Taiyuan Branch of China Bohai Bank Co., Ltd. argued that the subject matter involved in this case is a project under construction, so 1 the stock house sales contract signed with the executed person Taiyuan Xuhai Aquatic Products Co., Ltd. is invalid. Taiyuan Xuhai Aquatic Products Co., Ltd. is not a developer, and its self-built houses cannot be pre-sold as commercial houses, but can only be bought and sold in the form of stock houses. However, before the signing of the contract, the project has not been completed and accepted, and it is still under construction, so it is impossible to register the ownership of the house in the real estate management center. Therefore, the house sales contract based on house ownership is invalid. 2. It is impossible for the respondent to actually possess it, so the relevant legal provisions are not applicable. 3. Because the project under construction involved in this case is a whole and inseparable, the objection request is not operational. 2. Taiyuan Xuhai Aquatic Products Co., Ltd. and Taiyuan Branch of Bohai Bank Co., Ltd. signed a mortgage loan contract with the number of 20 15 for the project under construction involved in this case, and registered it, promising not to dispose of all or part of the collateral, and promising not to sell all or part of the collateral without the written consent of Taiyuan Branch of Bohai Bank Co., Ltd. At present, the direct dispute of Taiyuan Xuhai Aquatic Products Co., Ltd. was confirmed by the court, and the legitimacy of the creditor's rights and mortgage rights enjoyed by the dissenter was confirmed. Taiyuan Branch of China Bohai Bank Co., Ltd. applied for evaluation and auction of the subject matter involved in this case, which was in compliance with relevant laws and regulations.
We found that Xuhai Agricultural and Sideline Products Trading Building, located at No.6 Beiying North Road, xiaodian district City, Taiyuan City, is under construction, which is invested and constructed by Taiyuan Xuhai Aquatic Products Co., Ltd., and the project has handled the state-owned land use permit, construction land planning permit, construction project planning permit and construction project construction permit. The planned building functions of this project are: commercial and commercial apartments, and the land use is commercial and financial land.
2065438+On August 26th, 2008, Shanxi Yanlong Real Estate Development Co., Ltd. signed an agreement with X and Taiyuan Xuhai Aquatic Products Co., Ltd., stipulating that Shanxi Yanlong Real Estate Development Co., Ltd. would provide X with real estate with a value of 73.25 million yuan, and as X borrowed from Shanxi Yanlong Real Estate Development Co., Ltd. for operation, X would repay it to Shanxi Yanlong Real Estate Development Co., Ltd. in installments as agreed. Taiyuan Xuhai Aquatic Products Co., Ltd. takes the store under construction at the first floor of Xuhai Agricultural and Sideline Products Trading Building, No.6 Beiying North Road, xiaodian district, Taiyuan City as the mortgage guarantee for the above loan.
20 15, 15 On May 4, Taiyuan Xuhai Aquatic Products Co., Ltd. signed a loan contract with Taiyuan Branch of Bohai Bank Co., Ltd., and Taiyuan Branch of Bohai Bank Co., Ltd. provided a loan of less than 30 million yuan to Taiyuan Xuhai Aquatic Products Co., Ltd. for the construction of Xuhai agricultural and sideline products trading building project. On the same day, Taiyuan Branch of Bohai Bank Co., Ltd. and Taiyuan Xuhai Aquatic Products Co., Ltd. signed the Real Estate Mortgage Agreement, stipulating that Taiyuan Xuhai Aquatic Products Co., Ltd. will mortgage the project under construction at No.6 Beiying North Road and the land use right to Taiyuan Branch of Bohai Bank Co., Ltd. (the value of the project under construction is 29.99 million yuan, and the land 10000 yuan) for a loan of 30 million yuan to Taiyuan Branch of Bohai Bank Co., Ltd., and the mortgage period is 206. On July 20 15, 17, the mortgage registration of state-owned land use right was handled in the land and resources management department. Taiyuan Branch of China Bohai Bank Co., Ltd. issued a loan of 29.99 million yuan to Taiyuan Xuhai Aquatic Products Co., Ltd. on June 6, 20 15.
20 181October 30th, Taiyuan Xuhai Aquatic Products Co., Ltd. was unable to repay the loan due. After trial in our hospital, our hospital made a decision on 20/kloc-0 165438 (2018) Jin 0165438. The mediation confirmed that Taiyuan Xuhai Aquatic Products Co., Ltd. should pay the principal and interest of RMB 3,3031542.67 to Taiyuan Branch of China Bohai Bank Co., Ltd., as well as the interest, default interest and compound interest that should be paid according to the loan agreement after June 25, 20 18. Because Taiyuan Xuhai Aquatic Products Co., Ltd. failed to pay off the loan principal and interest according to the mediation agreement, Taiyuan Branch of China Bohai Bank Co., Ltd. applied to our hospital for execution on March 8, 20 19, and our hospital filed a case for execution. 2065438+April 9, 2009, our hospital sealed up the above-mentioned projects under construction until March 28, 2022. During the implementation process, our hospital entrusted an evaluation agency to evaluate the above-mentioned projects under construction according to law, and the evaluation value was 125282600 yuan. On 20 19, 19120, our institute made an execution ruling to auction the above-mentioned projects under construction mortgaged by Taiyuan Xuhai Aquatic Products Co., Ltd. ..
The above facts are proved by the real estate mortgage agreement, mortgage registration certificate, civil mediation, enforcement ruling, agreement, receipt of payment and statements of the parties.
The court held that
According to our opinion, Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning People's Courts Handling Cases of Reconsideration with Objection: "The application executor shall have the priority to be compensated for the security interest of the outsider according to law, and the people's court shall not support it if the outsider raises an objection to execution, except as otherwise provided by laws and judicial interpretations." Taiyuan Xuhai Aquatic Products Co., Ltd. mortgaged the project under construction to Taiyuan Branch of China Bohai Bank Co., Ltd. on May 4, 20 15, and registered the mortgage right, so it enjoys the priority of compensation for the project under construction according to law. Taiyuan Xuhai Aquatic Products Co., Ltd. has a loan relationship with Shanxi Yanlong Real Estate Development Co., Ltd. and mortgaged the house. However, it did not apply for mortgage registration, so Shanxi Yanlong Real Estate Development Co., Ltd. did not enjoy the security interest. When Shanxi Yanlong Real Estate Development Co., Ltd. signed a contract with Taiyuan Xuhai Aquatic Products Co., Ltd., the house it purchased was still under construction, and the pre-sale permit for commercial housing was not handled. According to Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts: "If the seller fails to obtain the certificate of pre-sale permit of commercial housing, the pre-sale contract of commercial housing concluded with the buyer shall be deemed invalid, but if the seller obtains the certificate of pre-sale permit of commercial housing before prosecution, it may be deemed valid. However, the house involved has not yet obtained the pre-sale permit. Accordingly, the purchase agreement signed by both parties is invalid. According to Article 58 of the Contract Law of People's Republic of China (PRC), if the contract is invalid, the property obtained from the contract shall be returned, and the party at fault shall compensate the other party for its losses. If both parties are at fault, they shall bear their respective responsibilities. Accordingly, Shanxi Yanlong Real Estate Development Co., Ltd. has the creditor's right to return the house payment and compensate for the losses to Taiyuan Xuhai Aquatic Products Co., Ltd., and its creditor's right cannot be against the mortgage right of Taiyuan Branch of China Bohai Bank Co., Ltd., so it does not belong to the scope of consumer rights protection. The objection of Shanxi Yanlong Real Estate Development Co., Ltd. does not conform to the circumstances stipulated in Articles 28 and 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Objection Reconsideration Cases by People's Courts. Therefore, according to Article 27 of the Provisions of the Supreme People's Court on Several Issues Concerning People's Courts Handling Objection Reconsideration Cases, our court does not support the objection of Shanxi Yanlong Real Estate Development Co., Ltd., and other claims in the written objection of Shanxi Yanlong Real Estate Development Co., Ltd. cannot be handled in the execution procedure because they have not been decided, so they should be handled separately according to law. To sum up, because Taiyuan Branch of Bohai Bank Co., Ltd. enjoys the mortgage right of the project under construction in accordance with the law, the objection of excluding execution put forward by Shanxi Yanlong Real Estate Development Co., Ltd. is not established, and our court does not support it.