Lawyer

Chapter 149 I met an opponent

"Appellant, explain your claim, facts and reasons." The male judge said with a blank expression.

"Litigation claims: [-]. Order to revoke the civil judgment of the first instance, amend the judgment according to law or send it back for retrial. [-]. Order the appellee to bear the litigation costs of the first instance and the second instance.

Facts and reasons: The court of first instance held that Article No. 20 of the Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Copy by the People's Court is the review rule for real estate without priority right to repayment in the execution of monetary claims, and the case involved The security interest in the parking space has been generated due to the mortgage registration, and has been confirmed as the content of execution by the effective judgment. Therefore, the appellant's defense claim that Article 20 of the above-mentioned Provisions No. [-] should be applied to exclude compulsory execution does not meet the applicable conditions.The appellant believes that the court of first instance applied the law wrongly for the following reasons:
20. The appellant believes that Article [-] of No. [-] of the "Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Execution Objections and Reconsideration Cases by the People's Courts" stipulates that "the person applying for enforcement shall have priority in receiving compensation for the object of execution against the outsider in accordance with the law. Right, the people's court shall not support the objection to exclusion of execution raised by a party outside the case, unless otherwise stipulated by laws and judicial interpretations'.

Article No.20 of the above-mentioned provisions falls within the scope of the proviso specified in Article No.20 Seven (provision: except as otherwise stipulated by laws and judicial interpretations), that is, after the real estate buyer meets the four requirements stipulated in Article No.20 Eight, , which is sufficient to counter the enforcement of the security interest.

[-]. The appellant is the owner of the community developed by the third party involved in the case. The parking space he purchased is a necessary living facility for the house he purchased, and it has been used since the purchase.

Therefore, it can be determined that the parking space purchased by the appellant has the necessary residential right attribute for the special protection of "commercial housing purchased by consumers" in Article 20 of No. [-] of the Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts.

In summary, the enforcement objection raised by the appellant fully satisfies the conditions of No. 20 and No. 20 of the "Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Execution Objections and Copy by the People's Court", and the appellant's enjoyment of the subject matter of execution is sufficient to exclude the People's Court Enforceable Civil Rights.

Let the court judge according to law, over. "Fang Yi said.

"Defended by the above-mentioned person." The male judge said.

"The appellee disagrees with the appellant's claim.

According to the mortgage contract signed by the appellee and the third party (real estate developer) in this case, the mortgage registration and the effective judgment of the court, it is claimed that the exercise of the priority right to compensation for the mortgaged parking space involved in the case is in compliance with the law, and the appellant is the buyer of the parking space The grounds for excluding the appellee's application for enforcement are untenable.The reasons are as follows:
First, according to Article 20 of No. [-] of the Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsiderations by People's Courts, the appellee's mortgage on the parking space involved in the case has been established in accordance with the law, and there are effective legal documents to support it. It is confirmed that the appellee has the right to exercise the priority right to compensation through auction and sale.

Second, the seven provisos to Article 20 of the Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsiderations by the People's Courts are applicable only to the Reply of the Supreme People's Court on the Priority Right to Repayment of Construction Project Prices (law Interpretation [2002] No. 16) stipulates the "priority of project price payment" and "priority of consumers of commercial housing".

However, the object of dispute involved in the case is a parking space, not a commercial house. The appellant raised an enforcement objection, and the seven provisos of No. 20 of the Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsiderations by the People's Courts do not apply.

Third, the appellant’s grounds for excluding the appellee’s enforcement were not tenable because he was the buyer specified in Article No. 20 of the Provisions of the Supreme People’s Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsiderations by the People’s Court.

The person applying for execution of monetary claims as stipulated in Article No. 20 of the "Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsideration by People's Courts" shall not include the mortgagee.

The parking space involved in this case has already been mortgaged according to law and has been confirmed by the effective judgment. The mortgage right enjoyed by the appellee according to law is excluded.

Fourth, after signing the sales contract, the appellant neither carried out online signing and filing registration according to the contract, nor applied for notarization to the notary office, and should bear the risk at his own risk.The appellee has fulfilled the obligation of due diligence on the mortgaged property involved in the case, performed the necessary duty of care, signed the mortgage contract, and handled the mortgage registration. There is no fault of the appellee.

In summary, the appellee requested the court to reject the appellant's claim according to law and uphold the original judgment. " said the old lawyer.

After listening to the old lawyer's defense opinions, Fang Yi knew that Jiang was still old and hot when he met his opponent today.But this also aroused Fang Yi's fighting spirit, the stronger the opponent, the stronger he will be.

"Appellant, appellee, do you have any new evidence to submit?" the male judge asked.

"No." Both sides said.

"Appellant, do you have any objections to the facts determined by the court of first instance?" asked the male judge.

"No objection." Fang Yi said.

He has repeatedly read the case files of the previous first instance, and also studied the verdict of the first instance. The two sides had no disputes about the facts of the case in the first instance trial before, and the timeline was also very clear. The bank signed the mortgage contract with the developer half a month earlier, and Lu Meifeng paid the full price, as evidenced by the invoice.

Other facts are simpler. Both the loan and the mortgage contract have been confirmed by the court in the form of a judgment, and there is no dispute.

The focus of this case is: whether the appellant Lu Meifeng enjoys the civil rights and interests of the parking spaces involved in the case, which are sufficient to exclude the enforcement by the people's court.To put it bluntly, it is whether the case applies the provisions of No. 20 or No. 20 of the "Provisions of the Supreme People's Court Concerning Several Issues Concerning the Handling of Enforcement Objections and Reconsideration by the People's Court".

To be honest, Fang Yi was not sure whether No.20 or No.20 should be applied. Based on the principle of beating the old master to death with random punches, he put both of them in the grounds for appeal.

"Does the appellee have any objection to the facts of the case found in the first instance?" asked the male judge.

"No objection." The old lawyer said.

"Respondent, let me ask, according to the "Real Estate Evaluation and Consulting Report" provided by your bank to the court of first instance, the property rights of the parking spaces involved in the case were registered under the name of the real estate developer when the mortgage was applied for, and the status of the parking spaces is: all the parking spaces are in use .

Respondent, have you conducted further investigation to find out whether the parking space has been sold or whether there are other obligees? ’ asked the male judge.

(End of this chapter)