Civil protest application (house sale dispute)

Applicant: Li, male

Respondent: Zhang, male

Defendant in the first instance: Li Moumou, female

Due to the dispute over the sale and purchase contract of the house, the applicant refused to accept the Civil Judgment of Jinan City Intermediate People's Court and the People's Court of the People's Republic of China.

Application matters

Apply for your civil judgment against the Jinan City Intermediate People's Court, Jimin Yizhongzi No.1, and protest in accordance with the law.

Facts and reasons

1. The judgment of the original trial complies with the provisions of the first paragraph of Article 179 of the Civil Procedure Law of the People's Republic of China. The basic facts found in the original judgment are lack of evidence. The specific reasons are as follows:

The judgment of the original trial found that the “House Sales Contract” signed by the applicant, the defendant in the first instance and the respondent was valid, which was a factual error.

The applicant and the defendant in the first instance were in a relationship with the younger brother. On the certain day of the month of XX, the two inherited the case and the house was transferred. However, when the house was inherited, the defendant in the first instance had already married Sun Moumou on a certain day of the month of XX. According to Article 17 of the Marriage Law of the People's Republic of China, the share of the property inherited by the defendant in the first instance belongs to the joint property of the husband and wife. There are three people in the property: the applicant, the first-instance defendant and Sun Moumou. The applicant and the defendant in the first instance signed the “House Sales Contract” with the respondent without the consent of another co-owner, Sun Mou, and the act was unauthorised and disposed of according to the “Contract Law of the People’s Republic of China”. The provisions of Article 11 shall be effective only if the person who has been ratified by the right holder or who has no power to dispose of the contract has obtained the right of disposition. In the case where the original judgment did not ascertain whether Sun’s behavior was ratified by the applicant and the defendant in the first instance, it was determined that the “House Sale Contract” was valid and it was a factual error.

The original judgment found that when the time for the transfer was the first payment, it was a factual error.

First of all, the meaning of the “remaining transfer and post-loan payment” made by the defendant in the first instance is invalid. There are three co-owners in the case. In the absence of the authorization of the other two co-owners and the fact that they have not been ratified afterwards, the meaning of the accused in the first instance cannot be regarded as the meaning of the other two co-owners. This means that there is no binding on the other two co-owners.

Secondly, the time for the transfer of the house as stipulated in the “House Sale Contract” is not clear, and the order in which the buyer and the seller fulfill their obligations is not clearly stipulated. Article 3, paragraph 4, of the “House Sale Contract” stipulates that “Party A shall assist Party B in handling the relevant name change procedures and real estate certificates of the house after the relevant expenses of the house are settled.” The fourth paragraph of the “House Sale Contract” It is stipulated that "Since the date of signing this contract, Party A shall assist Party B to go through the procedures for changing the ownership of the property rights registration authority." As can be seen from the above, the agreement on the time for the transfer of the house is contradictory. The agreement is not clear. In accordance with the provisions of Article 61 of the Contract Law of the People's Republic of China, in this case, the parties shall agree to supplement, and if no supplementary agreement can be reached, it shall be determined in accordance with the relevant provisions of the contract or trading habits. In this case, the transfer time cannot be determined according to the terms of the contract, and can only be determined according to the trading habits. The general trading habit of buying and selling houses is to transfer the formalities after paying the full house payment.

In summary, the transfer time of the house should be when the full payment is paid, instead of paying the down payment. Therefore, the original judgment found that the facts were wrong.

2. The judgment of the original trial complies with the provisions of the first paragraph of Article 179 of the Civil Procedure Law of the People's Republic of China. The original judgment or ruling applies to the law. The specific reasons are as follows:

The original judgment held that the respondent had the right to perform the defense first, which was an error in applicable law. As mentioned above, when the transfer time of the house is paid for all the purchases, the court of first instance shall be determined in accordance with the provisions of Article 67 of the Contract Law of the People's Republic of China, if the respondent fails to pay the full amount. The respondent has the right to perform the defense first, and the judgment applicant and the defendant in the first instance handle the transfer procedures, which is an error in applicable law.

3. The judgment of the original trial complies with the provisions of the second paragraph of Article 179 of the Civil Procedure Law of the People's Republic of China. Violation of the statutory procedure may affect the correct judgment and ruling of the case. The specific reasons are as follows:

As mentioned above, Sun Moumou is the co-owner of the disputed house. He does not participate in the lawsuit and cannot find out the case. According to the provisions of Article 119 of the Civil Procedure Law of the People's Republic of China, the court should add the ex officio. It is the defendant. However, the court of the original court did not add any more, which led to the identification of factual errors, and the original invalid housing contract was deemed to be valid, and the wrongful judgment of the applicant to handle the house transfer procedures seriously damaged the legitimate rights and interests of the applicant.

In summary, the original judgment found that the facts were wrong, the application of the law was wrong, and the violation of the statutory procedure affected the correct judgment of the case, so the special application for protest, hope to pay for support.

Sincerely