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Shanxi Jiahetai Real Estate Development Co., Ltd. v. Taiyuan Heavy Machinery Group Co., Ltd. (A case about disputes over a contract on transfer of land use right)
山西嘉和泰房地产开发有限公司与太原重型机械(集团)有限公司土地使用权转让合同纠纷案
【法宝引证码】

Shanxi Jiahetai Real Estate Development Co., Ltd. v. Taiyuan Heavy Machinery Group Co., Ltd. (A case about disputes over a contract on transfer of land use right)
(A case about disputes over a contract on transfer of land use right)
山西嘉和泰房地产开发有限公司与太原重型机械(集团)有限公司土地使用权转让合同纠纷案

Shanxi Jiahetai Real Estate Development Co., Ltd. v. Taiyuan Heavy Machinery Group Co., Ltd.
(A case about disputes over a contract on transfer of land use right)

 

山西嘉和泰房地产开发有限公司与太原重型机械(集团)有限公司土地使用权转让合同纠纷案

[Judgment Abstract] 【裁判摘要】
1. Under Article 9 of the Interpretation of the Supreme People'sCourt on the Application of Law for the Trial of Cases of Disputes on ContractsInvolving the Right to Use State-Owned Land, where a transferor concludes a landuse right transfer contract with a transferee before acquiring the certificateof the land use right to be transferred, but before the litigation, thetransferor acquired the certificate of land use right to be transferred or approvalto translfer from the competent people's government, the contract shall be heldas valid. 
2. China laws and regulations regarding taxation administration specifiedthe taxpayers of various taxes, but they do not prohibit a taxpayer fromreaching an agreement with the contract counterparty that the counterparty or athird party is responsible for paying the tax, namely, there are no compulsiveor prohibitive provisions on who should actually pay the tax.  Therefore, parties's agreement that the taxesand fees relating to land transfer shall be borned by person other than thetaxpayer does not violate compulsory rules of laws and regulations, and shallbe held lawful and valid. 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》第九条的规定,转让方未取得出让土地使用权证书与受让方订立合同转让土地使用权,起诉前转让方已经取得出让土地使用权证书或者有批准权的人民政府同意转让的,应当认定合同有效。
3. Under Article 114 of the Contract Law of the People's Republic ofChina,the amount of liquidated damages can be adjusted by the People's Court onlywhen a party applies to the People's Court for making adjustment and theliquidated damages are actually lower or significantly higher than the loss anddamage caused to the party.

 
Supreme People's Court 二、虽然我国税收管理方面的法律、法规对于各种税收的征收均明确规定了纳税义务人,但是并未禁止纳税义务人与合同相对人约定由合同相对人或者第三人缴纳税款,即对于实际由谁缴纳税款并未作出强制性或禁止性规定。因此,当事人在合同中约定由纳税义务人以外的人承担转让土地使用权税费的,并不违反相关法律、法规的强制性规定,应认定为合法有效。

Civil Judgment

 
No. 62 (2007), Civil Division I, Final 三、根据《中华人民共和国合同法》第一百一十四条的规定,对于当事人在合同中约定的违约金数额,只有在当事人请求调整、且合同约定的违约金数额确实低于或者过分高于违约行为给当事人造成的损失时,人民法院才能进行调整。
BASIC FACTS 最高人民法院
Appellant (defendant in original trial): Shanxi Jiahetai Real Estate Development Co., Ltd., domiciled at: 10 Xiyi Alley, Bingzhou South Road, Taiyuan City, Shanxi Province. 民事判决书
Legal representative: Fan Weiming, chairman of the board of directors of this company. 
Attorney: Zhang Gang, lawyer of Shanxi Yuansheng Law Firm. (2007)民一终字第62号
Appellant (plaintiff in original trial): Taiyuan Heavy Machinery Group Co., Ltd., domiciled at: 53 Yuhe Street, Taiyuan City, Shanxi Province. 上诉人(原审被告):山西嘉和泰房地产开发有限公司。住所地:山西省太原市并州南路西一巷10号。
Legal representative: Gao Zhijun, chairman of the board of directors of this company. 法定代表人:范维明,该公司董事长。
Attorney: Duan Weiyue, lawyer of Shanxi Dewei Law Firm. 委托代理人:张刚,山西元升律师事务所律师。
In respect of the disputes over a contract on transfer of land use right between the appellants, Shanxi Jiahetai Real Estate Development Co., Ltd. (“Jiahetai Co.”), and Taiyuan Heavy Machinery Group Co. Ltd. (“Taizhong Co.”), the Higher People's Court of Shanxi Province rendered a civil judgment (No. 20 (2006), Civil, First Instance, Shanxi) on January 22, 2007. Against this judgment of the first instance, both parties appealed to this court. This court legally formed a collegiate bench, and on December 18, 2007, held a hearing of this case. Zhang Gang, attorney of Jiahetai Co., and Duan Weiyue, attorney of Taizhong Co., appeared in court. So far, the trial of this case has been concluded. 上诉人(原审原告):太原重型机械(集团)有限公司。住所地:山西省太原市玉河街 53号。
Through trial, the court of the first instance found that: on March 26, 2002, Taizhong Co. (as Party A) entered into an Agreement with Jiahetai Co. (as Party B), under which they mainly agreed that: … 2. Area to be developed: located at 48 Xiyi Alley, Bingzhou South Road, Taiyuan City, No. 0068 (2001) of the Planning Bureau of Bingzhou, about 232 meters from north to south and 221 meters from west to east, occupying about 64.5 mu, except the boiler house at the southwest corner, existing buildings at the northwest corner and an area of 0.5 mu or so reserved for the transformer house. 3. Rights and obligations of both parties: (1) Taizhong Co. should be responsible for the demolition and relocation of the old houses on the aforesaid land; (2) Taizhong Co. should be responsible for the “three supplies and land leveling”, which should be completed on the land west to the arterial road before June 10, 2002 and on the rest of the land before November 30, 2002; (3) before the completion of formalities for transfer of land use right, Taizhong Co. should assist Jiahetai Co. in handling the formalities for construction of the project; (4) Taizhong Co. should be responsible for the water and power supply during the construction, Jiahetai Co. should pay for the water and power supply monthly, and after the construction of the building was completed, Jiahetai Co. should assume the costs for capacity increment of water and power supply and related facilities; (5) Jiahetai Co. may share in the use of the existing boiler house and transformer house of Taizhong Co., and the costs for capacity increment arising therefrom should be assumed by Jiahetai Co. (any title thereto should be held by Taizhong Co.); (6) Jiahetai Co. should be responsible for the planning, design, application for construction and other work necessary for the development of the project and related costs; (7) Jiahetai Co. should be responsible for raising the project funds, payment, construction and sale after the construction of the building was completed; (8) Taizhong Co. should be responsible for handling the formalities for the assignment of land use right, and Jiahetai Co. should pay Taizhong Co. the land assignment cost and other relevant assignment expenses according to the agreed manner and time of payment under the Contract on Assignment of Right to Use State-owned Land signed by Taizhong Co. and the land administration department, which should be then paid by Taizhong Co. to the relevant government department; (9) after Taizhong Co. had handled the formalities for land use right assignment and Jiahetai Co. had fully paid the land compensation fund to Taizhong Co., Taizhong Co. should handle the formalities for transfer of land use right for Jiahetai Co., and the transfer fees should be assumed by Jiahetai Co.; (10) to obtain the land use right, Jiahetai Co. should pay Taizhong Co. a land compensation fund of 940,000 yuan per mu (excluding the land assignment cost and related taxes and fees); (11) Taizhong Co. may preempt the shops and housing units after completion of construction at prices fixed by Jiahetai Co.; (12) if Taizhong Co. needed to build housing for employees within the developed area under this agreement, the floor space of which should be deducted from the total area; and (13) all taxes and fees occurring in the sale of buildings by Jiahetai Co. should be solely assumed by Jiahetai Co. 4. Type of payment: (1) within two days after signing the agreement, Jiahetai Co. should pay Taizhong Co. a land compensation fund of 5 million yuan, and within ten days, should pay 15 million yuan; (2) within ten days after Taizhong Co. signed a contract on assignment of land use right with the land administration department, Jiahetai Co. should pay Taizhong Co. the land assignment cost to Taizhong Co. according to the proportion and amount fixed by that contract; and (3) after completing the assignment of land use right and having acquired the right to use the state-owned land, Taizhong Co. should conclude a contract on transfer of the land use right with Jiahetai Co., within ten days after this contract was approved by the Bureau of Land Administration, Jiahetai Co. should pay the rest of the land compensation fund, and after receiving the land compensation fund, Taizhong Co. should hand over the land certificate and the approved agreement on transfer of the land use right to Jiahetai Co. for handling the transfer formalities. 5. Liability for breach of contract: (1) before the completion of the land transfer formalities, if Taizhong Co. failed to perform the “three supplies and leveling” as scheduled in Article 3 (2) of this agreement, it should compensate Jiahetai Co. for losses caused by stand-down in an amount at a rate of 0.04% per day of the payments already made by Jiahetai Co., and if it still failed to do so for three months or more, Jiahetai Co. should be entitled to rescind the agreement, and Taizhong Co. should refund the received payments; (2) if Jiahetai Co. failed to make a payment at the agreed time in Article 4 of this agreement, it should compensate Taizhong Co. in an amount at a rate of 0.04% per day of the payment to be made in this Article, and if it still failed to do so for three months or more, Taizhong Co. should be entitled to terminate the agreement, and refund all the received payments to Jiahetai Co. except 10% thereof as a compensation to Taizhong Co.; (3) during the period of construction, if the use of water or power could not be guaranteed for reasons of Taizhong Co., Taizhong Co. should compensate Jiahetai Co. for its direct losses incurred; if Jiahetai Co. failed to pay the water or electricity bill and the cost of capacity increment under this agreement, Taizhong Co. should be exempted from liability; and (4) before the completion of the land transfer formalities, if Jiahetai Co. could not timely handle the examination and approval formalities for the construction project for reasons of Taizhong Co., which affected the construction, Taizhong Co. should compensate Jiahetai Co. for its direct losses incurred therefor, but if Jiahetai Co. failed to pay the relevant fees as scheduled in a notice, Taizhong Co. should be exempted from liability. 法定代表人:高志俊,该公司董事长。
On April 2, 2002, Taizhong Co. (as Party A) and Jiahetai Co. (as Party B) entered into a Supplementary Agreement, under which they mainly agreed that: 1. According to the time limit under the original agreement, Jiahetai Co. should pay Taizhong Co. the land compensation fund of 940,000 yuan per mu, and the turnover tax on the amount of 940,000 yuan per mu should be assumed by Taizhong Co. and Jiahetai Co. respectively at the rate of 76% and 24%. The 24% of the turnover tax to be assumed by Jiahetai Co. should be paid at the same time when it paid each installment of the land compensation fund according to the original Agreement, and the actually paid taxes should be disposed according to the principle of “returning the overcharge and making up the shortage” in the proportion agreed on by the two parties. 2. Except the above clause, all the taxes and fees arising out of the performance of the original agreement (including but not limit to the land value-added tax and transaction tax) should be assumed by Jiahetai Co. 3. All the taxes and fees above which had been paid in the name of Taizhong Co. should be fully repaid to Taizhong Co. by Jiahetai Co. 委托代理人:段伟岳,山西德为律师事务所律师。
On September 24, 2002, Taizhong Co. concluded a Contract on Assignment of the Right to Use State-Owned Land (hereafter referred to as the “Assignment Contract”) with the Bureau of Land and Resources of Taiyuan, and Taizhong Co. acquired the land use right. The land in the assignment was confirmed to occupy 42,968.75 square meters (about 64.45 mu). 上诉人山西嘉和泰房地产开发有限公司(以下简称嘉和泰公司)与上诉人太原重型机械(集团)有限公司(以下简称太重公司)土地使用权转让合同纠纷一案,山西省高级人民法院于2007年1月22日作出 (2006)晋民初字第20号民事判决。双方当事人均不服该判决,向本院提起上诉。本院依法组成合议庭,于2007年12月18日开庭审理了本案。嘉和泰公司的委托代理人张刚,太重公司的委托代理人段伟岳到庭参加诉讼。本案现已审理终结。
In December 2002, Taizhong Co. concluded a Contract on Transfer of the Right to Use the Assigned Land of Taiyuan (hereinafter referred to as the “Transfer Contract”), and the major clauses were as follows: Article 7 The unit price for the transfer of the land use right should be 1,223 yuan per square meter, and the total price should be 52,550,800 yuan. Article 8 Taizhong Co. agreed to pay the state the land value-added tax upon transfer according to the stipulation of the original assignment contract. Article 10 Within fifteen days after both parties signed this contract, Jiahetai Co. should handle the relevant formalities and pay the relevant taxes according to the examination and approval opinions of the Department of Real Estate Transaction Management of Taiyuan. Article 11 Within thirty days after signing this contract, both parties should go to the Bureau of Land and Resources of Taiyuan to apply for the registration of modification of land use right. 一审法院经审理查明:2002年3月26日,太重公司(甲方)与嘉和泰公司(乙方)签订《协议书》。其主要内容如下:……(二)开发地段:位于太原市并州南路西一巷48号,并规选字(2001)第0068号规选中,南北约232米,东西约221米,除去其中西南角锅炉房、西北角已有建筑物,并留出变电室位置0.5亩左右,占地约64.5亩。(三)双方权利义务:(1)太重公司负责上述地段的旧屋拆除及安置;(2)太重公司负责三通一平,具体时间为2002年6月10日前为主干道以西地段,2002年11月30日前为剩余地段;(3)在土地转让手续办理完毕之前,太重公司协助嘉和泰公司办理项目的建设手续;(4)太重公司负责嘉和泰公司施工中的水、电供应,费用由嘉和泰公司按月支付,房屋建成后的水电增容及设施费用由嘉和泰公司承担;(5)太重公司现有锅炉房、变电室可与嘉和泰公司共同使用,由此产生的增容费由嘉和泰公司承担(产权归太重公司);(6)嘉和泰公司负责开发项目所需规划、设计、报建等工作及费用;(7)嘉和泰公司负责工程费用筹措、支付、施工及房屋建成后的销售;(8)太重公司负责办理土地出让手续,土地出让金及相关出让费用由嘉和泰公司按太重公司与土地管理部门签署的《国有土地出让合同》约定的付款方式及付款时间支付给太重公司,再由太重公司向政府相关部门缴纳;(9)太重公司土地出让手续办理完毕且嘉和泰公司向太重公司支付全部土地补偿金后,太重公司即为嘉和泰公司办理土地使用权转让手续,转让费用由嘉和泰公司承担;(10)嘉和泰公司为取得土地使用权,向太重公司支付土地补偿金每亩94万元(不含土地出让金及相关税费);(11)建成后的商铺和住宅,太重公司可按嘉和泰公司确定的价格优先购买;(12)如太重公司需在本小区内建设职工住宅,其占地面积从总面积中扣除;(13)嘉和泰公司在售房过程中发生的各类税、费均由嘉和泰公司承担。(四)付款方式:(1)协议签订后两日内,嘉和泰公司向太重公司支付土地补偿金500万元,十日内支付1500万元;(2)太重公司与土地部门签订土地出让合同后十日内,嘉和泰公司按该合同确定的土地出让金比例和数额向太重公司支付该笔款项;(3)太重公司土地出让完毕,且已取得国有土地使用权后,太重公司与嘉和泰公司签订该土地使用权转让合同,此合同一经土地局批准十日内,嘉和泰公司支付剩余的土地补偿金,太重公司收到土地补偿金后,将土地证及已批准的土地使用权转让协议交由嘉和泰公司办理过户手续。(五)违约责任:(1)在土地转让手续办理完毕前,太重公司如未按本协议第三条第二项约定时间实现三通一平,应按嘉和泰公司已付款额,以每日万分之四计息赔偿待工损失,超过三个月仍无法实现约定条款,嘉和泰公司有权解除协议,太重公司须退还所收款项。(2)嘉和泰公司未按本协议第四条约定时间向太重公司支付该条约定款项,按该条应支付款项,每超过一日按万分之四计息补偿给太重公司,如超过约定时间三个月后仍不能支付,太重公司有权终止协议,除留下已付款的10%作为对太重公司补偿外,其余款项退回嘉和泰公司。(3)施工期间,如因太重公司原因不能保证用水、用电,太重公司应赔偿嘉和泰公司因此所遭受的直接损失;嘉和泰公司未按本协议约定支付水、电及增容费用,太重公司免除责任。(4)在土地转让手续办理完毕之前,因太重公司原因,嘉和泰公司未能及时办理工程项目审批手续,影响施工,太重公司须赔偿因此给嘉和泰公司造成的直接损失,但由于嘉和泰公司未按通知如期支付相关费用,太重公司免除责任。
Under Article 4 (1) of the Agreement: within two days after concluding this Agreement, Jiahetai Co. should pay the land compensation fund of 5,000,000 yuan, and within ten days, pay the land compensation fund of 15,000,000 yuan. On April 2, 2002, Jiahetai Co. paid the land compensation fund of 20,000,000 yuan by means of acceptance bill to Taizhong Co. (this acceptance bill was valid until September 2002). 2002年4月2日,太重公司(甲方)与嘉和泰公司(乙方)签订《补充协议》。其主要内容如下:(一)按原订协议的期限,嘉和泰公司按每亩94万元向太重公司支付土地补偿金,94万元/亩中的流转税按太重公司76%,嘉和泰公司24%的比例承担。嘉和泰公司承担的24%流转税款按原《协议书》约定在嘉和泰公司支付每期土地补偿金的同时一并支付,最终以实际交付的税款按双方约定的比例多退少补。(二)除以上1条以外,原协议履行过程中的所有各项税费(包括土地增值税、交易税等,但不限于此)均由嘉和泰公司承担。(三)以上各项税费凡以太重公司名义缴纳的,须由嘉和泰公司如数支付给太重公司。
On October 30, 2002, Jiahetai Co. paid Taizhong Co. the land compensation fund of 2,500,000 yuan by means of cheque. 2002年9月24日,太重公司与太原市国土资源局签订《国有土地使用权出让合同》(以下简称《出让合同》),太重公司取得了该宗土地的使用权。确认出让土地面积为42968.75平方米(约64.45亩)。
Under Article 4 (3) of the Agreement: after acquiring the right to use the assigned state-owned land, Taizhong Co. should conclude a contract on the transfer of the land use right (in the text format set by the bureau of land), and within ten days after this contract was approved by the bureau of land, Jiahetai Co. should pay the rest of the land compensation fund. In December 2002, Taizhong Co. concluded a transfer contract with Jiahetai Co., and on January 20, 2003, Jiahetai Co. paid the land compensation fund of 20,000,000 yuan to Taizhong Co. by means of acceptance bill. 2002年12月,太重公司与嘉和泰公司签订《太原市出让土地使用权转让合同书》(以下简称《转让合同》)。该合同主要内容如下:第7条土地使用权转让价格为每平方米1223元,总额为5255.08万元。第8条太重公司同意按原出让合同规定向国家交纳转让时的土地增值税。第10条双方在本合同签订十五日内,由嘉和泰公司按太原市地产交易管理所审批意见,办理有关手续,交纳有关税费。第11条双方在本合同签订后三十日内到太原市国土资源局申请土地使用权变更登记。
On January 5, August 19, August 29 and September 22, 2005, Jiahetai Co. paid a total of 3,300,000 yuan of the land compensation fund in four times to Taizhong Co. by means of cheque and cash. 根据《协议书》第四条1约定:本协议签订后两日内,嘉和泰公司支付土地补偿金500万元,十日内支付土地补偿金1500万元。2002年4月2日,嘉和泰公司以承兑汇票方式向太重公司支付土地补偿金 2000万元(该承兑汇票2002年9月到期)。
In sum, Jiahetai Co. totally paid 45,800,000 yuan of the land compensation fund by means of acceptance bill, cheque and cash, and the rest of it was unpaid. 2002年10月30日,嘉和泰公司以支票方式向太重公司支付土地补偿金250万元。
Under Article 8 (3) of the Agreement: Taizhong Co. should be responsible for handling the formalities for land assignment, and Jiahetai Co. should pay Taizhong Co. the land assignment cost and the relevant assignment expenses in the manner and at the time of payment as agreed on in the Assignment Contract concluded by Taizhong Co. and the department of land administration. Under Article 4 (2) of the Agreement, both parties agreed that: within ten days after Taizhong Co. concluded the contract on assignment of land use right with the department of land administration, Jiahetai Co. should make payment to Taizhong Co. in the proportion and amount of land assignment cost fixed in the contract. 根据《协议书》第四条3约定:太重公司取得国有出让土地使用权后,由太重公司与嘉和泰公司签订该土地使用权转让合同(按土地局规定文本),此合同一经土地局批准十日内,嘉和泰公司即支付剩余的土地补偿金。2002年12月,太重公司与嘉和泰公司签订《转让合同》,2003年1月20日,嘉和泰公司以承兑汇票方式向太重公司支付土地补偿金2000万元。
On September 24, 2002, Taizhong Co. concluded the Assignment Contract with the Bureau of Land and Resources of Taiyuan. On August 12, 2002, Jiahetai Co. paid Taizhong Co. 10,000,000 yuan of the land assignment cost by means of acceptance bill (this acceptance bill was valid until February 2003). On September 23, 2002, Jiahetai Co. paid Taizhong Co. 500,000 yuan of the land assignment cost by means of cable transfer. Jiahetai Co. totally paid 10,500,000 yuan of the land assignment cost to Taizhong Co. 2005年1月5日、8月19日、8月29日、9月22日,嘉和泰公司以支票、现金方式,四次向太重公司支付土地补偿金330万元。
On January 15, 2003, Taizhong Co. and Jiahetai Co. acquired the authentication document for the transfer of right to use state-owned land. In January 2003, Jiahetai Co. acquired the certificate of use of state-owned land for the land at issue after handling the formalities for registration of modification of right. 综上,嘉和泰公司以承兑汇票、支票、现金方式共支付土地补偿金4580万元,余款未付。
According to the provisions of the Agreement and the Supplementary Agreement on the assumption of relevant taxes and fees, Jiahetai Co. still owed Taizhong Co. various taxes and fees. 根据《协议书》第三条8约定:太重公司负责办理土地出让手续,土地出让金及相关出让费用由嘉和泰公司按太重公司与土地管理部门签署的《出让合同》约定的付款方式和付款时间支付给太重公司。《协议书》第四条2约定:太重公司与土地管理部门签订土地出让合同十日内,嘉和泰公司应按该合同确定的土地出让金比例和数额向太重公司支付该笔款项。
The court of the first instance also found that: on December 31, 2002, Jiahetai Co. paid the Bureau of Land and Resources of Taiyuan 3,867,200 yuan of the land assignment cost. 2002年9月24日太重公司和太原市国土资源局签订《出让合同》。2002年8月12日嘉和泰公司以承兑汇票方式向太重公司支付土地出让金 1000万元(该承兑汇票2003年2月到期)。2002年9月23日嘉和泰公司以电汇方式向太重公司支付土地出让金50万元。嘉和泰公司合计向太重公司支付土地出让金1050万元。
The court of the first instance also found that: Taizhong Co. had paid the deed tax of 412,500 yuan; it had declared the business tax of 2,812,500 yuan and actually paid 2,425,260 yuan. 2003年1月15日,太重公司与嘉和泰公司取得国有土地使用权转让鉴证单。双方通过办理权属变更登记手续,嘉和泰公司于2003年1月取得该宗土地的国有土地使用证。
The court of the first instance also found that: the domicile of Jiahetai Co. had been changed from 48 Xiyi Alley, South Road of Bingzhou, Taiyuan City to 10 Xiyi Alley, South Road of Bingzhou, Taiyuan City. 按照《协议书》和《补充协议》有关税费承担的约定,嘉和泰公司尚欠太重公司各种税金。
On January 16, 2006, Taizhong Co. instituted an action in the court of the first instance, claiming that: on March 16, 2002, it concluded the Agreement with Jiahetai Co., under which they clearly agreed on the issues concerning the compensation for demolition and relocation on the land (located at 48 Xiyi Alley, South Road of Bingzhou, Taiyuan City) transferred by Taizhong Co. to Jiahetai Co. On April 2, 2002, they concluded the Supplementary Agreement, which further clarified the relevant issues concerning the assumption of relevant taxes and fees in the Agreement. After the conclusion of the contract, Taizhong Co. performed the contract accordingly, while Jiahetai Co. only paid the land compensation fund of 45,597,000 yuan and still owed Taizhong Co. 35,486,271 yuan in total of the land compensation fund and relevant taxes and fees. Jiahetai Co. should pay the owed money and assume the default liability according to the contractual provisions. It requested the court to legally rule that: Jiahetai Co. should immediately pay the land compensation fund and relevant taxes and fees totaling 35,486,271 yuan, the default fine of 7,558,625.6 yuan (up to January 12, 2006) and the default fine until the day of full settlement; Jiahetai Co. should assume all legal costs and attorneys' fees. 一审法院还查明,2002年12月31日,嘉和泰公司向太原市国土资源局支付土地出让金386.72万元。
On August 7, 2006, Taizhong Co. submitted a supplementary bill of complaint to the court of the first instance, claiming that: according to the Transfer Contract concluded by Taizhong Co. and Jiahetai Co., Jiahetai Co. still owed Taizhong Co. the land transfer cost of 52,550,800 yuan. Thus, it added a claim and requested the court to legally order Jiahetai Co. to immediately pay the land transfer cost of 52,550,800 yuan and assume all legal costs. 一审法院另查明,太重公司已缴纳契税41.25万元;已申报营业税281.25万元,实际缴纳营业税242.526万元。
Jiahetai Co. contended that: it did not owe Taizhong Co. any money and the claims of Taizhong Co. should be dismissed. (1) The “land compensation fund” and “the land transfer cost” claimed by Taizhong Co. were appellations of the transfer of the same land in different phases, the substance of which was the transfer price of the land. On March 26, 2002, when the two parties concluded the Agreement, the nature of the land was appropriated land, and the Agreement was made in the name of cooperative development, so the word “compensation fund” was used, and the nature of the Agreement was a contract on the transfer of land use right. In December 2002, the two parties signed the Transfer Contract again on the land at issue, which was approved by the government. This contract was the legal document which ultimately determined the legal relations of transfer of land use right, and the transfer price was 52,550,800 yuan. Jiahetai Co. had overpaid the land transfer price, without arrears. (2) Jiahetai Co. did not owe Taizhong Co. any tax or fee. Under the Transfer Contract, they did not agree that Jiahetai Co. should assume the relevant taxes and fees, and Article 8 of this contract clearly provided that the value-added tax should be paid by Taizhong Co. (3) Jiahetai Co. did not owe Taizhong Co. any money, and Taizhong Co. had no right to claim the so-called default fine. 一审法院再查明,嘉和泰公司住所地由原太原市并州南路西一巷48号变更为太原市并州南路西一巷10号。
PROCEDURAL POSTURE 2006年1月16日,太重公司向一审法院起诉称,2002年3月16日太重公司与嘉和泰公司签订《协议书》,就太重公司向嘉和泰公司转让太原市并州南路西一巷 48号土地拆迁补偿事宜进行了明确约定。 2002年4月2日又签订《补充协议》,就《协议书》中有关税费承担问题进一步明确。合同签订后,太重公司按约履行了合同,而嘉和泰公司只支付了土地补偿金 4559.7万元,尚欠太重公司土地补偿金、相关税费等合计3548.627l万元。嘉和泰公司应支付欠款并对其违约行为按照合同约定承担违约责任。请求依法判令:嘉和泰公司立即支付土地补偿金、相关税费合计 3548.6271万元及违约金755.86256万元 (截止2006年1月12日)及至全部清偿之日止的违约金;嘉和泰公司承担全部诉讼费用及律师费用。
The court of the first instance was of the view that the focal disputes between the two parties were: (1) effectiveness of the Agreement; (2) effectiveness of the Supplementary Agreement; (3) effectiveness of the Transfer Contract; and (4) determination of the amounts having been paid by Jiahetai Co., taxes and default fine. 2006年8月7日,太重公司向一审法院递交补充诉状,称根据太重公司与嘉和泰公司签订的《转让合同》,嘉和泰公司还另外拖欠太重公司土地转让金5255.08万元没有支付。因此增加诉讼请求,请求依法判令嘉和泰公司立即支付土地出让金 5255.08万元并承担全部诉讼费用。
 嘉和泰公司辩称,嘉和泰公司不欠太重公司任何款项,太重公司的诉讼请求应被驳回。(1)太重公司主张的“土地补偿金”与“土地转让金”是转让同一地块的不同阶段的称谓,其实质是土地转让价。2002年3月26日,双方签订《协议书》时土地性质为划拨土地,且协议的名义是合作开发,故使用“补偿金”这一名词,实质是土地使用权转让合同。2002年12月,双方就该地块重新签订了《转让合同》,并经政府批准。该合同是最终确定土地使用权转让法律关系的合法文件,转让价格为5255.08万元。嘉和泰公司已超额支付土地转让款,不存在欠款一说。(2)嘉和泰公司不欠太重公司任何税费。《转让合同》中没有约定由嘉和泰公司负担相关税费,且在该合同第八条明确约定增值税由太重公司负担。(3)嘉和泰公司不欠太重公司任何款,太重公司无权主张所谓的违约金。
1. With regard to the effectiveness of the Agreement, the court of the first instance analyzed it in three aspects: (1) Nature of the Agreement. Taizhong Co. considered that the “land compensation fund” in the Agreement was used for the demolition of overground buildings, settlement of employees, relocation of factories and compensation for overground buildings, and was a concept different from and irreplaceable by the “land transfer cost” in the Transfer Contract. Jiahetai Co. considered that the Agreement was about the cooperative development in name, which, in fact, was the same as the transfer of land use right, though in different phases, and the nature of the Agreement was a contract on transfer of land use right. The court of first instance held that the nature of the Agreement was a contract on transfer of land use right. In view of the contents of the Agreement, it was mainly agreed that: to obtain the right to use the land at issue, Jiahetai Co. should pay the compensation fund of 940,000 yuan per mu to Taizhong Co. The basic contents of the Agreement were not about cooperative development which was characterized by the contribution of land use right, funds and so on as the joint investment, the joint operation and the sharing of profits and risks. According to Article 24 of the Interpretation of the Supreme People's Court on the Application of Law during the Trial of Cases of Contractual Disputes Involving the Right to Use State-owned Land, the Agreement should be deemed as a contract on transfer of land use right. (2) Relations of the Agreement, the Supplementary Agreement and the Transfer contract. Taizhong Co. claimed that the Agreement involved such contents as demolition, relocation, settlement and handling of transfer formalities for the land; the Supplementary Agreement involved the assumption of taxes and fees; and the Transfer Contract was only about the transfer of land use right. The three were not contradictive each other, and the Transfer Contract could not supersede the Agreement and the Supplementary Agreement. Jiahetai Co. argued that the Agreement and the Supplementary Agreement were, in substance, contracts on transfer of land use right without contractual effect, and were finally superseded by the Transfer Contract. The court of first instance held that, in form, the Agreement and the Supplementary Agreement were two contracts which had not been registered for archival purposes and were held by the two parties only. The Transfer Contract was a contract which had been registered for archival purposes. In contents, the Agreement and the Supplementary Agreement provided that the land compensation fund should be 940,000 yuan per mu, i.e. 60,583,000 yuan in total, and the value-added tax of the land and the relevant taxes and fees should be assumed by Jiahetai Co. The Transfer Contract provided that the land transfer cost should be 1,223 yuan per square meter, i.e. 52,550,800 yuan in total, and the value-added tax of the land should be assumed by Taizhong Co. The Transfer Contract had no provisions concerning the rights and obligations, manner of payment, default liabilities, disputes resolution and so on as agreed on in the Agreement. They were two contracts in different forms and with different contents concluded on the same subject matter. Although both represented the true intention of transfer, the Agreement was the contract which was actually performed, while the Transfer contract was only for handling the transfer of right. (3) Effectiveness of the Agreement. Taizhong Co. considered that the Agreement represented the true intention of both parties, did not violate the laws and regulations of the State, and should be a legal and valid contract. Jiahetai Co. argued that the Agreement was about the transfer of appropriated land, violated Article 39 of the Law of the People's Republic of China on Urban Real Estate Administration, and should be a flawed contract in validity to be superseded by the Transfer Contract. The court of the first instance held that the Agreement represented the true intention of both parties, and was also the actually performed contract. The Agreement and the Transfer Contract were two contracts successively concluded on the same subject matter, but the Transfer Contract concluded afterwards did not necessarily supersede the Agreement. The reasons were that: firstly, the Transfer Contract did not abolish the Agreement or the clause on compensation fund of the Agreement, and did not provide that any part of the Agreement which was in conflict with the Transfer Contract should be void; secondly, the Agreement and the Supplementary Agreement provided for the demolition, relocation, settlement, deadline for performance, manner of performance, assumption of default liability, way of dispute settlement and so on, while the Transfer Contract did not have the necessary clauses of a contract concluded on this kind of transaction. According to Article 78 of the Contract Law of the People's Republic of China, it should be inferred that no modification occurred. Thirdly, the Agreement did not violate the laws and regulations of the State. When Taizhong Co. concluded the Agreement with Jiahetai Co., the land was appropriated land, but during the two parties' performance of contract and with the approval of the administrative department of the government, the right to use the appropriated land had changed into the right to use the assigned land, which did not fall under any of the circumstances of void contract as set out in Article 52 of the Contract Law of the People's Republic of China人丑就要多读书. According to Article 11 of the Interpretation of the Supreme People's Court on the Application of Law during the Trial of Cases of Contractual Disputes Involving the Right to Use State-owned Land, the Agreement should be deemed as legal and valid. 
 一审法院认为,双方当事人争议的主要焦点是:(一)《协议书》的效力问题;(二)《补充协议》的效力问题;(三)《转让合同》的效力问题;(四)嘉和泰公司已付价款数额的确定问题、税金问题及违约金问题。
2. With regard to the effectiveness of the Supplementary Agreement, Taizhong Co. considered that the Supplementary Agreement was legal and valid. Jiahetai Co. contended that the Supplementary Agreement was also a flawed contract in validity and had been superseded by the Transfer Contract. The court of the first instance held that: on the basis of the Agreement, the two parties concluded the Supplementary Agreement to clarify the matters such as amounts of the value-added tax of land and the turnover tax and manners of performance, the contents of which did not conflict with those of the Agreement, and the Supplementary Agreement and the Agreement together constituted the complete contractual contents as a whole. According to Article 61 of the Contract Law of the People's Republic of China, the contents of the Supplementary Agreement were a supplement to the Agreement. It could be affirmed that the Supplementary Agreement had the same legal effect as the Agreement. 
 (一)关于《协议书》的效力问题。一审法院从三个方面分析《协议书》的效力:1.《协议书》的性质。太重公司认为《协议书》约定的土地补偿金,系用于地上房屋拆迁、职工安置、工厂搬迁及地上建筑物补偿等,与《转让合同》约定的土地转让金,是两个概念,无法替代。嘉和泰公司认为《协议书》名为合作开发,实际是不同时期转让土地使用权的同一称谓,《协议书》的实质为土地使用权转让合同。一审法院认为,《协议书》的性质是土地使用权转让合同。就《协议书》内容看,主要是约定嘉和泰公司为取得该宗土地使用权,向太重公司支付94万元/亩的补偿金。并非以提供土地使用权、资金等作为共同投资,共同经营,共享利润、共担风险合作开发为基本内容。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》第二十四条规定,应当认定为土地使用权转让合同。2.《协议书》、《补充协议》和《转让合同》的关系。太重公司认为《协议书》涉及土地的拆迁、安置、办理出让手续等内容;《补充协议》涉及税费承担问题;《转让合同》仅是土地使用权的转让。三者之间不存在矛盾,《转让合同》不能取代《协议书》和《补充协议》。嘉和泰公司认为《协议书》和《补充协议》实质是不具合同效力的土地使用权转让合同,最终被《转让合同》取代。一审法院认为,从形式上讲,《协议书》和《补充协议》是未经备案登记、仅由双方持有的合同。《转让合同》是经过备案登记的合同。从内容上讲,《协议书》和《补充协议》约定转让土地补偿金94万元/亩,共6058.3万元,土地增值税及相关税费由嘉和泰公司承担。《转让合同》约定土地转让金为每平方米1223元,共5255.08万元,土地增值税由太重公司承担。《协议书》约定的权利、义务,付款方式、违约责任、争议解决方式等条款,在《转让合同》中没有条款约定或者说明。二者是针对同一标的所签订的形式不同、内容也不尽相同的两份合同。虽然都有转让的真实意思表示,但《协议书》是真实履行的合同,而《转让合同》只是用于办理过户之用。3.《协议书》的效力问题。太重公司认为《协议书》是双方真实意思表示,不违反国家法律法规,是合法有效的合同。嘉和泰公司认为《协议书》是转让划拨土地,违反《中华人民共和国城市房地产管理法》第三十九条规定,是效力瑕疵合同,被《转让合同》取代。一审法院认为,《协议书》是双方当事人真实的意思表示,也是实际真正履行的合同。《协议书》和《转让合同》是对同一标的所签的先后两份合同,但后签订的《转让合同》并不当然取代《协议书》。因为:一是《转让合同》未废止《协议书》及《协议书》中约定的补偿金条款,也未约定《协议书》与《转让合同》相抵触的部分无效;二是《协议书》和《补充协议》约定了包括拆迁、安置、履行期限、履行方式、违约责任承担、纠纷解决方式等内容,《转让合同》不具备该类交易行为所签合同的必要条款。依照《中华人民共和国合同法》第七十八条规定,应推定为未变更。三是《协议书》不违反国家法律、法规。太重公司与嘉和泰公司签订《协议书》时,该土地为划拨用地,但双方在履行合同过程中,在经政府管理部门批准后,该划拨用地使用权已转化为出让土地使用权,不存在《中华人民共和国合同法土豪我们做朋友好不好》第五十二条规定的合同无效的任何一种情形。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》第十一条规定,《协议书》应认定为合法有效。
3. With regard to the effectiveness of the Transfer Contract, Taizhong Co. considered that the Transfer Contract was also legal and valid. Jiahetai Co. argued that the Transfer Contract was the only valid contract. The court of the first instance held that: (1) The land transfer price of 52,550,800 yuan in Article 7 of the Transfer Contract was the price accessed by the bureau of land, was the minimum price indirectly controlled and guided by the land administrative department of the state for the transaction value of the two parties to a land transaction, and did not represent an agreement reached by the two parties. (2) The price agreed on in the Transfer Contract did not correspond with the objective facts. According to the Transfer Contract, the transfer price for the land was 52,550,800 yuan, and the land value-added tax should be assumed by Taizhong Co. Because there was no provision about the relevant taxes and fees, they should be assumed by Taizhong Co. according to legal provisions. Therefore, when Taizhong Co. obtained the income of 52,550,800 yuan, it need pay the state the land assignment cost of 14,179,700 yuan, land value-added tax and other relevant taxes and fees, and should be responsible for the demolition, relocation and settlement, and the assessed price for the buildings on this land was 10,412,171 yuan. Obviously, Taizhong Co.'s transfer of this land at a price of 52,550,800 yuan did not correspond with the objective facts and the true agreement. (3) According to the price of 52,550,800 yuan agreed on in the Transfer Contract, the payments made by Jiahetai Co. were contrary to the common sense. Under the circumstance that Jiahetai Co. had paid 33,000,000 yuan, it should only need to pay Taizhong Co. 19,550,800 yuan. However, it paid 20,000,000 yuan on January 20, 2003, and after obtaining the certificate of land use and considering that it had overpaid, on January 5, August 19, August 29 and September 22, 2005, paid Taizhong Co. a total of 3,300,000 yuan in four times, which was obviously contrary to common sense. (4) Some major clauses of the Transfer Contract were useless. For example, Article 8 of the Transfer Contract provided that: Taizhong Co. agreed to pay the land value-added tax to the State according to the provisions of the original assignment contract, but the original assignment contract did not have any provision about paying the land value-added tax. (5) The Transfer Contract did not provided for matters such as delivery of land, payment of price, default liability and way of dispute settlement, and had no necessary clauses of a contract on transfer of land use right, which did not conform to the common trade habits. (6) According to Article 4 (3) of the Agreement: after completing the assignment of land and acquiring the right to use the assigned state-owned land, Taizhong Co. should conclude a contract on the transfer of the right to use the land with Jiahetai Co. (in the text format set by the bureau of land), Jiahetai Co. should pay the rest of the land compensation fund to Taizhong Co. within ten days after this contract was approved by the bureau of land, and after obtaining the land compensation fund, Taizhong Co. should give the land certificate and the approved agreement on transfer of land use right to Jiahetai Co. for handling the transfer formalities. Article 3 (8) of the Agreement provided that: the standard of the assignment cost should be the most favorable price standard enjoyable by Taizhong Co. in policy. Obviously, both parties had the consensus to reasonably reduce the land transfer cost. It could be inferred that the Transfer Contract was made for performing the formalities for approval of the land bureau in the text format set by the land bureau. The two parties agreed on the transfer price of 52,550,800 yuan simply for the purpose of declaring fewer taxes, rather than changing the transfer price agreed on originally. Therefore, the provisions of the Transfer Contract on the transfer price and land value-added tax did not represent the true will of the parties, and for this kind of clauses could only reduce the taxation of the state, they should be deemed as void. The rest of the clauses of the Transfer Contract were basically coincidental with the contents of the former agreement, represented the true will of the parties, and were examined by the land administrative department. Because the registration of modification of land right had been made, and they had been actually performed by the two parties, they should be valid clauses. 
 (二)关于《补充协议》的效力问题。太重公司认为《补充协议》合法有效。嘉和泰公司认为《补充协议》同样是效力瑕疵合同,已被《转让合同》取代。一审法院认为,双方在《协议书》的基础上,签订《补充协议》,对土地增值税、流转税的金额及履行方式等进行了明确约定,其内容与《协议书》内容并不冲突,与《协议书》的内容共同构成完整的合同内容,二者是同一的关系。根据《中华人民共和国合同法》第六十一条规定,该《补充协议》的内容是对《协议书》内容的补充。可以确认《补充协议》与《协议书》具有相同的法律效力。
4. With regard to the determination of the amounts having been paid by Jiahetai Co., taxes and default fine. 
 (三)关于《转让合同》的效力问题。太重公司认为《转让合同》也是合法有效的。嘉和泰公司认为《转让合同》是唯一有效合同。一审法院认为,(1)《转让合同》第7条约定的土地转让价格5255.08万元,是国土局的评估价格,是国家土地管理部门对土地交易双方成交价格进行间接调控和引导的最低限价,并非双方达成合意的表示。 (2)《转让合同》约定的价格不符合客观事实,按照《转让合同》约定,该宗土地价格为 5255.08万元,土地增值税由太重公司承担,相关税费没有约定,按规定由太重公司承担。则太重公司在取得5255.08万元收入时,需向国家交纳土地出让金1417.97万元,需向国家交纳土地增值税及其他相关税费,还要负责拆迁、安置,且该宗土地上建筑物评估价为1041.2171万元。显然,太重公司以5255.08万元转让该宗土地与客观事实和真实合意不符。(3)按照《转让合同》约定的价款5255.08万元,嘉和泰公司的支付有悖常理。嘉和泰公司在已支付 3300万元前提下,只应向太重公司支付 1955.08万元。但嘉和泰公司于2003年1月20日支付了2000万元,在取得土地使用证,认为已超额支付的情况下,又于 2005年1月5日、8月19日、8月29日、9月22日四次向太重公司共付款330万元,显然与常理不符。(4)《转让合同》约定的重要条款形同虚设。《转让合同》第8条约定:太重公司同意按原出让合同规定向国家交纳土地增值税。但原出让合同中并无交纳土地增值税的约定。(5)《转让合同》没有约定土地交付、价款支付、违约责任、纠纷解决方式等内容,不具备土地使用权转让合同的必要条款,不符合一般的交易习惯。 (6)按照《协议书》第四条3约定:太重公司土地出让完毕,且已取得国有出让土地使用权后,与嘉和泰公司签订该土地使用权转让合同(按土地局规定文本),此合同一经土地局批准十日内,即由嘉和泰公司向太重公司支付剩余的土地补偿金,太重公司收到土地补偿金后,将土地证及已批准的土地使用权转让协议交由嘉和泰公司办理过户手续。《协议书》第三条8约定:出让费标准为太重公司在政策中能享受到的最优惠的价格标准。显然双方存在合理减少土地转让费的合意。由此可以推断,《转让合同》是按照土地局规定文本,为履行土地局的批准手续而作出的。双方将转让价格约定为5255.08万元,是为了少报纳税金额,而非变更原约定的转让价格。因此,《转让合同》中关于转让价格及土地增值税的约定并非双方当事人真实意思表示,该类条款只会使国家税款减少,因此该类条款应认定无效。其余条款与以前协议内容基本竞合,是双方当事人的真实意思表示,且经土地管理部门审查,并作了土地权属变更登记,双方已实际履行,为有效条款。
(1) With regard to the amount of land compensation fund having been paid by Jiahetai Co., Taizhong Co. and Jiahetai Co. had different opinions on two issues: one was on the acceptance bill. Taizhong Co. claimed that discount interest should be deducted from the acceptance bill of 20,000,000 yuan on April 2, 2002 and of 10,000,000 yuan on August 12; Jiahetai Co. argued that the received amount and the amount on the receipt should prevail. The court of the first instance held that: under the circumstance that the two parties did not clearly agree on the manner of payment, it was not improper for Jiahetai Co. to pay by means of acceptance bill, and Taizhong Co. had no demur after receiving the acceptance bill. The claim of Taizhong Co. for deduction of discount interest should not be supported. The other issue was on the land assignment cost of 3,867,200 yuan collected by the Bureau of Land and Resources. Jiahetai Co. considered that the assignment cost of 3,867,200 yuan paid by it to the Bureau of Land and Resources should be counted in the amount of land compensation fund collected by Taizhong Co. The court of the first instance held that the sale of the land by Taizhong Co. was aimed at obtaining the proceeds of land compensation fund of 940,000 yuan per mu, i.e. 60,583,000 yuan in total, and all other expenses should be paid by Jiahetai Co. Article 3 (9) of the Agreement provided that: after Taizhong Co. had completed the formalities for land assignment and Jiahetai Co. had fully paid the land compensation fund, Taizhong Co. should handle the formalities for transfer of land use right for Jiahetai Co., and the transfer fee should be assumed by Jiahetai Co. Therefore, the assignment cost should not be counted in the compensation fund collected by Taizhong Co. 
According to the provisions of the Agreement, Jiahetai Co. should pay Taizhong Co. the land compensation fund of 60,583,000 yuan, of which it had already paid 45,800,000 yuan and still owed Taizhong Co. 14,783,000 yuan. (四)关于嘉和泰公司已付价款数额的确定问题、税金问题及违约金问题。
 (1)嘉和泰公司已付土地补偿金数额的问题。太重公司和嘉和泰公司对已付款有两个问题意见不同:一是承兑汇票。太重公司认为2002年4月2日2000万元和8月12日1000万元承兑汇票应当扣除贴现利息;嘉和泰公司认为应以收款金额和收据金额为准。一审法院认为,在双方未就付款方式作出明确约定情况下,嘉和泰公司以承兑汇票方式付款并无不妥,太重公司收取承兑汇票后也没有提出异议。对太重公司扣除贴现利息的主张不予支持。二是国土资源局收取的386.72万元土地出让金。嘉和泰公司认为其向国土资源局交纳的386.72万元出让金应计入太重公司收取的土地补偿金数额。一审法院认为,太重公司出售该地,实际就是要取得 94万元/亩,合计6058.3万元的土地补偿金收益,其他一切费用均由嘉和泰公司支付。《协议书》第三条9约定:太重公司土地出让手续办理完毕且嘉和泰公司已支付全部土地补偿金后,太重公司即为嘉和泰公司办理土地使用权转让手续,转让费由嘉和泰公司承担。因此,该笔出让金不应算在太重公司收取的补偿金中。
(2) With regard to the taxes, the two parties agreed in the Supplementary Agreement that: except the turnover tax which should be assumed by Taizhong Co. and Jiahetai Co. at the rate of 76% and 24%, all other taxes and fees should be assumed by Jiahetai Co. Jiahetai Co. considered that the taxpayers of various taxes were specific, and the agreement of both parties was conduct for circumventing the law, which should be void. The court of the first instance held that the agreement of both parties about taxes did not violate the mandatory provisions of laws and regulations. The compensation fund paid by Jiahetai Co. to Taizhong Co. was a price excluding taxes agreed on by them, and the agreement of the two parities that various taxes and fees should be assumed by Jiahetai Co. was legal and valid. However, Taizhong Co. did not pay the land value-added tax and the stamp tax, some of the sales tax was paid, and some of the sales tax did not occur. Taizhong Co. was not entitled to claim against Jiahetai Co. for the unpaid taxes, and after the various taxes actually happened, Taizhong Co. may claim against or institute a separate action against Jiahetai Co. according to the Agreement and the Supplementary Agreement. The deed tax of 412,500 yuan having been paid by Taizhong Co. should be supported. 故按照《协议书》约定,嘉和泰公司应支付太重公司土地补偿金6058.3万元,已支付4580万元,欠付太重公司土地补偿金 1478.3万元。
 (2)税金问题。双方在《补充协议》中约定:除流转税按76%和24%的比例由太重公司和嘉和泰公司承担外,其余所有税费均由嘉和泰公司承担。嘉和泰公司认为,各项税金的纳税主体是明确的,双方的约定是规避法律的行为,应属无效。一审法院认为双方当事人对税金的约定并不违反法律、法规强制性规定。嘉和泰公司向太重公司支付的补偿金是双方约定的不含税价格,双方约定各种税金由嘉和泰公司承担合法有效。但是土地增值税和印花税太重公司并未交纳,营业税部分交纳部分未发生,对于未交纳的税费太重公司没有权利向嘉和泰公司主张,在各税费实际发生后,太重公司可依据《协议书》及《补充协议》向嘉和泰公司主张或另行起诉。对太重公司已缴付的41.25万元契税,予以支持。
(3) With regard to the default fine, the court of the first instance held that: Jiahetai Co.'s failure to fully perform the obligation of payment was caused by the two contracts concluded by both parties, and both parties had faults. Thus, the claim of Taizhong Co. for default fine calculated at a rate of 0.04% per day should not be supported. However, the liability of Jiahetai Co. for delay in payment was obviously heavier than that of Taizhong Co., and the delay in payment had objectively caused losses of interest to Taizhong Co. According to Article 107 of the Contract Law of the People's Republic of China, the loss of interest fell within the liability for breach of contract. Taizhong Co. did not claim the loss of interest, but put forward a request for the default fine. Therefore, Jiahetai Co. should be liable for paying the interest as a result of its delay in payment. (3)违约金问题。一审法院认为嘉和泰公司没有完全履行其付款义务,是基于双方签订了两份合同,双方都有过错,因此对太重公司主张按照日万分之四计算违约金的请求,不予支持。但由于嘉和泰公司迟延付款的责任显然大过太重公司,其迟延付款的行为客观上给太重公司造成了利息损失。依照《中华人民共和国合同法》第一百零七条的规定,利息损失也属违约责任的一种,太重公司虽然未提出利息损失的请求,但提出了违约金请求。因此嘉和泰公司应负担迟延付款的利息。
Hence, according to Article 64 (1) of the Civil Procedure Law of the People's Republic of China and Articles 56, 78, 107 and 109法宝 of the Contract Law of the People's Republic of China, the court of the first instance ruled that: (1) Within thirty days after the judgment took effect, Jiahetai Co. should pay Taizhong Co. the land compensation fund of 14,783,000 yuan and interest thereon (from September 23, 2005 to the day of payment determined by the judgment, calculated on the basis of 14,783,000 yuan according to the loan interest rate in the same period of the People's Bank of China). (2) Within thirty days after the judgment took effect, Jiahetai Co. should pay Taizhong Co. the deed tax of 412,500 yuan. (3) Other claims of Taizhong Co. should be dismissed. Of the case acceptance fee of 517,988 yuan, the preservation fee of 265,000 yuan and other legal costs of 45,000 yuan, Taizhong Co. should assume 500,000 yuan and Jiahetai Co. should assume 327,998 yuan. 综上,一审法院依照《中华人民共和国民事诉讼法》第六十四条第一款,《中华人民共和国合同法》第五十六条快醒醒开学了、第七十八条、第一百零七条、第一百零九条之规定,判决:(一)嘉和泰公司于判决生效后三十日内向太重公司支付土地补偿金1478.3万元及利息(自2005年9月23日起至判决确定的支付之日,以1478.3万元为基数,按照中国人民银行同期贷款利率计算)。(二)嘉和泰公司于判决生效后三十日内,向太重公司支付契税41.25万元。(三)驳回太重公司的其他诉讼请求。案件受理费51.7998万元,保全费26.5万元,其他诉讼费4.5万元,由太重公司负担50万元,由嘉和泰公司负担32.7998万元。
Dissatisfied with the judgment of the first instance, Jiahetai Co. appealed to this court, requesting that: (1) the judgment of the first instance be revoked and a judgment be made according to law to dismiss all claims of Taizhong Co., and (2) the legal costs for the trials of the first and second instances be assumed by Taizhong Co. The facts and grounds were as follows: (1) With regard to the effectiveness of the Transfer Contract, the Transfer Contract represented the true will of the parties, conformed to the provisions of laws, was approved by the government, and was the legal document finally determining the legal relations of transfer of land use right between the two parties, and the land price should follow the provision of the Transfer contract. Jiahetai Co. had fully performed its obligations as agreed on, and did not have any conduct of delay in payment. It was wrong for the court of the first instance to rule that Jiahetai Co. should assume liabilities. (2) With regard to the effectiveness of the Agreement and the Supplementary Agreement, when they were concluded, the land at issue was administratively appropriated land. According to the legal provisions, Taizhong Co. was not entitled to transfer the land, and the agreement should be void. After the formalities for assignment had been handled, the effectiveness of the Agreement was redressed, and it started to take effect. Although the Agreement became effective, the fact was that it was congenitally deficient and needed to be gradually legalized during the performance. The Agreement was a preparation for the Transfer Contract, and was finally superseded by the Transfer Contract. (3) The judgment of the first instance determined that “the Agreement and the Transfer Contract are a new and an old contract concluded on the same subject matter.” Under the circumstances, according to the general theory of the contract law, the effect of the latter contract (the Transfer Contract) should prevail over the former contract (the Agreement), and the effect of the contract approved by the government certainly prevailed over the contract without such an approval. (4) Where any provisions of the Transfer Contract and the Agreement were in conflict, the Transfer Contract should prevail. Compared with the Agreement, the Transfer Contract had made changes to such aspects as range, area and price of transfer and assumption of the value-added tax, and thus, certainly, the Transfer Contract should be followed. (5) The provisions of the Supplementary Agreement on the assumption of taxes and fees violated the mandatory provisions of tax law. Even if valid, the provisions on the burden of the value-added tax were unfair. The taxpayer of the value-added tax should be the transfer, not the transferee, so the Transfer Contract made a change that the value-added tax should be assumed by Taizhong Co. (6) the judgment of the first instance was wrong in the determination of the amounts having been paid by Jiahetai Co., and the assignment cost of 3,867,200 yuan paid by Jiahetai Co. on behalf of Taizhong Co. should be counted in the paid amount. (7) The overpayment of 3,300,000 yuan after 2005 was made under the necessary of urging Taizhong Co. to fully perform the obligation of land delivery. (8) Even if the judgment of the first instance was correct, the division of legal costs violated the measures for litigation fees and costs of the People's Court, and the proportion that Jiahetai Co. should be bear had been exceeded. 嘉和泰公司不服一审判决,向本院提起上诉,请求:1.撤销一审判决,依法改判驳回太重公司的诉讼请求;2.一、二审诉讼费用由太重公司承担。事实和理由如下: (1)关于《转让合同》的效力。《转让合同》是双方当事人真实意思表示,符合法律规定,并经政府批准,是最终确定双方土地使用权转让法律关系的合法文件,土地价格应以《转让合同》的约定为准。嘉和泰公司已按约定履行完毕自己的义务,不存在拖欠款项的行为,一审判决嘉和泰公司承担责任是错误的。(2)关于《协议书》和《补充协议》的效力。《协议书》和《补充协议》签订时,该宗土地为行政划拨地。根据法律规定,太重公司无权转让该宗土地,应属无效协议。在办理出让手续后,《协议书》的效力才得到补正,才发生法律效力。虽然该协议有效了,但它先天不足是事实,需要在履行过程中逐步合法化。《协议书》是《转让合同》的准备,并最终被《转让合同》取代。(3)一审判决认定“《协议书》和《转让合同》是针对同一标的所签订的新旧两份合同”。既然如此,根据合同法的一般原理,后合同 (《转让合同》)的效力应当优于前合同(《协议书》),政府批准的合同效力当然优于未经批准的合同。(4)《转让合同》和《协议书》相冲突的约定,应以《转让合同》为准。与《协议书》相比,《转让合同》在转让范围、面积、价格、增值税负担等方面都发生了变化,当然应以《转让合同》为准。(5)《补充协议》就税费负担所作的约定,违反了税法的强制性规定。即使有效,增值税的负担约定也显失公平。增值税的纳税主体是转让人而非受让人,所以《转让合同》变更增值税由太重公司承担。(6)一审判决认定嘉和泰公司已付价款数额有误,嘉和泰公司代太重公司支付的386.72万元出让金,应计入已付款数额。(7)2005年以后所付330万元是为了促使太重公司履行全面交付土地义务,被迫多付的。(8)假如一审判决结果是正确的,其对诉讼费的分担违背了人民法院诉讼收费办法,超过嘉和泰公司应负担的比例。
With regard to the appeal of Jiahetai Co., Taizhong Co. contended that: (1) There was no basis at all for Jiahetai Co. to claim that the Agreement and the Supplementary Agreement had been superseded by the Transfer Contract, and Jiahetai Co. had seriously distorted the facts. (2) The aim of Jiahetai Co. to demur at the assignment cost and taxes as agreed on was to distort agreement and deny debts. (3) There was no basis for Jiahetai Co. to claim that the assignment cost of 3,867,200 yuan should be assumed by Taizhong Co. 针对嘉和泰公司的上诉,太重公司答辩称,(一)嘉和泰公司主张《转让合同》取代《协议书》和《补充协议》毫无根据且严重歪曲事实。(二)嘉和泰公司对协议约定的出让金和税金提出异议目的是歪曲协议、赖账。(三)嘉和泰公司认为386.72万元出让金应由太重公司承担,没有根据。
Dissatisfied with the judgment of the first instance, Taizhong Co. also appealed to this court, requesting that: (1) the judgment of the first instance be revoked and a judgment be made according to law to support all claims of Taizhong Co. in the trial of the first instance, and (2) the legal costs for the trials of the first and second instances be assumed by Jiahetai Co. The facts and grounds were as follows: (1) It was wrong for the judgment of the first instance not to ascertain the fact that Jiahetai Co. owed the land transfer cost. The Agreement provided that Jiahetai Co. should pay the land compensation fund of 940,000 yuan per mu, which was a compensation to Taizhong Co. for such work as demolition, relocation, settlement and “three supplies and one leveling” on the land and was not the price for land transfer. What was agreed on in the Transfer Contract was the land transfer cost, i.e. the transfer price for the land itself. The provisions of the two contracts did not conflict or overlap, and Jiahetai Co. should perform the corresponding contractual obligations of payment respectively. The contents of the Agreement and the Transfer Contract were independent of each other, and did not overlap, both of which were sealed and signed by both parties. According to the provisions of the Contract Law, both contracts were legally formed and effective. In the two contracts, there were no clauses on negation or modification of each other, and they respectively provided for different rights and obligations for the two parties. (2) There was no basis and it was unfair for the judgment of the first instance judgment to reduce most of the default liability of Jiahetai Co. The judgment of the first instance had determined that the fact that Jiahetai Co. delayed payment of the land compensation fund existed and Jiahetai Co. should perform the obligation of payment, but changed the payment of default fine claimed by Taizhong Co. according to the contractual provisions into the payment of loan interest in the same period and put off the beginning time for calculating the default fine by more than two year and eight months, which were obviously contrary to the contractual provisions and unfair to Taizhong Co. According to Article 4 of the Agreement, within two days after it was signed, Jiahetai Co. should pay the land compensation fund of 5,000,000 yuan, and within ten days, pay 15,000,000 yuan; after Taizhong Co. acquired the right to use the state-owned land, the two parties should conclude a contract on transfer of land use right, and within ten days after the aforesaid contract was approved by the land bureau, Jiahetai Co. should pay the rest of the land compensation fund. Article 5 of it provided that, if Jiahetai Co. did not make the payment as scheduled in Article 4 of the this agreement, it should compensate Taizhong Co. in an amount calculated at 0.04% per day of the due payment in that Article. The aforesaid provisions were clear, definite and legally binding on both parties, and the people's Court should respect the autonomy of will of the parties. According to the Agreement, Jiahetai Co. should pay off the land compensation fund within ten days after the Transfer Contract was approved. Since both parties accepted that the approval date of the Transfer Contract was January 15, 2003, the date for Jiahetai Co. to pay off the land compensation fund should be January 25, 2003. Taizhong Co. calculated the default fine right based on this date, and checked and deducted the several payments of Jiahetai Co. during the period correspondingly, through segment accounting. Up to January 12, 2006, Jiahetai Co. should pay a default fine of 7,558,625.6 yuan. This result of calculation corresponded to not only the contractual provisions but also the objective facts, and should be supported by the court. (3) It was wrong for the judgment of the first instance to dismiss the claim of Taizhong Co. for taxes. Paying taxes according to law was an obligation that an enterprise should assume. Taxes were inevitable costs for Taizhong Co., so Taizhong Co. was certainly entitled to claim them. Whether taxes had happened did not affect Jiahetai Co.'s assumption of contractual obligations. Moreover, the calculation of taxes payable was provided for by the relevant laws and regulations of the state, and the amount of taxes claimed by Taizhong Co. in the action was the result of calculation according to law, which had sufficient legal basis and should be supported. (4) The judgment of the first instance was also wrong in the determination of the amount having been paid by Jiahetai Co. Among the payments made by Jiahetai Co., discount interest of 303,000 yuan should be deducted from the 20,000,000 yuan of acceptance bill on April 2, 2002, and discount interest of 156,000 yuan should be deducted from the 10,000,000 yuan of acceptance bill on August 12. 太重公司不服一审判决,向本院提起上诉,请求:1.撤销一审判决,依法改判支持太重公司一审的全部诉讼请求;2.一、二审诉讼费用均由嘉和泰公司承担。事实和理由是:(1)一审判决对嘉和泰公司欠付土地转让金的事实没有认定是错误的。《协议书》约定嘉和泰公司支付土地补偿金每亩 94万元,是对太重公司进行土地拆迁、安置、三通一平等工作的补偿,而非土地转让价格。《转让合同》约定的是土地转让金,是土地本身的转让价格。两份合同的约定并不矛盾,更不重复,嘉和泰公司应当分别履行相应的合同付款义务。《协议书》与《转让合同》的内容相互独立,没有重复,均有双方当事人的盖章签字。根据《合同法》规定,两份合同均成立并生效。在两份合同中,并没有任何相互否定或者变更的条款,分别构成双方不同的权利义务。(2)一审判决为嘉和泰公司减免大部分违约责任,没有依据,也不公平。一审判决已认定嘉和泰公司拖欠土地补偿金的事实存在,应当履行付款义务,但是将太重公司根据合同约定诉请的违约金改为支付同期贷款利息,并且违约金的起算时间也被推迟了两年零八个月之多,显然不符合约定,对太重公司是不公平的。根据《协议书》第四条约定,协议签订后两日内,嘉和泰公司支付土地补偿金 500万元,十日内支付1500万元;太重公司取得国有土地使用权后,双方签订土地使用权转让合同,此合同经土地局批准十日内,嘉和泰公司支付剩余的土地补偿金。第五条约定,嘉和泰公司未按本协议第四条约定的时间支付该条约定款项,则按该条应支付的款项,每超过一日按万分之四计息补偿给太重公司。以上约定清楚明确,对双方均有法律约束力,人民法院应当尊重当事人的意思自治。按《协议书》约定,嘉和泰公司应在《转让合同》经批准十日内付清土地补偿金。而《转让合同》经批准的时间双方均认可为2003年1月15日,则嘉和泰公司付清土地补偿金的时间应为2003年1月25日。太重公司正是据此计算违约金,并且对嘉和泰公司中间几次还款均相应予以核减,分段计算。截止2006年1月12日,嘉和泰公司应当支付违约金 755.86256万元。这一计算结果既符合合同约定,也符合客观事实,应当得到法院的支持。(3)一审判决驳回太重公司对税金的诉讼请求是错误的。依法纳税是企业应承担的义务,税金对于太重公司是必然发生的费用,太重公司当然有权主张,是否已经发生并不影响嘉和泰公司承担合同义务。而且应纳税款的计算均有国家相关法律法规的规定,太重公司起诉税费金额是依法计算的结果,有充分的法律依据,应当得到支持。(4)一审判决对嘉和泰公司已付款数额认定也存在错误。嘉和泰公司支付的款项中有2002年4月2日2000万元承兑汇票应扣除贴现利息30.3万元;8月12日 1000万元的承兑汇票应扣除贴现利息 15.6万元。
With regard to the appeal of Taizhong Co., Jiahetai Co. contended that: it did not owe Taizhong Co. any payment, and the appeal of Taizhong Co. should be dismissed. (1) The Agreement and the Supplementary Agreement had been superseded by the Transfer Contract. Jiahetai Co. had fully performed the obligation of payment according to the price fixed by the Transfer Contract, and it did not delay any payment. (2) Since Jiahetai Co. had performed all obligations of payment as agreed on and did not owe any payment to Taizhong Co., Taizhong Co. was not entitled to claim the so-called default fine. (3) It was unfounded for Taizhong Co. to claim that Jiahetai Co. should assume all kinds of taxes such as sales tax, deed tax, stamp tax and land value-added tax. After the Transfer Contract superseded the Agreement and the Supplementary Agreement, the Transfer Contract did not provide that the aforesaid taxes should be assumed by Jiahetai Co., and Article 8 of the Transfer Contract clearly provided that the value-added tax should be assumed by Taizhong Co. (4) There was no basis for Taizhong Co. to claim that discount interest should be deducted from the payments already paid. When Jiahetai Co. made payment by an acceptance bill, Taizhong Co. issued a receipt according to the denomination, meaning that it had accepted the non-deduction of discount interest and was therefore no longer entitled to claim deduction. 针对太重公司的上诉,嘉和泰公司答辩称,嘉和泰公司不欠太重公司任何款项,太重公司的上诉请求应被驳回。(一)《协议书》和《补充协议》已被《转让合同》取代。嘉和泰公司已按《转让合同》确定的价格履行完毕付款义务,并无任何拖欠。(二)嘉和泰公司按约履行了全部付款义务,不拖欠太重公司的任何款项,太重公司无权主张所谓的违约金。(三)太重公司主张的各种税费包括营业税、契税、印花税、土地增值税由嘉和泰公司承担不能成立。因为《转让合同》取代《协议书》及《补充协议》后,《转让合同》并没有约定上述税费由嘉和泰公司承担,《转让合同》第8条还明确约定增值税由太重公司承担。(四)太重公司认为已付款中应扣除贴现利息,没有依据。嘉和泰公司支付承兑汇票时,太重公司按票面金额开具了收据,已认可不扣除贴现利息,现在无权主张扣除。
The facts found by this court of the second instance are the same as those of the court of the first instance. 本院二审查明的事实与一审法院查明的事实相同。
In the opinion of this court, both Jiahetai Co. and Taizhong Co. have no demur at the authenticity of the Agreement, the Supplementary Agreement and the Transfer Contract. In view of the appeals of both parties and the facts and grounds, the focal disputes in the trial of the second instance of this case are: (1) effectiveness of the Agreement, the Supplementary Agreement and the Transfer Contract and their relations; (2) amount of land compensation fund already paid by Jiahetai Co.; (3) whether the claim of Taizhong Co. for taxes is tenable; and (4) whether the claim of Taizhong Co. for default fine is tenable. 本院认为,嘉和泰公司和太重公司对于《协议书》、《补充协议》及《转让合同》的真实性均无异议。综合双方当事人的上诉请求及事实和理由,本案二审争议的焦点问题是:(一)《协议书》、《补充协议》和《转让合同》的效力及相互关系问题;(二)嘉和泰公司已付土地补偿金的数额问题;(三)太重公司关于税金的请求是否成立问题; (四)太重公司关于违约金的请求是否成立问题。
1. Effectiveness of the Agreement, the Supplementary Agreement and the Transfer Contract and their relations. (一)关于《协议书》、《补充协议》和《转让合同》的效力及相互关系问题。
Firstly, with regard to the effectiveness of the Agreement and the Supplementary Agreement, Taizhong Co. claimed that the Agreement and the Supplementary Agreement represented the true will of the two parties, did not violate the laws and regulations of the state, and were legal and valid contracts. Jiahetai Co. claimed that when the Agreement was concluded, the land at issue was administratively appropriated land, and according to the legal provisions, Taizhong Co. was not entitled to transfer this land, so the Agreement should be void; and that the provisions on the assumption of taxes and fees of the Supplementary Agreement violated the mandatory provisions of tax law. This court is of the view that the Agreement and the Supplementary Agreement were reached by the two parties on the basis of equality and voluntary consultation, and represented the true will of both parties. The Agreement provided for not only the area and price of the land to be transferred, manner of payment and default liability in detail, but also the specific rights and obligations of both parties and procedures for performance. When concluding the Agreement, both Jiahetai Co. and Taizhong Co. knew that the land belonged in appropriated land, so they agreed in Article 3 (8) of the Agreement that: Taizhong Co. should be responsible for handling the formalities for land assignment; and agreed in Article 3 (9) that: immediately after Taizhong Co. completed the formalities for land assignment, it should handle the formalities for transfer of land use right for Jiahetai Co. Such conduct of conclusion of contract did not circumvent the law or damage the interest of the state, and in fact, Taizhong Co. and Jiahetai Co. completed the transfer of land use right as agreed on above. On September 24, 2002, Taizhong Co. concluded the Assignment Contract with the Bureau of Land and Resources of Taiyuan City, and acquired the right to use this land, and Jiahetai Co. paid the land assignment cost; in December of the same year, Taizhong Co. concluded the Transfer Contract with Jiahetai Co., Jiahetai Co. paid the land transfer cost to the Bureau of Land and Resources of Taiyuan City according to the Agreement, and they completed the registration of modification of land use right afterwards; all the above conduct was real conduct of performing the Agreement of both parties. Article 9 of the Interpretation of the Supreme People's Court on the Application of Law during the Trial of Cases of Contractual Disputes Involving the Right to Use State-owned Land provides that: “Where, before acquiring the certificate of right to use the assigned land, the transferor concludes a contract on the transfer of land use right with the transferee, and before the institution of an action, the transferor has acquired the certificate of right to use the assigned land or the people's government with the approval power has consented to the transfer, the transfer contract shall be deemed as valid.” Therefore, the Agreement should be legal and valid. The Supplementary Agreement supplemented the provisions on the assumption of taxes and fees in respect of the transfer of land use right in the Agreement, and clarified issues on how to assume and who should assume the taxes and fees in respect of the transfer of land use right. Although all tax administration laws and regulations of China clearly prescribe the taxpayers for various taxes, they do not forbid a taxpayer from agreeing with the opposite party to a contract that the opposite party to the contract or a third party should pay the taxes. The provisions of tax law on the tax category, tax rate and tax amount are mandatory, but the tax law does not make mandatory or prohibitive provisions on who should actually pay the tax. Therefore, the provisions on the assumption of taxes in the Supplementary Agreement did not violate the provisions of laws and regulations on tax administration, which should be a legal and valid agreement. The claims of Jiahetai Co. that when concluding the Agreement, the transferred land belonged in appropriated land, Taizhong Co. was not entitled to transfer it, the provisions of the Supplementary Agreement on the assumption of taxes and fees violated the mandatory provisions of tax law, and therefore both agreements should be void are lack of legal basis and should not be supported. It was correct for the court of the first instance to determine that the Agreement was legal and valid and the Supplementary Agreement had the same legal force as the Agreement, which should be maintained. 首先,关于《协议书》、《补充协议》的效力,太重公司认为《协议书》、《补充协议》是双方的真实意思表示,不违反国家法律法规,是合法有效的合同。嘉和泰公司认为《协议书》签订时,该宗土地为行政划拨地,根据法律规定,太重公司无权转让该宗土地,应属无效协议。而《补充协议》就税费负担的约定,违反了税法的强制性规定。本院认为,《协议书》、《补充协议》是双方在平等的基础上,自愿协商达成的协议,是双方真实的意思表示。《协议书》不仅详细的约定了所转让土地的面积、价格、付款方式、违约责任,还具体约定了双方权利义务及履行程序。《协议书》签订时,嘉和泰公司及太重公司均知道该宗土地属于划拨用地,所以在《协议书》第三条8约定:由太重公司负责办理土地出让手续;第三条9约定:太重公司土地出让手续办理完毕,即为嘉和泰公司办理土地使用权转让手续。这一缔约行为并没有规避法律损害国家利益,事实上,太重公司和嘉和泰公司正是按照上述约定完成该宗土地转让的。2002年9月24日太重公司与太原市国土资源局签订《出让合同》,取得该宗土地的使用权,嘉和泰公司支付土地出让金;同年12月太重公司与嘉和泰公司签订《转让合同》,嘉和泰公司依据《协议书》向太原市国土资源局支付土地转让款,随后完成土地使用权变更登记;均是双方履行《协议书》的真实行为。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》第九条规定:“转让方未取得出让土地使用权证书与受让方订立合同转让土地使用权,起诉前转让方已经取得出让土地使用权证书或者有批准权的人民政府同意转让的,应当认定合同有效。”因此,《协议书》合法有效。《补充协议》是对《协议书》约定转让土地使用权的税费承担所作的补充约定,明确了转让土地使用权的税费如何承担及由谁承担的问题。虽然我国税收管理方面的法律法规对于各种税收的征收均明确规定了纳税义务人,但是并未禁止纳税义务人与合同相对人约定由合同相对人或第三人缴纳税款。税法对于税种、税率、税额的规定是强制性的,而对于实际由谁缴纳税款没有作出强制性或禁止性规定。故《补充协议》关于税费负担的约定并不违反税收管理方面的法律法规的规定,属合法有效协议。嘉和泰公司关于《协议书》签订时,所转让的土地属划拨地,太重公司无权转让及《补充协议》就税费负担的约定违反税法的强制性规定,均属无效协议的主张,没有法律依据,不予支持。一审法院关于《协议书》合法有效及《补充协议》与《协议书》具有相同的法律效力的认定是正确的,应予维持。
Secondly, with regard to the validity of the Transfer Contract, Jiahetai Co. claimed that the Transfer Contract represented the true intention of the two parties, conformed to the provisions of law, was approved by the government and was the legal document finally determining the relations of transfer of land use right between the two parties, and the transfer price for the land use right should be subject to the provisions of the Transfer Contract. Taizhong Co. argued that the Transfer Contract was valid and Jiahetai Co. should assume the obligation of paying the land transfer cost in the Transfer Contract. This court is of the view that the reason why Taizhong Co. concluded the Transfer Contract with Jiahetai Co. in addition to the Agreement was that when concluding the Agreement, both parties knew the land to be transferred belonged in the appropriated land which could not be transferred directly. Only after Taizhong Co. completed the formalities for land assignment, acquired the right to use the assigned state-owned land and concluded the contract on transfer of the right to use the assigned state-owned land with Jiahetai Co., and after the two parties went to the land administrative department to complete the registration for archival purposes, could they complete the transfer of land use right. Therefore, for Taizhong Co. and Jiahetai Co., the Transfer Contract only served the purpose of handling the formalities for registration with the land administration department for the record so as to complete the conduct of transfer of land use right in the Agreement, rather than modifying the terms and conditions of the Agreement or constituting new relations of rights and obligations between both parties; for the land administrative department, registering the Transfer Contract for archival purposes meant that the land administrative department accepted the price fixed in the Transfer Contract and collected the taxes and fees in respect of the transfer and handled the relevant formalities accordingly. Although the price in the Transfer Contract was lower than the price actually agreed on by the two parties, the fact that the land administrative department granted the registration for archival purposes indicated that the land administrative department accepted the handling by the two parties of the formalities for transfer of land use right based on this minimum price, and also indicated that this practice of the two parties did not violate the relevant provisions of the land administrative department. In fact, the land administrative department handled the formalities for modification of land right based on the Transfer Contract. Therefore, it may be determined that the Transfer Contract was only for both parties to handle the registration formalities for archival purposes, and its validity was only limited to the registration for archival purpose. For both parties to the contract, the Transfer Contract neither modified the terms and conditions of the Agreement nor constituted new relations of rights and obligations. In terms of the process of payment of land compensation fund by Jiahetai Co. and the amount thereof, it may be proved that after concluding the Transfer Contract, Jiahetai Co. made payments still according to the amount of land compensation fund stipulated in the Agreement. Thus, both the claim of Jiahetai Co. that the price in the Transfer Contract should be taken as the transfer price for land use right in this case and the claim of Taizhong Co. for the additional payment of land transfer cost in the Transfer Contract were inconsistent with the facts of this case and untenable. 其次,关于《转让合同》的效力问题,嘉和泰公司认为,《转让合同》是双方当事人真实意思表示,符合法律规定,并经政府批准,是最终确定双方土地使用权转让关系的合法文件,土地使用权转让价格应以《转让合同》约定为准。太重公司认为,《转让合同》有效,嘉和泰公司应承担《转让合同》约定的支付土地转让金义务。本院认为,太重公司与嘉和泰公司之所以在《协议书》之外又签订《转让合同》,是因为签订《协议书》时,双方当事人均知道所转让的土地属划拨用地,不能直接转让。只有在太重公司办完土地出让手续,取得国有出让土地使用权后,再与嘉和泰公司签订国有出让土地使用权转让合同,并由双方共同到土地管理部门办理登记备案,才能完成该土地使用权转让。因此,《转让合同》对于太重公司及嘉和泰公司来讲就是到土地管理部门办理登记备案手续,以完成《协议书》约定的转让土地使用权行为,而并非为了变更《协议书》的约定条款或者构成双方新的权利义务关系;对于土地管理部门来讲,以《转让合同》登记备案,则表明土地管理部门认可《转让合同》中的价格并据此征收转让税费,办理相关手续。虽然《转让合同》中的价格比双方当事人实际约定的价格低,但土地管理部门给予登记备案的事实表明,土地管理部门认可双方当事人可以此最低价格办理土地使用权转让手续,也表明双方当事人这一做法并不违反土地管理部门的相关规定。事实上,土地管理部门也正是依据该《转让合同》办理了土地权属变更手续。由此可以认定,在本案中《转让合同》仅是双方办理登记备案之用,别无它用,其效力仅及于登记备案。《转让合同》对于合同双方既没有变更《协议书》约定条款,也不构成新的权利义务关系。从嘉和泰公司支付土地补偿金的过程和数额看,也可证明嘉和泰公司在签订《转让合同》后,仍是按《协议书》约定的土地补偿金数额支付的。故嘉和泰公司关于应以《转让合同》中的价格作为本案土地使用权转让价格及太重公司关于以《转让合同》请求另外支付土地转让金的主张,均不符合本案实际情况,没有事实依据,不能成立。
Thirdly, with regard to the relations of the Agreement, the Supplementary Agreement and the Transfer Contract, both parties had no demur at the fact that the Supplementary Agreement was a supplement to the Agreement, but greatly disputed the relationship between the Agreement and the Transfer Contract. Jiahetai Co. considered that the Agreement had been superseded by the Transfer Contract and the Transfer Contract was the only valid contract in this case. Taizhong Co. considered that the land compensation fund in the Agreement was a compensation for demolition, relocation and settlement, the land transfer cost in the Transfer Contract was the transfer price for the land itself, the provisions of the two contracts neither conflicted with each other nor overlapped and the two contracts were independent of each other, legally formed and valid. This court is of the view that the aim of concluding the Transfer Contract by the two parties was to handle the registration formalities for transfer of land use right for archival purposes. The Transfer Contract had no provision on modifying or superseding the Agreement, and did not establish new relations of rights and obligations between the two parties. In view of the actual performance of contract by the two parties, such conduct of Taizhong Co. as transferring the land use right, collecting the land compensation fund, assignment cost and transfer cost, concluding the Assignment Contract with the Bureau of Land and Resources of Taiyuan City, concluding the Transfer Contract with Jiahetai Co. and making registration with the land administrative department was all performance of the rights and obligations stipulated in the Agreement. Such conduct of Jiahetai Co. as paying the land compensation fund, assignment cost and transfer cost and acquiring the land use right was all performance of the rights and obligations stipulated in the Agreement too. Therefore, the Transfer Contract in this case was the contract for archival purposes when the two parties handled the formalities for transfer of land use right at the land administrative department, whereas the Agreement was the actually performed contract. The claims of Jiahetai Co. that the Transfer Contract superseded the Agreement and the Transfer Contract was the only valid contract in this case were untenable. The claims of Taizhong Co. that the Agreement and the Transfer Contract were independent of each other and were both legally formed and valid and Jiahetai Co. should pay the land compensation fund and the land transfer cost respectively were also untenable. 再次,关于《协议书》、《补充协议》与《转让合同》的关系,对于《补充协议》是《协议书》的补充约定双方均无异议,但对于《协议书》与《转让合同》双方争议较大。嘉和泰公司认为,《协议书》已被《转让合同》所取代,《转让合同》是本案唯一有效的合同。太重公司则认为,《协议书》约定的土地补偿金是对拆迁、安置的补偿。《转让合同》约定的土地转让金是土地本身的转让价格,两份合同的约定并不矛盾,也不重复,相互独立,均成立并有效。本院认为,双方当事人签订《转让合同》的目的是为了办理土地使用权转让登记备案手续。《转让合同》没有约定变更或取代《协议书》的条款,并未在双方当事人之间成立新的权利义务关系。从双方当事人实际履行合同的情况看,太重公司转让土地使用权收取土地补偿金、出让金、转让金、太重公司与太原市国土资源局签订《出让合同》及其与嘉和泰公司签订《转让合同》到土地管理部门登记等行为都是在履行《协议书》约定的权利义务。而嘉和泰公司支付土地补偿金、出让金、转让金,取得土地使用权等也是履行《协议书》约定的权利义务。因此,本案中的《转让合同》是双方在土地管理部门办理土地使用权转让手续的备案合同;《协议书》才是双方实际履行的合同。嘉和泰公司关于《转让合同》取代《协议书》,《转让合同》是本案唯一有效合同的主张不能成立。太重公司关于《协议书》和《转让合同》相互独立,均成立有效,并据此要求嘉和泰公司分别支付土地补偿金及土地转让金的主张也不能成立。
To sum up, this court is of the view that both the Agreement and the Supplementary Agreement were legal and valid and were the contractual basis for determining the rights and obligations of the two parties and default liabilities. 综上,本院认为,《协议书》及《补充协议》是合法有效的协议,是确定双方当事人权利义务及违约责任的合同依据。
2. Amount of land compensation fund already paid by Jiahetai Co. (二)嘉和泰公司已付土地补偿金的数额问题。
Taizhong Co. raised no objection to the fact that it had received the land compensation fund of 45,800,000 yuan in total paid by Jiahetai Co. by acceptance bill, cheque and cash. However, it considered that discount interest of 303,000 yuan should be deducted from the 20,000,000 yuan of acceptance bill on April 2, 2002 and discount interest of 156,000 yuan should be deducted from the 10,000,000 yuan of acceptance bill on August 12, 2002. This court is of the view that according to Article 4 (1) of the Agreement concluded by Taizhong Co. and Jiahetai Co., within ten days after the conclusion of the Agreement, Jiahetai Co. should pay the land compensation fund of 20,000,000 yuan. Jiahetai Co. should perform the obligation of payment at the agreed time, but Jiahetai Co. paid the land compensation fund by an acceptance bill of 20,000,000 yuan which would expire in September 2002, causing that Taizhong Co. could not actually receive the money at the agreed time. Taizhong Co. could obtain the aforesaid money at the agreed time only if it paid the discount interest. The conduct of Jiahetai Co. of performing the due obligation of payment by a forward acceptance bill was actually a delay in payment, which was conduct of inappropriate performance of a contractual obligation. The inappropriate performance of a contractual obligation by Jiahetai Co. caused the loss of discount interest of 303,000 yuan to Taizhong Co., which should be assumed by Jiahetai Co. The appellate claim of Taizhong Co. about deducting this discount interest is well-founded and should be supported. The judgment of the first instance was improper in dealing with this claim and should be redressed. The acceptance bill of 10,000,000 yuan on August 12, 2002 was paid for the land assignment cost by Jiahetai Co. according to Article 3(8) of the Agreement. However, since Taizhong Co. did not claim the land assignment cost in the trial of the first instance, the appellate claim of Taizhong Co. about the discount interest on the acceptance bill of 10,000,000 yuan did not fall within the trial range of the court of the second instance. 太重公司对于已收到嘉和泰公司以承兑汇票、支票、现金形式支付的土地补偿金总额4580万元人民币并无异议。但认为其中2002年4月2日2000万元承兑汇票应扣除贴现利息30.3万元及2002年8月12日1000万元承兑汇票应扣除贴现利息 15.6万元。本院认为,根据2002年3月26日太重公司与嘉和泰公司签订的《协议书》第四条1约定,嘉和泰公司在《协议书》签订十日内,应支付土地补偿金2000万元。嘉和泰公司应按约定时间履行付款义务。但嘉和泰公司以2002年9月到期的2000万元承兑汇票支付该笔土地补偿金,导致太重公司不能在约定时间实际收到该款项。太重公司只有支付贴现利息,才能在约定时间取得上述款项。嘉和泰公司这种以远期承兑汇票履行到期付款义务的行为,实际是迟延付款,属于不当履行合同义务的行为。由于嘉和泰公司不当履行合同义务,造成太重公司为此支付30.3万元的贴现利息损失,应由嘉和泰公司承担。太重公司关于扣除该贴现利息的上诉请求成立,应予支持。一审判决对此处理不当,应予纠正。关于2002年8月12日1000万元承兑汇票,是嘉和泰公司依据《协议书》第三条 8的约定支付的土地出让金。而太重公司在一审中并未对土地出让金提出诉讼请求,因此太重公司关于该1000万元承兑汇票的贴现利息的上诉请求不属于本院二审的审理范围。
Jiahetai Co. claimed that the 3,867,200 yuan of land assignment cost paid by it to the Bureau of land and Resources of Taiyuan city on December 31, 2002 should be counted in the amount of land compensation fund having been paid. This court is of the view that the fund was directly paid by Jiahetai Co. to the Bureau of Land and Resources of Taiyuan City after Taizhong Co. and Jiahetai Co. concluded the Transfer Contract in December 2002. According to Article 3 (9) of the Agreement, after Taizhong Co. completed the formalities for assignment of land and Jiahetai Co. fully paid the land compensation fund, Taizhong Co. should handle the formalities for transfer of land use right for Jiahetai Co., and the transfer fee should be assumed by Jiahetai Co. Therefore, this amount was the land transfer cost to be assumed by Jiahetai Co., and should not be counted in the land compensation fund already paid by it. The judgment of the first instance was proper in dealing with this claim and should be sustained in this regard. 嘉和泰公司认为其2002年12月31日向太原市国土资源局支付的386.72万元土地出让金应计入已付土地补偿金数额。本院认为,该笔款项是2002年12月太重公司与嘉和泰公司签订《转让合同》后,由嘉和泰公司直接支付给太原市国土资源局的。依据《协议书》第三条9约定,太重公司土地出让手续办理完毕且嘉和泰公司支付全部土地补偿金后,太重公司即为嘉和泰公司办理土地使用权转让手续,转让费用由嘉和泰公司承担。故该笔款项属于嘉和泰公司应承担的土地转让款,不应计入其已付的土地补偿金数额。一审判决处理适当,应予维持。
To sum up, it was wrong for the judgment of the first instance to hold that Jiahetai Co. had paid the land compensation fund of 45,800,000 yuan and still owed Taizhong Co. the land compensation fund of 14,783,000 yuan, which should be redressed. Jiahetai Co. actually owed Taizhong Co. the land compensation fund of 15,086,000 yuan. 综上,一审判决认定嘉和泰公司已付土地补偿金4580万元,尚欠太重公司土地补偿金1478.3万元有误,应予纠正。嘉和泰公司实欠太重公司土地补偿金1508.6万元。
3. Whether the claim of Taizhong Co. for taxes is tenable. (三)太重公司的税金请求是否成立问题。
According to the provisions of the Supplementary Agreement, except the turnover tax to be assumed by Taizhong Co. and Jiahetai Co. at the rates of 76% and 24% respectively, all taxes and fees should be assumed by Jiahetai Co. As said above, the provisions of the Supplementary Agreement on the assumption of taxes and fees did not violate the provisions of tax administration laws and regulations, it was legal and valid, and the two parties should perform their respective obligations as agreed on. With regard to whether Taizhong Co. was entitled to require Jiahetai Co. to pay the taxes when Taizhong Co. had not paid the taxes, this court is of the view that the provisions of the Supplementary Agreement on the assumption of taxes and fees on transfer of land use right only clarified the issue of who should assume the relevant taxes and fees arising out of the transfer of land use right. With regard to when to pay what kind of taxes and how much to be paid, the Supplementary Agreement did not and could not provide for them. Only after the relevant competent authorities had determined the tax categories and amounts and Taizhong Co. had paid the taxes could Jiahetai Co. pay the taxes. Under the circumstances that Taizhong Co. had not paid the taxes and the relevant department had not determined the amounts of taxes, there was no factual basis for it to require Jiahetai Co. to pay the taxes on the land transfer. It was not improper for the judgment of the first instance to reject the claim of Taizhong Co. that Jiahetai Co. should pay the taxes unpaid by Taizhong Co. and to point out that Taizhong Co. may file separate claims against Jiahetai Co. after having actually paid the taxes, and thus, it should be sustained in this regard. With regard to the sales tax and deed tax already paid by Taizhong Co., it was improper for the judgment of the first instance to support only the claim of Taizhong Co. for deed tax and not to support the claim for sales tax, which should be redressed. With regard to the sales tax of 2,425,260 yuan already paid by Taizhong Co., Jiahetai Co. should assumed 582,062.4 yuan at the rate of 24%. 根据《补充协议》的约定、除流转税按 76%和24%的比例由太重公司和嘉和泰公司分别承担外,其余所有税费均由嘉和泰公司承担。如前所述,《补充协议》关于税费负担的约定并不违反税收管理法律法规的规定,是合法有效协议,双方当事人应按约定履行自己的义务。关于太重公司在没有缴纳税金的情况下是否有权请求嘉和泰公司支付其所承担的税金的问题。本院认为,《补充协议》约定转让土地使用权税费的承担,只是明确了转让土地使用权过程中所发生的相关税费由谁负担的问题。而对于何时缴纳何种税费及缴纳多少税费,《补充协议》没有约定,也无法约定。只有在相关主管部门确定税费种类及额度,太重公司缴纳后,嘉和泰公司才能支付。太重公司在未缴纳税金,也没有相关部门确定纳税数额的情况下,请求嘉和泰公司支付转让土地税金,没有事实依据。一审判决对于太重公司要求嘉和泰公司支付其尚未缴纳的税费的请求不予支持,但提示其在实际缴纳税费后可以向嘉和泰公司另行主张权利的处理,并无不当,应予维持。对太重公司已缴纳的营业税和契税,一审判决只支持太重公司的契税请求而没有支持其关于营业税的请求不当,应予纠正。对于太重公司已缴纳的242.526万元营业税。嘉和泰公司应按24%比例负担58.20624万元。
JUDGMENT'S REASONING 
4. Whether the claim of Taizhong Co. for default fine is tenable. (四)关于太重公司的违约金请求是否成立问题。
This court is of the view that the Agreement clearly provided for the specific rights and obligations of both parties including the time and amount of payment by Jiahetai Co. and the default liability. Both Taizhong Co. and Jiahetai Co. should actually perform the contractual obligations according to the principle of honesty and good faith. Taizhong Co. handled the formalities for land assignment and transfer as agreed on and actually delivered the land at issue to Jiahetai Co. Jiahetai Co. should perform the obligation of payment as agreed on, but after acquiring the land use right, failed to pay the land compensation fund at the time and in the amount as agreed on. Jiahetai Co.'s delay in payment of the land compensation fund to Taizhong Co. was the primary cause of the present lawsuit. Therefore, the conduct of Jiahetai Co. had constituted the breach of contract, and it should assume the default liability under the contract. The judgment of the first instance determined that Jiahetai Co.'s delay in payment had constituted the breach of contract, but rejected the claim of Taizhong Co. for calculating the default fine at the rate of 0.04% in the contract, and changed the calculation of default fine at the rate of 0.04% as agreed on by both parties into the calculation of interest at the bank interest rate. According to the provisions of Article 114 of the Contract Law of the People's Republic of China, with regard to the amount of default fine as agreed on by the parties under a contract, only when a party to the contract requests an adjustment of the amount and the amount is indeed lower or much higher than the losses caused to the party concerned by the default could the people's court make the adjustment. The adjustment made in the judgment of the first instance not only breached the agreement of both parties, but also lacked the legal basis, and should be redressed. The appellate claims of Taizhong Co. that Jiahetai Co. should assume the default liability under the contract and pay the default fine are well-founded and should be supported. Because the last day on which Jiahetai Co. paid the land compensation fund was September 23, 2005, and Taizhong Co. did not require Jiahetai Co. to pay the default fine before that day, Jiahetai Co. should assume the default liability from September 23, 2005. 本院认为,《协议书》对于双方当事人具体的权利义务中包括嘉和泰公司付款时间、数额及违约责任均作出了明确约定。太重公司及嘉和泰公司都应按照诚实、信用原则,实际履行合同义务。太重公司按约定办理了土地出让、转让手续并将涉案地块实际交付给嘉和泰公司。嘉和泰公司应按约定履行付款义务,但嘉和泰公司在取得土地使用权后,未按约定时间及数额支付土地补偿金。嘉和泰公司迟延向太重公司支付土地补偿金是引起本案诉讼的主要原因。因此,嘉和泰公司的行为已构成违约,应按合同约定承担违约责任。一审判决认定嘉和泰公司迟延付款构成违约,但对太重公司按照合同约定的日万分之四的比例计算违约金的请求却未予支持,并将双方当事人按照日万分之四的比例计算违约金的约定调整为按银行利率计算利息。根据《中华人民共和国合同法》第一百一十四之规定,人民法院对于当事人在合同中约定的违约金的数额,只有在当事人请求调整,并确实低于或过分高于违约行为给当事人造成的损失时,才能进行调整。一审判决对违约金的调整既违背当事人双方的约定,也缺少法律依据,应予纠正。太重公司关于嘉和泰公司应按合同约定承担违约责任,支付违约金的上诉请求理据充分,应予支持。因为嘉和泰公司最后支付土地补偿金的时间是2005年9月23日,太重公司此前并未要求嘉和泰公司支付违约金。故嘉和泰公司应从2005年9月23日起承担违约责任。
JUDGMENT 
To conclude, the appellate claims of Jiahetai Co. have no factual and legal basis, and should be rejected. Some appellate claims of Taizhong Co. have factual and legal basis and should be supported, and some have no factual and legal basis and should be rejected. The judgment of the first instance was clear in the fact finding, but was wrong in some application of law, which should be redressed. According to Article 153 (1) (b) of the Civil Procedure Law of the People's Republic of China, this court rules as follows: 综上所述,嘉和泰公司的上诉请求没有事实和法律依据,应予驳回。太重公司的上诉请求,部分有事实和法律依据,应予支持;部分没有事实和法律依据,应予驳回。一审判决认定事实清楚,但适用法律部分有误,应予纠正。根据《中华人民共和国民事诉讼法》第一百五十三条第一款第(二)项之规定,判决如下:
1.. Item (3) of the civil judgment, No. 20 [2006], Civil, First Instance, of the Higher People's Court of Shanxi Province shall be sustained; 一、维持山西省高级人民法院(2006)晋民初字第20号民事判决第三项;
2. Item (1) of the civil judgment, No. 20 [2006], Civil, First Instance, of the Higher People's Court of Shanxi Province shall be changed into: Within thirty days after this judgment enters into force, Shanxi Jiahetai Real Estate Development Co., Ltd. shall pay the land compensation fund of 15,086,000 yuan to Taiyuan Heavy Machinery Group Co., Ltd., and shall pay Taiyuan Heavy Machinery Group Co., Ltd. the default fine calculated at the rate of 0.04% per day according to the actual days of delay in payment until the day of payoff; and 二、变更山西省高级人民法院(2006)晋民初字第20号民事判决第一项为:山西嘉和泰房地产开发有限公司于判决生效后三十日内向太原重型机械(集团)有限公司支付土地补偿金1508.6万元人民币,并从 2005年9月23日起按实际迟延付款天数以日万分之四的比例计算违约金支付给太原重型机械(集团)有限公司直至还清之日止;
3. Item (2) of the civil judgment, No. 20 [2006], Civil, First Instance, of the Higher People's Court of Shanxi Province shall be changed into: Within thirty days after this judgment enters into force, Shanxi Jiahetai Real Estate Development Co., Ltd. shall pay the sales tax of 582,062.4 yuan and deed tax of 412,500 yuan to Taiyuan Heavy Machinery Group Co., Ltd. 三、变更山西省高级人民法院(2006)晋民初字第20号民事判决第二项为:山西嘉和泰房地产开发有限公司于判决生效后三十日内,向太原重型机械(集团)有限公司支付营业税58.20624万元人民币,支付契税41.25万元人民币。
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. 如逾期不履行本判决确定之金钱给付义务,应当依照《中华人民共和国民事诉讼法》第二百三十二条之规定,加倍支付迟延履行期间的债务利息。
Of the case acceptance fee of 517,998 yuan for the trial of the first instance, the preservation fee of 265,000 yuan and other legal costs of 45,000 yuan, totaling 827,998 yuan, Taiyuan Heavy Machinery Group Co., Ltd. shall assume 500,000 yuan, and Shanxi Jiahetai Real Estate Development Co., Ltd. shall assume 327,998 yuan; the case acceptance fee of 487,998.48 yuan for the trial of the second instance shall be assumed by Shanxi Jiahetai Real Estate Development Co., Ltd. 一审案件受理费51.7998万元,保全费 26.5万元,其他诉讼费4.5万元,合计 82.7998万元,由太原重型机械(集团)有限公司负担50万元,山西嘉和泰房地产开发有限公司负担32.7998万元;二审案件受理费48.799848万元,由山西嘉和泰房地产开发有限公司负担。
This judgment shall be final. 本判决为终审判决。
Presiding Judge Han Mei 审 判 长 韩 玫
Judge Wu Xiaofang 审 判 员 吴晓芳
Judge Wang Youxiang 审 判 员 王友祥
December 21, 2007 二00七年十二月二十一日
Clerk Yu Wenjun 书 记 员 虞文君

 

     
     
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