Brief introduction of the case
1August 994 18, a Wenzhou trading company (hereinafter referred to as the "trading company") invested and a Wenzhou hotel (hereinafter referred to as the "hotel") came forward to sign a joint venture agreement with a Wenzhou village committee (hereinafter referred to as the "village committee"). Both parties agree to jointly operate a commercial building (hereinafter referred to as "Commercial Building"). The village committee is responsible for providing land and original ground buildings (including sporadic ancillary buildings such as indoor swimming pools) for commercial buildings, and the hotel is responsible for civil engineering and engineering decoration of all ground buildings, as well as all taxes and fees payable in the whole construction process, of which the hotel holds 80% of the shares and the village committee holds 20% of the shares. The hotel is responsible for the management right of the main building of the commercial building. Regardless of the operating profit and loss, the hotel guarantees the village Committee's income of 6.5438+0.5 million yuan every year. The affiliated houses of the commercial building are rented by the village Committee at low prices. At the same time, the trading company signed an agreement with the hotel, stipulating that the actual undertaker of the rights and obligations of the joint venture agreement is the trading company.
1997, the main building of the commercial building was completed, and the floor was *** 10. The property right is registered under the name of the village committee, and the hotel and the village committee operate according to the joint venture agreement.
During the joint-stock operation between the hotel and the village committee, the hotel rented commercial premises to a hotel company in Wenzhou (hereinafter referred to as "the hotel"). In 2002, a group affiliated to the commercial building borrowed 34 million yuan from the bank in its own name, and the village committee took some floors of the commercial building as collateral. In the same year, a housing development and construction company in Wenzhou (hereinafter referred to as "Fang Kai Company") borrowed 34 million yuan from the bank, and the village committee took some floors of the commercial building as collateral. After the expiration of the loan period, a certain group and the housing development company failed to repay the loan on time, and the bank sued a certain group, the village Committee and the housing development company to the court respectively, demanding the return of the loan. After mediation, the hotel compensates the principal and interest of the bank loan, and the borrower repays the loan within a time limit. Due to the borrower's failure to repay the hotel compensation on time, the mortgage was discounted to the hotel as agreed, and the property rights were transferred.
During the operation of the commercial building, the village Committee changed. After the change, the village committee thinks that the actual users of the loan are not a certain group and the village committee, but three non-group or subordinate units such as Fang Kai Company. At the same time, the village committee believes that the original village committee signed a joint venture agreement with the hotel and used the mortgage loan for commercial buildings without the vote of the villagers' meeting, which violated the legal provisions and harmed the collective interests of the village, and filed a series of lawsuits: suing the hotel for confirming the joint venture operation of commercial buildings and requesting the court to confirm that the joint venture agreement was invalid; Appeal to the housing development company about the loan contract dispute; Due to the change of housing ownership, a lawsuit to cancel the registration of change is filed with the housing registration department. At the same time, the hotel and trading company sued the village Committee for continuing to perform the joint venture agreement (after the Supreme People's Court confirmed that the contracted operation agreement was invalid, it was changed to a lawsuit to return the investment in building commercial buildings); The trading company and the village committee appealed to the Higher People's Court of Zhejiang Province for contract disputes.
Due to the relationship between hotels, trading companies, housing enterprises and hotels, there are many money exchanges between hotels, trading companies and village committees during the cooperation period of more than ten years, and it is difficult to clarify the creditor's rights and debts of all parties. The economic dispute between the parties also lasted from 2003 to July 3, 2007, and the Zhejiang Higher People's Court closed the case.
Liu Weiping was entrusted to act as an agent for hotels, trading companies and housing enterprises to participate in the trial of contract disputes between hotels and village committees, disputes over the return of investment funds in joint venture agreements between trading companies and village committees, and retrial cases of loan contracts of housing enterprises.
Focus of controversy
First, when the hotel (trading company) and the village committee jointly run the commercial building, who owes who.
Second, how to deal with the commercial buildings jointly built by both parties can best safeguard the interests of all parties.
Trial mediation:
During the trial, due to the complicated economic relations involved in the case, the Zhejiang Higher People's Court and the attorneys of hotels, village committees and trading companies all advocated mediation through analysis. At the same time, the Higher People's Court of Zhejiang Province also gave the parties enough time for mediation.
After consultation by attorneys of all parties, out-of-court mediation is conducted in two steps: the first step is reconciliation; Step 2: Negotiate the handling method according to the reconciliation result.
The reconciliation work is organized by the attorneys of both parties, including hotels, village committees, trading companies and housing enterprises, to find out all the accounts of economic exchanges during the cooperation period and check them with each other. I went to Hangzhou three times in half a year to exchange account information and sort out creditor's rights and debts. All parties confirmed that the village Committee had a balance of payments for hotels, trading companies and housing enterprises. In fact, the village committee is responsible for hotels, trading companies and housing companies.
According to the results of reconciliation, the three parties, the housing development company and the attorneys of both parties negotiate on how the village committee can repay the debts. After many consultations, the three parties, the building company and the tenant hotel of the commercial building reached an agreement on the repayment method of the village committee to the hotel, the trading company and the building company: * * The value of the commercial building (including the value of the hotel's secondary decoration of the commercial building) was evaluated by an intermediary agency, and the commercial building was auctioned at the reserve price. The second decoration price of the hotel belongs to the hotel in the auction proceeds, and the auction proceeds are 1 after deducting the decoration money. After more than ten times of research and revision, the lawyers of all parties have formed a written framework agreement. The framework agreement has made detailed plans and agreements on the results of reconciliation, the way of debt repayment, the way of handling commercial buildings and how to realize them.
After the framework agreement was made, both parties submitted the mediation results to the Higher People's Court of Zhejiang Province.
Mediation results:
At the request of a hotel in Wenzhou, a village committee in Wenzhou and a trading company in Wenzhou, the Higher People's Court of Zhejiang Province organized mediation. According to the framework agreement signed by the defendant, the third party, a hotel company in Wenzhou and a housing construction and development company in Wenzhou, the three parties voluntarily reached the following agreement:
1. After checking the accounts of the defendant with the housing development company and the third party in the early stage, it was confirmed that there was a difference between the defendant and the housing development company and the third party (the defendant owed it to the housing development company and the third party). At the same time, there is the fact that the defendant paid part of the money for commercial construction projects. After the balance between the two, the defendant still has debts to the housing company and the third party. In view of the above situation and historical reasons, all parties confirm that 2/3 of the net proceeds from the auction (change) sale of the commercial house (with an area of 30,888.5 square meters) belongs to the defendant, and the remaining 65,438+0/3 is provided to a third party. The plaintiff and the third party agreed that the defendant should start the auction procedure of commercial premises (including the second renovation of the hotel opening) within 0/5 days from the effective date of the mediation.
The auction reserve price is the sum of the decoration evaluation prices of commercial buildings and hotels entrusted by all parties. According to the assets appraisal report (Hang Ping Bao Zi (2007) No.03 1), the real estate appraisal price of the commercial house is RMB 262,675,800, and the decoration appraisal price is RMB 565,438+RMB 6633. (1) If the auction is successful, the decoration money will be paid to the hotel according to the evaluation price (the hotel will bear the auction-related taxes in proportion); The total auction price minus the decoration evaluation price is the real estate auction price, and the defendant and the third party get 2/3 and 1/3 respectively. If the real estate auction involves the payment of land transfer fees, related taxes and fees, as well as the payment of seller's taxes and fees, auction fees, etc. The defendant paid the money to the relevant departments and units, but the third party must bear one third of the total land transfer fee and all taxes and fees. The money payable to the third party shall be paid to the third party and the hotel within ten working days after the defendant receives the money from the buyer and pays all kinds of taxes, deducting the taxes that should be borne by the third party and the hotel. If the first auction fails, all parties agree to reduce the floor price of the commodity house by 65,438+00% within seven days (the decoration price will be reduced by the same proportion) and entrust the auction again.
If the auction is successful, the proceeds shall be handled as agreed in the preceding paragraph. (2) The two auctions of commercial houses were unsuccessful (both auctions were considered unsuccessful), and the auction fees of the two auctions of real estate (the renovation of auction fees was undertaken by the hotel) was borne by the defendant and the third party at the ratio of 2/3 and 1/3, and then the defendant and the third party renovated the commercial house without the hotel for the second time, and the renovation price was lowered by 65,438 according to the reserve price (i.e. the evaluation price) of the second auction. The premise of bidding between the two parties is that the land of the commercial building is of the nature of transfer. The land transfer fee and the relevant taxes and fees for handling the land transfer formalities shall be paid by the winning bidder in advance, and the defendant and the third party shall share it according to the ratio of 2: 1 after payment. If the defendant succeeds in the auction, he will pay the auction proceeds (net income after deducting all land transfer fees and taxes related to land transfer procedures from the auction price)1/3 to the third party; If the third party bids successfully, 2/3 of the auction proceeds will be paid to the defendant. 2/3 of the seller's taxes and fees arising from the transfer procedures of real estate and land shall be borne by the defendant, 1/3 by the third party, and the buyer's taxes and fees shall be borne by the third party. The defendant and the third party promised that the entrusted auction of the commercial building and the auction between the two parties would be completed before the end of 2007. The specific details of the auction and the payment method will be negotiated separately at that time. After the performance of the above contents, the defendant's balance of payments between the third party and the real estate enterprise is regarded as settled, that is, the defendant no longer has any liabilities to the third party and the real estate enterprise.
2. If the auction by a third party is successful, the defendant may give priority to selling the swimming pool and supporting auxiliary rooms next to the commercial building to a third party under the same conditions, and the specific transaction conditions will be negotiated separately.
3. This agreement will come into effect after being signed by all parties, and all parties will no longer claim each other's rights on the commercial building.
4. As an annex to this mediation agreement, the framework agreement is binding on all parties.
5. The fees for accepting the case shall be borne by the plaintiff and the third party.