The developer sued himself for illegal sales. Lawyer： the buyer can claim compensation for the fault in signing the contract.

　　Recently, real estate developer Xi ‘an Wentian Technology Industrial Group Co., Ltd. (hereinafter referred to as "Wentian Technology") sued 12 owners for selling without a license to the court, which was deeply mired in the whirlpool of public opinion. Previously, another case of the same type involved by the developer has been decided to confirm that the contract is invalid. In this case, it is very unfavorable for these 12 owners. How should the owners protect their rights and interests?

　　The developer sued himself for illegal sales and asked the court to confirm that the contract was invalid.

　　According to media reports, a property buyer, Ms. Wang, said that in May 2016, she signed an internal subscription contract with Xi ‘an Wentian Technology Industrial Group Co., Ltd. (hereinafter referred to as the developer) through a friend’s introduction, and purchased a house in Taxus Manor, and paid the full amount of more than 1.4 million yuan.

　　Ms. Wang said that although it was known that the project had not yet obtained the pre-sale certificate, the developer promised many times that it was being processed. At that time, the fourth certificate was hung on the wall, saying that the fifth certificate was being processed, and it was promised that it would come down in three months at most, and the result has been dragged on. Until the beginning of this year, Ms. Wang received a notice from the developer, demanding that the previously sold houses be retired, which made Ms. Wang unacceptable.

　　In February this year, the developer sued 12 buyers, including Ms. Wang, to the court, requesting to confirm that the internal subscription contract signed by both parties was invalid. The reason was that when signing the contract, both the original defendant and the original defendant knew that the yew manor project developed and built by the developer had no pre-sale permit, and the contract signed by both parties was invalid according to Article 2 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts and Article 6 of the Administrative Measures for the Pre-sale of Urban Commercial Housing.

　　The reporter learned that it is a common phenomenon in the real estate industry to sell houses in Xi’ an without a pre-sale permit a few years ago, among which there are many well-known big real estate developers in China. In such a big environment, many ordinary people don’t pay much attention to the fact that developers don’t have pre-sale certificates, but in fact, they all live in peace. And like Wentian Company, it is very rare to sue yourself for illegally selling houses.

　　Ms. Wang said that at the beginning, developers may have signed internal purchase contracts with them because of financial constraints, and asked for full payment. On May 3, 2016, when she bought the property of Wentian Technology Yew Manor, she only sold it for 7070 yuan per square meter after discount; Now the price of the property has risen to about 24,000 yuan per square meter, which is more than three times the original price.

　　From this point of view, the reason why developers dare to sue themselves and expose their dirty linen is not that they have a conscience and want to be a law-abiding enterprise, but that they see the huge benefits brought by the sharp rise in house prices, which is far more than the fines generated by being identified as illegal and unlicensed sales.

　　According to media reports, Xu Longguang, the former head of Wentian Technology, said that most of the 12 buyers were shareholders, employees, relatives and friends of Xi ‘an Jiaxing Marketing Planning Co., Ltd. (hereinafter referred to as "Jiaxing Company"), the former marketing partner of Wentian Technology. He didn’t concentrate on not giving the owner the property, repaying the property he sold and suing the owner, not because of the rising house prices, but because the regulatory authorities ordered the repayment first. However, due to the break of the company’s capital chain, the repayment work lasted from 2016 to 2018, which was delayed.

　　This statement has not been recognized by Jia Zhe, the head of Jiaxing Company. Jia Zhe said that when Wentian Technology was in the most difficult financial situation, he called the company’s shareholders, employees and good friends to subscribe for 10 properties to help Xu Longguang tide over the difficulties. In the end, he tore up the contract in pursuit of greater interests and sued these people to the court.

　　Another case sued by the developer has been confirmed that the contract is invalid.

　　It is understood that before the developer sued two other subscribers, the court had heard and pronounced that the contract was invalid, and one of the subscribers had appealed. Shortly after the judgment of the case, the house involved in the case obtained the "Pre-sale Permit for Commercial Housing" on June 8, and some buyers thought that the time when the pre-sale permit was issued was too strange.

　　Article 2 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts published by the Supreme People’s Court in 2003 stipulates that the pre-sale contract of commercial housing concluded between the seller and the buyer shall be deemed invalid if the seller fails to obtain the pre-sale permit certificate of commercial housing, but it may be deemed valid if the seller obtains the pre-sale permit certificate of commercial housing before the prosecution. The house involved did not obtain the "Pre-sale Permit for Commercial Housing" until June 2018, which also became the reason why the court found that the internal subscription contract signed by both parties was invalid.

　　Hu Yongping, a lawyer of Beijing Horizon Law Firm, said, "Judging from this provision, the court’s judgment is well-founded and there is no problem. However, the court does not have to choose to confirm that the contract is invalid, and it can also reject the developer’s appeal based on the principle of fairness and good faith. "

　　Lawyer Hu Yongping thinks that this verdict is very unfavorable for the next 12 buyers. The qualification requirements of administrative licensing mainly take into account the public service attributes of some industries, so as to provide convenient conditions for service demanders to find qualified service providers more conveniently. In this sense, the qualification requirements are more like administrative mandatory provisions than effective mandatory provisions, and it seems that they should not affect the effectiveness of contracts.

　　Hu Yongping said, "Generally speaking, the relationship between the violation of qualification requirements and the validity of a contract should be considered from the interests of the counterpart of the contract, and the contract should be deemed null and void, which sometimes causes direct damage to the interests of the counterpart of the contract. If the validity of the contract is more beneficial to the counterpart, the contract shall be deemed valid or the qualification shall be corrected. At the same time, it can also be considered that the lack of qualification is cured by the performance of the contract. For example, in the Judicial Interpretation of Construction Contract of Construction Project, if the contract is considered invalid, if the project quality is qualified, it can be handled with reference to the valid contract. With reference to the above provisions, the court can completely decide that the contract is valid. "

　　Buyers can claim compensation from developers for "contracting fault"

　　Article 42 of China’s "Contract Law" stipulates that in the process of concluding a contract, if the parties intentionally conceal important facts related to the conclusion of the contract or provide false information, and have other acts that violate the principle of good faith and cause losses to the other party, they shall be liable for damages.

　　Lawyer Hu Yongping told the reporter, "Article 42 of the Contract Law establishes the liability system for contracting fault. In the process of concluding a contract, if one party fails to establish, invalidate or cancel the contract due to its own fault, it shall compensate the other party who trusts its contract to be effectively established for the damage caused by this trust. The specific scope of compensation includes not only the direct losses such as the contracting and performance expenses actually paid by the other party, but also the loss of the benefits that may be obtained by concluding an effective contract with a third party due to the trust of the validity of the contract, that is, the loss of opportunity. For the opportunity loss of these buyers, the loss of housing value-added benefits can be used as a reference.

　　Therefore, these buyers can sue the court on the grounds of the developer’s fault in signing a contract, demanding that the developer compensate for the loss of the opportunity to buy a house. "