7772, ruling date: December 20, 2021.
Entrusted agent ad litem: Wu Yu, an employee of the sub branch.
Key points of judgment: Article 29 of the provisions of the Supreme People’s Court on Several Issues concerning the handling of execution objection and reconsideration cases by the people’s court stipulates: “in the execution of monetary claims, if the buyer raises an objection to the commercial house registered in the name of the executed real estate development enterprise, if it meets the following circumstances and its rights can be excluded from execution, the people’s court shall support it: (1) A legal and effective written sales contract has been signed before the people’s court seals it up; （2） The purchased commercial house is for living and there is no other house for living under the buyer’s name; （3） The price paid exceeds 50% of the total price agreed in the contract.
ICBC Yunnan Road sub branch applied for retrial and said: (1) it was wrong in the original judgment to determine that the commercial housing sales contract signed by Zhong min and Hongyuan Xianke company was true, legal and valid.
Source of case: (China judicial document network) civil ruling on Retrial review of civil application of civil execution objection by Beihai Yunan road sub branch, Zhong min and other applicants of industrial and Commercial Bank of China Limited, (2021) supreme law min Shen No.
913 of the higher people’s Court of Guangxi Zhuang Autonomous Region due to the lawsuit against the executor of the respondent Zhong min and Guangxi Hongyuan Xianke Co., Ltd.
（3） The original judgment rejected the application in accordance with the relevant provisions of the reply of the Supreme People’s Court on the priority of compensation for the construction project price, and the applicable law was wrong.
The retrial applicant, industrial and Commercial Bank of China Limited Beihai Yunnan Road sub branch (hereinafter referred to as ICBC Yunnan Road sub branch), refused to accept the civil judgment (2020) guiminzhong No.
Respondent (defendant of first instance, appellee of second instance, outsider of execution): Zhong min, basic information is omitted.
(hereinafter referred to as Hongyuan Xianke company), Apply to the court for retrial.
Domicile: omitted.
” Although the buyer, as a consumer of commercial housing, has a house under his name, but the other house purchased still meets the basic living needs in terms of area, it can be understood that it complies with the spirit of the above judicial interpretation, and it can be determined that the implementation objection raised by the buyer, as a consumer of house purchase, against the house involved in the case complies with the provisions of the above judicial interpretation, The buyer’s civil rights and interests in the house involved in the case can be enforced against the case (including the mortgage right).
Then, when there are two houses (i.e.
not the only house) under the buyer’s name, can enforcement not be ruled out? In this case, the Supreme Court held that although there is a house under the buyer’s name, the compulsory execution can still be excluded when the area of another house purchased still meets the basic living needs.
Domicile: omitted.
Person in charge: Liu Xiaoyan, President of the sub branch.
After examination, the court believes that the focus of the retrial examination of this case is: whether it is wrong for the judgment of the first and second instance to determine whether Zhong Min has civil rights and interests sufficient to exclude compulsory execution for the house involved in the case.
Respondent (defendant of the first instance, appellee of the second instance and executee): Guangxi Hongyuan Xianke Co., Ltd.
7772 retrial applicant (plaintiff of the first instance, appellant of the second instance and executor of the application): Industrial and Commercial Bank of China Limited Beihai Yunnan Road sub branch.
The court has formed a collegial panel for examination according to law, and the examination has been concluded.
One of the preconditions for applying for the exclusion of compulsory execution is that the buyer “has no other house under his name for living”.
Civil ruling of the Supreme People’s Court of the people’s Republic of China (2021) supreme law min Shen No.
（2） The original judgment only relied on the certificate, commercial housing sales contract and housing replacement agreement issued by Hongyuan Xianke company in 2003, and then found that Zhong min had paid most of the house purchase money wrong.
In conclusion, ICBC Yunnan Road sub branch applied for retrial in accordance with items 2, 3 and 6 of article 200 of the Civil Procedure Law of the people’s Republic of China.
Legal representative: ye Guocun, chairman of the company.
Editor’s note: according to Article 29 of the provisions of the Supreme People’s Court on Several Issues concerning the handling of execution objection and reconsideration cases by the people’s court, in the execution of monetary creditor’s rights, the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise.
Article 29 of the provisions of the Supreme People’s Court on Several Issues concerning the handling of execution objection and reconsideration cases by the people’s court stipulates: “in the execution of monetary claims, if the buyer raises an objection to the commercial house registered in the name of the executed real estate development enterprise, if the following circumstances are met and its rights can be excluded from execution, the people’s court shall support it: (1) A legal and effective written sales contract has been signed before the people’s court seals it up; （2） The purchased commercial house is for living and there is no other house for living under the buyer’s name; （3） The price paid exceeds 50% of the total price agreed in the contract..
