1.1 without the contract of rural land dispute case democratic procedures of a

Case description:

Third Feng Jincai (outside the village) in 2007 March signed a contract with the village land contract, the plaintiff (285 villagers) in May 2009 to court requesting that the contract does not void the democratic process, the court ruling contract invalid.

Liang Weidong lawyer commented:

In this case the Contractor proposes no contract land for more than a year and have defenses massive financial resource, the court that the contract is null and void the return of land without any pressure, so the judgement in accordance with the law of contract is invalid.

Pingdingshan City, Henan province people's court in class

Civil judgment

(2009) the civilian terminal two No. 553rd

The appellant (defendant in the original instance) Yexian County Xin Dian Xiang Lei Cao Wa village committee. I wish the legal representative, the village Party branch secretary and director of the village.

Agent Zhao Chunzhi, the Yexian County Judicial Bureau 148 legal services staff.

The appellant (Trial third) Feng Jincai, male, born in November 5, 1951.

Agent Zhao Chunzhi, the Yexian County Judicial Bureau 148 legal services staff.

Appellee (the plaintiff) 285 villagers Cao wa Cun Yexian County Xin Dian Xiang lei.

Legal representative Chen Junpo, male,Born in August 24, 1974.

The litigation representative Li Yuding (stop), male, born in December 23, 1975.

Legal representative Chen Yunsheng, male, born in March 18, 1976.

Legal representative Chen Zhaoyang, male, born in August 15, 1987.

Legal representative Shi Guoping, male, born in April 2, 1972.

Attorney: Wang Baoshuai, male, born in May 4, 1968.

The appellant Yexian County Xin Dian Xiang Lei Cao Wa village committee (hereinafter referred to as Lei Cao wa Cun Wei), Feng Jincai and Yexian County Xin Dian Xiang Lei Cao Wa village 285 villagers in rural contract dispute case, the Yexian County people's court made in April 20, 2009 (2009) leaves people a Chu Zi No. 205th civil judgment, in 2009 May 4 to the appeal, the hospital in June 10, 2009 after the acceptance of the application, a collegial panel of the trial, the case has now been finalized.

The court found the defendant, Lei Cao wa Cun Wei and Feng Jincai third people toIn March 10, 2007 signed a "Lei Cao wa Cun Lin Chang Yang Huaipo contract". Contract content: "the village two committees and the people representative conference research, solution built village funds, special auction last piece Huaipo Yang Cun Lin chang. The specific terms are as follows: Party A: Party B: Lei Cao wa Cun Wei Feng Jincai, East Tumen buyers to ditch forest slope boundary; West to east of the road; South to Tang Valley on the road south of the watershed; north to Tumen ditch slope. Two, to sell the beat period: the auction period of one hundred and five years (15 years) (2007.3.102022.3.10) three, mode of payment and the amount, the auction price is Yiwansan thousand yuan (13000) in a lump sum. Four, a and B both sides rights. Since the signing of the contract date, Yang Huaipo B all, have cut down and transfer of rights, but the land owned by Party A, within the term of contract does not allow excavation, mining.

Unilateral breach of contract penalty penalty Siqian element. Party a responsible person: Li Shunqing, Feng Junding, Chen Qiushou, Chen Shuanglin, Ma Po, Chen Yaowei, Tian Ying, Wang Jian B: Feng Jincai. Five, not because of a change to change the contract village. March 10, 2007. The third person, the contract was signed after the money paid, no mass, without an auction procedures, land contract agreed on it are still intact. The defendants say, third people to pay in advance L3000 yuan now township finance store. The plaintiff Chen Junpo, Li Yuting, Chen Zhaoyang, Chen Yunsheng, Shi Guoping to the litigation representative on behalf of 335 villagers in 2008 November 24 to the court, requesting confirmation of Lei Cao wa Cun Wei and Feng Jincai third people in March 10, 2007 signed the "Lei Cao wa Cun Lin Chang Yang Huaipo contract" null and void the contract.

The court held that the defendant, a, and third people signed the validity of a contract. The "Lei Cao wa Cun Lin Chang Yang Huaipo contract", which belongs to the important matters involving the interests of villagers; the contract management plan shall be submitted to the villagers meeting to discuss the decision. Because of contract management scheme of the "Lei Cao wa Cun Lin Chang Yang Huaipo contract" without the villagers meeting to discuss the decision, in violation of the democratic principles, should belong to invalid. Two, with regard to the case whether the plaintiff eligibility."PRC Civil Procedure Law"Article fifty-fourthProvisions, if a party to a joint action is large in number, the party concerned may elect a representative litigation. In this case, Cao wa Cun Yexian County Xin Dian Xiang Lei 335 villagers elect five representatives who is the five plaintiff litigation, in accordance with the law. Three, on the village committee have representation. The trial of third person, "the signing of the contract, Ma Chengpo presided over the village work, deputy director of the village committee and the group leader are present, the contract should be valid contract; even if is the representative of Party A without representation, but third people as long as a representation, the contract is protected by law". The village committee on behalf of the interests of villagers and third people signed the contract, the village committee on contract management plan must be submitted to the villagers meeting to discuss the decision before it can apply for, this is the mandatory provisions of the law, any violation of mandatory provisions of the act are invalid, so the three people said that reason can not be established, shall not support. The contract is invalid, the defendant did not contract in accordance with the democratic principles, for the invalidity of the contract fault, the defendant, the return of third contract section of the same, and shall be in accordance with the bank loan interest is 9.3 of the monthly pay third interest. The trial court, the defendant: Lei Cao wa Cun Wei and Feng Jincai third people in March 10, 2007 signed the "Lei Cao wa Cun Lin Chang Yang Huaipo contract" null and void. Two, the defendant Lei Cao wa Cun Wei returned third Feng Jincai contracted section of 13000 within ten days after this judgment to take legal effect, at the same time, and monthly interest rate 9.3 ‰ such payment from March 11, 2007 to all fulfilled date of interest. The case acceptance fee of 100 yuan, the defendant Lei Cao wa Cun Wei burden.

After the verdict, the appellant Lei Cao wa Cun Wei and Feng Jincai were dissatisfied with the judgment, the main reason to mention appeal and litigation request, the court of first instance, a violation of procedure, the trial court in five after the name specified is the litigation representative, no other litigation plaintiff, I do not know who is elected as the representative of 5 one, the plaintiff litigation representative does not have legitimacy. Two, the improper application of the law, judgment error. Barren hills and contract dispute shall be made by the "law" to adjust the contracted land, refer to the chapter second of household contract, and the contract belongs to the third chapter, other forms of contract. A trial was with Feng Jincai to public consultation signed a contract agreement, the signing of the agreement when the village committee members and group leader all arrived at the scene, from the form and content are flawless. Request the court of second instance reverse the original judgment, the judgment shall be amended according to or remand.

The appellee Yexian County wa Cun Xin Dian Xiang Lei Cao 285 villagers argued, first the original told the litigation representative qualification of legal."Civil Procedure Law"Regulations, a large number of uncertain when the prosecution, the parties to the litigation representative to participate in the. Prosecution Lei Cao wa villagers elect Chen Junpo 5 people such as the litigation representative to participate in the litigation on behalf of the villagers, have recommended a book as proof, not the appellant the appeal for the establishment of. The first instance procedure legal. Major matters of collective shall be borne by the masses voting, the autonomy of villagers, the original judgment contract invalid is right, safeguarding the legitimate rights and interests of the masses, the request of the second instance court dismissed the appeal, upheld the.

The trial by the court found, the appellee Lei Cao wa Cun village in litigation has the change in the number of participating in the proceedings, the Chen Qingpo, Tian Xiu, some villagers said did not agree to participate in the lawsuit, said that at present does not determine whether to participate in the proceedings. The second instance procedure in the appellee proof to the subject of litigation validity, the submission of 297 villagers and a list of registered permanent residence volunteered to participate in this case the original to the Institute, the Institute organized three party verification, through cross examination, 285 more than eighteen years of age the village identity can be determined. But the appellant Lei Cao wa Cun Wei, Feng Jincai argued that some of the villagers working outside, not that it agreed to participate in the proceedings. The two sides for the adults, Lei Cao wa Cun Wei said that the total population of 802 people, more than eighteen years of age have 550 people; by appeal person a total population of 701 people, more than eighteen years of age in the village of about 450 people. The second is consistent with other facts and original trial court found by the facts. The second instance procedure by the court mediation organization, because the respondent has not agreed to mediation, the mediation can not lead to the case.

The above facts, a respondent to provide the action list, press book, villagers court transcripts in volume, should be recognized.

This house believes that,"The people's Republic of China Law of Villager Committee Organization"Article nineteenthProvisions, matters involving the interests of villagers, the villagers committee must draw the villagers meeting to discuss the decision, may apply for."The people's Republic of China Rural Land Contract Law"The relevant provisions that, whether it is family contract or other ways of contracting, to go through certain contracting procedures. The case of Feng Jincai and Lei Cao wa Cun Wei the conclusion of contract, not through the villagers meeting decided to legitimate contracting procedures, in violation of the provisions of the law, shall be null and void. Litigation subject, according to the Supreme People's court "on hearing the agricultural contract dispute cases the provisions of a number of issues", namely "the employer belongs to more than half of the villagers, to sign a contract breach"The PRC Land Management"And"The people's Republic of China Law of Villager Committee Organization"Democratic principles and other laws and regulations, or the contract content against most of the villagers' will, damage to the collective and villager interest grounds, to the employer for the defendant, filed a lawsuit requesting confirmation of the validity of the contract, the people's court shall accept the case according to law, and may also notify the Contractor as third people to participate in the proceedings". The appellee provides the 285 eighteen years of age the account of the original and expressed their willingness to participate in this case villagers signature in the second instance procedure, appeal person some villagers work in outside, can not sign to participate in the lawsuit, according to the way of life of rural residents, the present situation and habits, will be signed by the appellant said provide accounts of the original and one of the family members of the representative of the whole family. The appellee in total is the total number of 335 villagers although vary, but even the number of villagers on the appellant Lei Cao wa Cun Wei recognized the village more than eighteen years of age to 550 people, more than half of. Therefore the appellee Cao wa Cun, Yexian County Xin Dian Xiang Lei 285 villagers as the main proceedings, in accordance with the provisions of the litigation subject qualification. The appellant called the appellee qualification improper grounds of appeal, the court shall not accept. But the trial court since it has been in the proceedings to Chen Junpo, Li Yuting, Chen Zhaoyang, Chen Yunsheng, Shi Guoping is a litigation representative on behalf of the prosecution, it should be the subject of litigation proceedings as stated in the list, the subject of litigation is not clear, the second instance should be corrected. The trial court finds that the facts are clear, the applicable law is correct, the grounds of appeal, the appellant for lack of evidence, the court shall not support. In accordance with the"PRC Civil Procedure Law"Article 153rdThe first paragraph of article (a) the provisions of item, the decision as follows: