a) According to the provisions of Articles 14 and 24 of the Interpretation of the Supreme People's Court of Issues concerning the Application of Law in the Trial of Contractual Dispute Cases Involving the Right to Use State-Owned Land, Aokang Company's acquisition of a fixed “payment from the exclusive sale of real estate” in an amount of 19.8 million yuan under the Joint Development Contract and the Exclusive Sale Agreement signed by Bibo Company and Aokang Company fell under the circumstances of joint development by title but land transfer in essence. (b) There was no evidence to support the assertion of Bibo Company, Xia Changjun and Aokang Company that Aokang Company had paid more than 40 million yuan for the project. (2) The identification conclusion of the identification agency commissioned by the court of second instance was legal, but the object of identification, the Payment Receipt, was not a key piece of evidence in this case. (a) The re-identification decision of the court of second instance was correct. The identification agency for second instance was agreed upon by both parties. (b) The object of identification, the Payment Receipt, was the only evidence, and Bibo Company failed to provide any evidence on the source of funds for refunding investment and the channel of refunding. (c) The Payment Receipt was contradictory with other evidence in this case. (d) The Payment Receipt could only prove that Xia Changjun, Chen Quan and Pi Zhiyong withdrew their investment on December 26, 2006, and the Shareholder Cooperation Agreement should not be deemed terminated by them for their withdrawal of investment. (3) The malicious collusion between Xia Changjun and Aokang Company was a clear fact. Bibo Company and Aokang Company made no capital investment. Knowing that Xia Changjun, Chen Quan and Pi Zhiyong were the actual investors and controllers of the project, Aokang Company entered into the Rescission Agreement with Bibo Company, which infringed the rights and interests of Chen Quan and Pi Zhiyong. As the project had entered the phase of investment return before the Rescission Agreement was signed by Bibo Company and Aokang Company, the Rescission Agreement did not make any sense. After the rescission of the contract, Xia Changjun remained to be the actual controller of the project. (4) There was no issue in this case regarding eligibility of the parties. Chen Quan and Pi Zhiyong requested this Court to dismiss the retrial petition of Bibo Company, Xia Changjun and Aokang Company for lack of both factual and legal basis.
......
 
陈全、皮治勇提交书面意见认为,(一)二审判决认定碧波公司与奥康公司之间的法律关系属土地使用权转让关系是正确的。1.根据最高人民法院《关于审理涉及国有土地使用权合同案件适用法律问题的解释》第14条、第24条的规定,碧波公司与奥康公司签订的联合开发合同和包销协议约定奥康公司取得固定的“房屋包销款” 1980万元,属于名为联建实为土地转让合同的情形。2.碧波公司、夏昌均、奥康公司称奥康公司为项目支付费用达4000余万元没有证据证明。(二)二审法院委托鉴定机构作出的鉴定结论合法,但鉴定对象《领款单》并非本案的关键证据。1.二审法院决定重新鉴定是正确的。二审鉴定机构是双方协商一致的结果。2.鉴定对象《领款单》是孤证,碧波公司没有举出退投资款的资金来源及退款渠道方面的证据。3.《领款单》与本案其他证据矛盾。4.《领款单》仅能证明夏昌均、陈全、皮治勇于2006年12月 26日退回了投资款,不能以退投资款为由推定三人解除了《股东合作协议》。(三)夏昌钧、奥康公司恶意串通事实清楚。碧波公司和奥康公司并无资金投入,奥康公司明知夏昌均、陈全、皮治勇三人是项目的实际投资人和控制人而与碧波公司签订解除协议,损害了陈全、皮治勇的权益。在碧波公司与奥康公司签订解除协议前,项目已进入投资回报期,此时签订解除协议不合常理。合同解除后,夏昌均仍然是项目的实际控制人。(四)本案不存在当事人不适格的问题。碧波公司、夏昌均、奥康公司的再审申请缺乏事实与法律依据,请求予以驳回。
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