"The Supreme People's Court on Several Issues concerning the trial of housing registration law cases"The provisions of the eighth problems and suggestions

                               Authors: Zhang Fuxin lawyer

In view of administrative cases involving housing registration has been in doubt and controversy, different courts to this kind of case verdict is also different, the Supreme People's Court promulgated the "law interpretation (2010) No. 15" on the trial of "housing registration cases the provisions of a number of issues" (hereinafter referred to as "Regulations"). In the specific application process, there are some different understanding and immature suggestions on the provisions of article eighth of the content.

The provisions of article eighth of the validity of legal relation of civil housing registration administrative relations confirm the priority principle. When the administrative registration is the prerequisite for the basic civil legal relationship in the effectiveness of disputes, ultimately affect the housing registration administrative act to maintain or cancel. By the parties concerned to solve the validity of civil legal relation dispute, administrative litigation cases temporarily not on file, has been accepted, shall order the termination of litigation. However, the provisions are not very well in practical application.

One, the "party" subject qualification is not clearly defined scope.

Is not the scope of administrative litigation and civil litigation plaintiff 1 completely coincident.

The provisions of article eighth of the "party" is the party in administrative litigation and civil litigation, the party in? The 108th civil law on plaintiff qualification as "direct interest"; the administrative procedure law interpretation stipulates that the Twelfth "legal interest relations". Thus, the regulations between the qualification of the plaintiff is not exactly the same.

2 in the housing registration administrative relations enjoy administrative action may also enjoy civil right of action.

Qualification of plaintiff in civil litigation in the civil right infringement or not based on the identified; subject qualification of administrative litigation plaintiff is a "legal interest" as the basis and identified with the specific administrative act. Legal facts to a company to sell his house as an example, from the civil legal relations: have a direct interest in the human the seller, the buyer; from the administrative legal relations: interested person law includes both the administrative relative person (the seller, the buyer), also can be the administrative the relationship between people (related to sell housing company shareholders). In judicial practice, as the seller of the sale of housing, the shareholders to have by the so-called "legal relationship", "all of housing" mention revocation request of administrative litigation, the court shall accept some. According to the relevant provisions of the civil procedure law and the company law, the shareholders shall have no right to implement housing sale of civil legal relationship about validity confirmation; but in the judicial practice of the shareholders are likely to administrative relationship of the identity of the person, "all of housing" mention revocation of administrative litigation. Therefore, in the specific application of the provisions of article eighth, "the parties" must be in accordance with the administrative procedure law and the conditions of qualification of plaintiff in civil procedure law at the same time, otherwise it has no right to bring civil legal relationship according to the basic validity confirmation. But this stipulation is not clear what kind of legal relationship "parties"; the two is not specified whether the court according to the provisions of the administrative litigation right, just enjoy and do not enjoy the right of civil action "parties" brought a civil relationship by case ruled that an objection to the validity of the procedure!

Two, the statutory period, suspend litigation recovery trial subject matter not provided for in.

After the suspension of 1 administrative litigation, if the plaintiff does not always bring a civil action for confirmation, administrative proceedings to recover the trial? Cancellation of housing management authority in the registration certificate of administrative litigation, long pause, what time, what reason can be recovered after the trial is not specified. The defect was malicious use, will make the administrative litigation of infinite delay, damage the interests of the buyer; the real right uncertain attribution, property registration limited effectiveness, impact of property transfer, normal trading order of relative stability and judicial justice.

The provisions of the 2 recovery procedure is not operable. The civil procedure law, administrative procedure law article 136th article fifty-first, are required for the principle "to eliminate the cause of litigation proceedings, recovery". The provisions of article eighth for the recovery of administrative procedure causes, recovery time is not specified, the lack of operability. The application for restoration of administrative proceedings, or under the authority of a court to restore the administrative proceedings? Fuzzy rules of the clause, resulting in termination of litigation in the judicial practice, can't restore hearing, also hope to the Supreme People's court to solve the problem.

Three, the provisions of article eighth of the content of the proposed.

1 of the eighth "parties" to define the scope.

Second paragraph: "the proposed increase in the preceding paragraph in the party is: with the sale, gift, a total, mortgage, marriage, inheritance and other civil legal relationship has a direct interest of citizens, legal persons or other organizations. However, the civil legal relationship of administrative related people as housing registration behavior based invalid or shall be revoked by the case, the provisions of this article shall not apply to".

2 of the administrative litigation, to resume the hearing for suspension period shall be determined.

Proposals to increase the third paragraph: "the parties shall suspend the proceedings in civil lawsuit within 15 days of the date when the decision is served, instituting civil proceedings within the time limit, the people's court shall restore the administrative proceedings within 3 days after the date of expiration of the".

Case introduction:

A company and B company has more than 20 acres of land, nearly 2000 square meters of industrial plant signed the "housing sales contracts", and shall handle the housing ownership change registration procedures (transfer), made "all of housing". Subsequently, three shareholders of company A Zhang, to the "housing sales contracts" defective on the grounds, to the city Housing Authority for the defendant, B filed administrative proceedings for third people, requesting revocation of City Housing Authority issued to B's "all of housing".

The courts of the judicial interpretation of the provisions of article eighth, the housing register in the sale is invalid on the grounds of...... Suspend litigation, defendant and plaintiff, to the administrative proceedings, B company issued a stay of proceedings of civil Award "".

The case has the following the legal consequences:

1. A Zhang never mention "housing sales contracts" confirmation of civil litigation, they destroy the "housing all of the" administrative procedure, the program will not be able to recover the;

2. A Zhang mentioned "confirmation potency housing contracts of sale", the court shall not accept. The reason is: A between Zhang and the sale of housing has no legal "direct interest", do not accord with the law of 108th: "the plaintiff has a direct interest in the case of citizens......" Regulations. 

3 direct result is: A company in accordance with the administrative litigation plaintiff Zhang to the examination requirements, take A company shareholder and housing registration "is a legal interest", may bring to revoke the "housing all of the" administrative litigation; but he is not the sale of housing in the "direct interest". The plaintiff qualification, do not have civil, not to file a civil suit against the housing sale. The case appears to revoke the "all of housing" administrative lawsuit never recover trial case. The house belongs to blocked change registration of more than 20 acres of land use rights within the scope of the strange phenomenon, the same land of housing ownership and land use rights are not consistent, the huge investment of B company can not achieve normal economic interests.