The civil petition

 

 

Appellant.

Appellant.

Attorney: Zheng Houyong, lawyer of Hubei platform.

Appellee: 

The appellant for the sale of housing dispute case, Xian'an District, Xianning City, with peopleCivil lawInstitute (2010Salty) issued Spain in the early Republican word article1171(judgement No.2011Years6Month1Received the verdict)In accordance with the law, the appeal.

The appeal:

1The revocation of Xianning City, Xian'an District People's Court (2010Salty) issued Spain in the early Republican word article1171Judgment, that the housing trafficking appellant valid;

2, by the appellant trial, second instance court costs.

The facts and reasons

The judgment of objective facts valid evidence and cases will the Appellants in disregard of the appellee, not a proof that the appellant is malicious collusion case, the presumption and the so-called "common sense" to identify the facts of the case, a serious violation of the procedural rules of evidence on the basis of fact judgments according to law, deviated from the normal litigation orbit determination of the civil procedure law, the contractor alleged malfeasance.

 

One, the appellant to provide sufficient evidence that the appellant believes that the housing seller in the purchase of housing and the housing transfer registration (sold for a trial the defendant Lu Fang, is the sister of Lu Juan, the same below) is the appellee, is the owner of the house.

According to the first contact with the seller, to borrow money, take it, and finally the housing transfer registration, the identity of the seller's perception and understanding, through the following four stages:

1In fact, the first stage

2009Years12Month, betray a person to hold the appellee's house property card and ID card copy to find the petitioner asks to borrow money, the appellant request him to show his identity certificate, the seller said Id original lost. The Appellant maintains the seller I and ID card copy photos are not very like, the seller also explained that I generally and ID photos are not alike. The appellant basically agree with this interpretation of the seller, because a lot of people are in this situation, including himself and ID photos don't like. However, in order to further confirm their identity, the appellant requests to the local neighborhood committees issued a single evidence to prove that the property permits, housing is the person all. The seller to Tongshan County Yan Xia Xiang community neighborhood committees issued a single proof. Although the proof is that Lu Juan single, because the seller issued, so the appellant basically believe that the seller is Lu Juan himself (appellee). In addition, the seller is to borrow money with real estate collateral certificate, belongs to the private borrowing, so no further review of the seller's true identity. At this time, the appellant basically believe that the seller is the house property certificate owner Lu Juan.

2In fact, the second stage:

2010Years5Month, the appellant that betray a person to mortgage the house property card is lost in the "Xianning daily" notice, apply for a real estate license Lu juan. The appellant after looking very angry, because it was already the seller loan repayment period, so it is natural that the seller intentionally evade debts, and would like to use for the property permits the property permits the appellant hands. The appellant immediately to the Changsha find the seller, the seller repayment requirements, and requiring them to explain the "Xianning daily" published property certificate is lost and re submit the property card. At this time the seller did not appeal to people that is not the real estate certificate is lost and re published real estate license notice things (the verdict No.12Page found this fact), only that there is no money. Therefore, the appellant has reason to believe is sold to escape debt and apply for the property permits, did not know is the real property right is the appellant for property certificate to apply for reissue. Therefore, the appellant to Xianan District People's court, for the seller to pay back the money. At that time, the people believe that the seller is the appellee, so the indictment of the defendant appellee Lu Juan. The judge agreed, the appellant and the seller agreed to the housing mortgage loan, make good, so the two sides signed the housing sale agreement. The sale of housing, the court judges the license, voluntary negotiation by the legal act, not a judgment that "the strong demand in the housing bonded seller and the seller does not agree.".

From the appellant to appeal by human action against the seller of this fact, also indicates that the Appellant was indeed that the seller is the appellee, housing property.

If the seller to appeal to people that property card is lost and re published notice is not what it is, is the sister, it never would have happened later betray a person to sell mortgages event. Therefore, in selling housing behavior, is the seller malicious, the appellant does not exist malicious.

The third stage: the appellant and the seller consultation by the housing bonded housing, need to transfer, the seller did not submit the identity certificate, naturally, in the absence of the original identity card case, the appellant requests the seller home issued proof of identity. At this time, the appellant to betray a person to the housing bonded, betray a person to also want to housing debt, there is no seller is not willing to the housing bonded and appeals strongly to the housing bonded fact. The people think, the seller ID card lost, as long as the local police station to open a proof of identity, is very easy, as long as a public security organ for records, can confirm their identity. Therefore, the Appellant had appointed Gong Wenchen to drive the seller to Tongshan Yan Xia Xiang police station issued proof of identity. On the facts, the court of first instance were also investigated, confirm the fact is that the seller to explain their situation to Yan Xia township police station police residence, the household registration police will issue a proof of identity. Although the proof to specify "only for account transfer or use case investigation", this is enough to believe that public security organs confirm that the seller is the appellee Lu Juan, because in the proof of Lu Juan's account with seller's photos. This can be fully demonstrated, the household registration certificate, not the appellant and the seller malicious collusion to cheat the public security organs and the false evidence, is that the seller to deceive the public security organs and issued by the public security organs error proof of residence. At this time, the appellant did not know certificate issued by the public security organs is the error proof.

The fourth stage: the appellant and the seller to property management for housing transfer registration, the contractor to review relevant materials (including the public security organs to produce error proof of residence), the housing transfer conditions, to handle the housing transfer registration.

   The above four stages of fact, appeal people's perceptions of identity the seller and know there are three kinds of different changes:

1When the seller to the appellant, Yan Xia Xiang Ju Wei Hui, issued by the property permits a single proof of the appellant and appellee's, the appellant basically believe that the seller is the appellee Lu Juan, is the owner of the house;

2When the appellee, proof of identity of the seller to the Appellants Yan Xia Xiang police station issued by a seller photo (not fake, Gong Wenchen looked at the defendant Lu Fang to the police station issued), the seller is convinced that the appellee, is the owner of the house;

3When the real estate sector, through the review of housing transfer materials provided by the seller (including the appellee's identity), the appellant believes that selling human appellee, is the owner of the house.

Therefore, the appellant to betray a person to the purchase of housing, in good faith, do not know the seller as the appellee, but believe, believe, believe that the seller is the owner of the house, have the right to sell houses. Until the appellees sued, the court of first instance to the appellant served the indictment, the appellant is half believe and half doubt, finally after the court really know that the seller is posing as his sister (appellee) loan and the appellant and the sale of housing.

 

Two, the appellee provide evidence to prove that no appeal to the appellant and the seller has no right to housing in the purchase of housing

The first trial, the appellant provides14That, the evidence3,4,5,6,7,9,10,13,14That is, the appellee that the appellant knew that the seller as the appellant and appellee and the seller malicious collusion proof. The evidence to prove that the content is the appellee subjective speculation, no evidence of a direct proof that the appellant knew that the seller as the appellant and appellee and the seller malicious collusion. A judgment is not based on the above evidence the appellee's that the appellant and the seller malicious collusion, but according to the whole process of the appellant and the seller handle housing property transfer, the presumption of the appellant and the seller malicious collusion.

 

Three, a trial of the use of so-called common sense and the presumption that the facts of the case, serious violations of the civil procedure rules of evidence

Judgement, there are several "common sense", "perverse", "presumption", so that be of an identical nature of fact method and the appellee that you provide evidence method, are subjective inference. The appellant to provide evidence to support its do not know the seller as the appellee, betray a person to appeal to people to provide the proof to prove their status, a neighborhood committees, there is evidence that the public security organs, and real estate sector also recognized identity certificate issued by public security organs, the appellant has what reason to think that issued by the neighborhood committee, public security organs is false, false? Real estate sector lax review identified what evidence? Court finds that the real estate sector lax review is also the subjective judge, in order to cater to the appellant's claim to forget the procedural rules. In the absence of proof of identity objection and the public security organs that produce proof of identity is the wrong before, every sector believe that public security organs to produce proof of identity authentic. Therefore, real estate departments approved by the public security organ identity, also be perfectly logical and reasonable legal.

 

The sale of housing act four, the appellant in accordance with "property law" article106Provisions, which belongs to the bona fide acquisition of housing ownership

The appellant and the seller trading houses, in determining prices, take strict and impartial measures, not in a hurry and rush to determine housing prices. The appellant commissioned a professional assessment agencies for assessment, the consent of the seller in assessing the price negotiation housing sale price, the final prices and assess the price of the transaction match, also with the Xianning property market prices. The seller issued to the appellant265000Yuan 1629 receipts, the appellant in2007Years4Month to214000Dollars to buy houses, in the2010Years4Month to265000Yuan on housing sold, the price is reasonable, is not unfair, the appellant did not significantly benefit from.

 

In five, the court finds that the wrong name

(a) the first trial, the appellant to handle the property transfer, arrange drivers Gong Wenchen and betray a person to go to the seller account the location issued a false proof of residence, but also deliberately by this false proof for the property transfer procedures (the verdict No.15Page). This fact, and the evidence and the court of first instance authority survey evidence violates.

The first issue of Tongshan County, Yan Xia Xiang police station proved not false proof, was issued by the household registration police neglect to examine the error proof. If it is false evidence, the household registration police have suspected of collusion with the seller, but that is not the case, investigation and court of first instance ruled out the household registration police and the seller collusion facts. Therefore, false proof of residence, a serious violation of the objective facts, the contractor has obvious subjective arbitrary, biased toward the appellant.

Second, the appellant did not know a certificate issued by the police station of the Yan Xia Xiang is wrong or false proof, therefore, there is not a judgment that "intentionally by the false proof procedures for the transfer of real estate.". This is identified, the court of first instance contractor violates the objective fact imposed on the appellant, malfeasance behavior is serious.

(two) when the appellant found "Xianning daily" published the collateral property registration notice and to question the seller, the seller did not appeal to people that his sister had been the appellant is, first instance verdict: "according to the common sense, the defendant Wang Wenjuan at this time should be the defendant Lu Fang doubt the identity, shall know the defendant Lu Fang not to avoid debt, is suspected of fraud, shall report to the relevant departments to identify or his true identity, but the defendant Chen Tiexian, Wang Wenjuan not only is not normal to seek legal remedies, but strongly requests the defendant Lu Fang will not handle the mortgage registration-Real estate debt." This "common sense" a judgment that the perverse and objectivity, and stultify oneself:

First, the judgment of first instance, the appellant should doubt the situation there are two, or that the seller to apply for registration in order to avoid debt, or betray a person suspected of fraud. In this case, the appellant doubt the seller is to avoid debt and apply for real estate registration, then sued the seller, it conforms to the common sense, there is no need to report to the public security organs, there is no need to the relevant departments to find out the true identity. How is this perverse? Since a judgment that can suspect that the seller is to avoid debt and apply for property registration, should be prosecuted for the seller to pay off the debts, but why the appellant shall report to the public security organs? Doubt the seller suspected fraud should report to the public security organs. Therefore, a judgment about the appellant according to Convention shall report to the public security organs recognized, is counterintuitive, is stultify oneself.

Second, a judgment in the use of "strong demand", everywhere is to illustrate the appellant forcing the seller to mortgage debt rather than the seller voluntarily facts. This was "strong demand" are used improperly, not in conformity with the objective reality, subjective inclination. Here the "strong demand" (judgement No.15First row) is contrary to the objective facts. The appellant is sued the seller (the defendant appellee), in the judge's permission, voluntary negotiation to mortgage offset borrowing, which accords with the development trend of natural events, not appeal people strongly demand the seller to mortgage credit loan.

 (three) of first instance verdict, "do not agree on the Lu Fang case, the defendant Wang Wenjuan in addition to agree to the defendant Lu Fang to borrow this, information provided for debt, the other to the defendant Lu Fang65000As a condition of the sale, this violates common sense." A trial of this confirmation, belongs to the subjective:

First, since in the judge's permission, through consultation with the housing mortgage loan demand offset, natural law. In accordance with the collateral Chong general provisions against the debt, the debtor to the value of the mortgaged property is lower than the value of the debt, the value of the collateral; higher than the value of the debt, the creditor shall be refunded to the debtor is higher than the debt. In this case, because the collateral is real estate, are inseparable, so the appellant will be higher than the debtor's debt limit supply part (the seller), is in accordance with the law. A trial that the legitimate appellant's perverse, I do not know the Contractor's "common sense" is what common sense?

Second, the housing transactions fact: the appellant to prosecute the seller are demanding payment, the court judges permit, according to the general provisions of collateral processing, real estate debt transactions in accordance with the natural development trend of mortgage borrowing not also, to mortgage borrowing and offset. This development trend, it is common sense. The first trial to ignore this objective fact, not on the basis of direct evidence, only by the seller a language, that the defendant Lu Fang (the seller) does not agree to the housing mortgage loan is offset, obviously subjective. In accordance with the rules of evidence, the party called the voluntary offset to housing mortgage loan, the other party that did not agree to the housing mortgage loan in offset, no other evidence to support the both sides of the case, the court of first instance should be in accordance with the natural trend of events, namely the prosecution of repayment, the judge permits reconciliation agreement, in accordance with the general provisions mortgage processing, with mortgage debt at common sense, to infer the voluntary offset to the housing mortgage debt, rather than on the basis of identification of the seller a language of presumption, the seller does not agree to the mortgaged property to offset the debt.

Six, a judgment against the case fact judgment, the contractor personnel suspected malfeasance

A trial of the Tongshan County Yan Xia Xiang Ju Wei Hui Yan Xia Xiang, Tongshan County police issued prove and Xianning City real estate authority examines and approve the transfer of housing materials, despite the fact that, subjective judge, the use of the so-called "common sense" and the presumption that the facts of the case, in order to cater to the litigant request, a serious violation of the provisions of the civil procedure law, request the malfeasance trial court to the court of first instance the contractor undertakes investigating handling.

To sum up, request the court of second instance shall revoke Xianning Xian'an District People's Court (2010Salty) issued Spain in the early Republican word article1171To confirm the effective legal judgment, the appellant and the seller housing transactions, in order to safeguard the legitimate rights and interests of the parties in good faith.

 

                                                             To the appellant:

                                                            2011Years6Month10Day