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民事上诉状　　上诉人范xx，男，197x年12月10日出生，汉族，农民，住xx县杨x镇朱x村。　　被上诉人xx县杨x镇朱x村民委员会。　　法定代表人朱xx，该村委会主任。　　上诉请求：　　1、依法撤销xx县人民法院（200x）x民初字第900号民事判决书；　　2、对案件依法进行改判或者发回xx县人民法院重新审理；　　3、本案一、二审一切诉讼费用由被上诉人承担。　　事实与理由：　　上诉人不服xx县人民法院（200x）x民初字第900号民事判决书，现提出上诉，具体事实和理由如下：　　一、一审法院认定事实错误和互相矛盾　　（1）关于改变荒山用途问题。上诉人承包土地后，一直进行枣树、花椒、柿树和杨树的种植，从未利用承包土地采石，未改变土地用途。一审法院事实认定部分“另查明：自2000年至今，魏x村部分村民在该荒山原有的石头坑内开采石头”，并未认定上诉人有开采行为，其他村民的采石行为，并非上诉人的行为。判决理由却以有采石行为发生为由认定上诉人改变转让协议用途，其认定是互相矛盾的！　　（2）关于没有完成荒山绿化任务的问题。转让协议签订后，上诉人即开始联系栽种酸枣树，后由于被上诉人原法定代表人杨xx在个人私欲没有得到满足的情况下横加干预，2001年上诉人所植树木部分因他人焚烧秸秆发生火灾而烧毁，加之2001年和2002年连续干旱无雨，才造成所植树木存活无几。此后，上诉人于2003年春栽种花椒、柿树和杨树15000余棵，初步完成了绿化任务。2003年植树期间，被上诉人擅自中止合同，将上诉人承包的荒山允许其他村民植树，造成上诉人所植树苗部分被拔掉，树苗成活率大大降低。即使说，荒山绿化任务未能如期完成，责任完完全全在被上诉人，而不在上诉人。树木长成，上诉人可以得到可观的经济利益，上诉人不可能自毁山林，这是极简单的生活常识！　　（三）关于合同无法继续履行问题。一审判决以部分村民自发到该荒山植树造林为由，从而认定转让协议无法继续履行，该判决理由根本就站不住脚！本合同正常履行受阻的原因，在于被上诉人以及部分村民的侵权行为，而非上诉人的行为。在上诉人种植树苗部分被毁的情况下，上诉人完全可以另行栽种，从而完成合同目的！可以这样说，只要上诉人有劳动能力，只要荒山没有因地震等不可抗力而灭失，荒山承包合同就不存在无法继续履行！另外，因被上诉人及其他村民侵权行为造成合同履行的障碍，而作出不利于上诉人的判决，是完完全全背离公平原则的！

          　　二、一审法院认定承包合同转让协议的法律关系错误　　荒山承包合同的当事人是被上诉人和原审第三人；承包合同转让协议在协议上签章有上诉人、被上诉人及第三人，但并不是说，转让协议的当事人就是三方，这种理解是对承包合同的误解。承包合同转包只是在承包方和转包后的承包方形成新的权利义务关系，而并不能改变原承包合同的内容，转包协议的签订并不意味着原承包合同的解除。被上诉人在转让协议上的签章，只能证明该转让协议征得了被上诉人即发包方的同意，而并不能在上诉人与被上诉人之间产生直接的权利义务关系。转让协议的双方当事人是原审第三人和被上诉人，而非上诉人与被上诉人。转让协议中，被上诉人不是合同当事人，因此不享有申请解除转让协议的请求权。一审法院支持被上诉人的反诉请求，准许合同当事人以外的第三人享有合同解除权，是违反合同相对性原理，是违反合同法规定的！　　三、本案转让协议不存在约定或法定解除的情形　　合同的解除，按照合同法的规定，有协议解除和法定解除两种，判决理由认定“该‘承包合同转让协议’中解除合同的条件已经成就”，上诉人一字一字查遍转让协议，别说解除合同的条件，八个条文中，甚至连“解除”两个字都找不到。一审法院判决认定双方存在解除合同的条件约定，纯属空穴来风、主观臆造或者醉酒之梦话！因此，本案并无最高院解释第二十四条第（一）项适用之余地！　　那么，一审法院该条第（三）项的引用是否正确呢？该款规定主要涉及承包合同无法继续履行的情形，一方面上诉人前述已阐明合同履行遇到阻碍纯属上诉人侵权所致，另一方面也如前述，在被上诉人停止侵权行为后，上诉人完全有能力继续履行合同，不存在合同无法继续履行的情形。因此，引用该项规定也纯属牵强附会的拉郎配之举！　　四、被上诉人的反诉根本就不能成立　　（一）如前所述，被上诉人并非转让协议的当事人，作为转让协议当事人以外的第三人，依法不享有合同解除请求权，因此被上诉人不是反诉的适格原告，对该反诉依法应予驳回！　　（二）被上诉人口口声声说转让协议系被上诉人原法定代表人杨xx串通上诉人所签订，这根本就不符合事实，因为转让协议涉及的关键是原审第三人的利益，如果原审第三人不同意，仅仅有上诉人和杨秀海的串通，转让协议是根本就不能签订的！此外，被上诉人并未证据能够支持其主张！　　（三）被上诉人认为转让协议违反民主议定原则，是对法律的误解和歪曲。根据最高法院解释，承包合同签订需要经民主议定程序，转包等行为无需所谓的民主议定程序，原因就是如前所述的发包方并非当事人，因此无需发包方去民主、去议定！被上诉人反诉状所引用的解释第15条针对的向本集体经济组织以外的人转包的情形，上诉人是被上诉人村民，不存在此种情形。因此该条文引用纯属牵强附会、肆意歪曲！

（四）中国只颁布了《中华人民共和国农村土地承包法》，而不存在所谓的《中华人民共和国农业承包法》，承包合同及转让协议均签订于农村土地承包法生效之前，根据立法法关于法不溯及既往的原则，土地承包法不能适用，也不存在所谓的参照！　　（五）被上诉人行为属于严重的侵权行为。被上诉人在上诉人承包期内，下达所谓的处理意见，横加干涉诉人依法享有的承包权，其实质在于国家“退耕还林”政策的实施，使上诉人可以得到部分补偿，而被上诉人又想染指这部分利益！被上诉人属于典型的“红眼病”行为！　　五、一审法院解除转让协议将造成林权证“有证无权”　　《林权证》是xx县人民政府政府确认上诉人享有林地及林木权益的法定有效证件，是县政府对上诉人林地承包权的行政确认，在该证件依法撤销或者变更之前，上诉人依法对承包的荒山拥有合法权益！一审法院不顾核发林权证书的存在，而判令解除转让协议，这将造成上诉人持有合法权利证书，却享受不到权利，其他人无权利证书却能享受权利的怪现象，造成上诉人的“有证无权”，一审法院等于在实质上行使了行政撤销权，民事审判机构在实质上行使了行政审判的权力，这是不符合法律规定的！　　综上所述，一审法院认定事实错误和互相矛盾、认定法律关系错误、被上诉人反诉根本不能成立，由于认定错误从而导致最终适用法律和判决结果的错误，依法应当予以撤销！为保护上诉人合法权益，特向贵院提出上诉，请依法撤销原审判决，改判或者发回重审，维护法律的尊严！　 　此致　　xxx市中级人民法院　　上诉人范 x x　　二○○四年x月五日　　

The appellant of the civil appeal is Fan XX, male, born on December 10, 197x, of Han ethnicity, a farmer, residing in Zhux Village, Yangx Town, XX County. The appellant is the Zhux Village Committee in Yangx Town, XX County. The legal representative is Zhu XX, the director of the village committee. Appeal request: 1. Revoke the civil judgment of XX County People's Court (200x) x Min Chu Zi No. 900 in accordance with the law; 2. Revise the judgment of the case in accordance with the law or remand it to the People's Court of XX County for retrial; 3. All litigation costs in the first and second trials of this case shall be borne by the appellant. Facts and reasons: The appellant is dissatisfied with the civil judgment of XX County People's Court (200x) x Min Chu Zi No. 900, and now files an appeal. The specific facts and reasons are as follows: 1. The first instance court found that the facts were incorrect and contradictory (1) Regarding the issue of changing the use of barren mountains. After contracting the land, the appellant continued to plant jujube, Sichuan pepper, persimmon, and poplar trees, never using the contracted land for quarrying, and did not change the land use. The first instance court found that some villagers in Weix Village have been mining stones in the original stone pit of the barren mountain since 2000, but did not determine that the appellant engaged in mining activities. The mining activities of other villagers were not the actions of the appellant. The reason for the judgment is that the appellant changed the purpose of the transfer agreement on the grounds of the occurrence of quarrying activities, and their determination is contradictory! (2) Regarding the issue of not completing the task of greening the barren mountains. After the transfer agreement was signed, the appellant immediately began to contact the planting of sour jujube trees. However, due to Yang XX, the original legal representative of the appellant, intervening recklessly without satisfying his personal desires, some of the trees planted by the appellant were burned down in 2001 due to a fire caused by someone else burning straw. In addition, the continuous drought and lack of rain in 2001 and 2002 resulted in very few surviving trees. Afterwards, in the spring of 2003, the appellant planted more than 15000 Sichuan pepper, persimmon, and poplar trees, completing the preliminary greening task. During the tree planting period in 2003, the respondent unilaterally terminated the contract and allowed other villagers to plant trees on the barren mountains contracted by the appellant, resulting in the removal of some of the saplings planted by the appellant and a significant decrease in the survival rate of the saplings. Even if the task of greening the barren mountains was not completed as scheduled, the complete responsibility lies with the respondent, not the appellant. When trees grow, the appellant can gain considerable economic benefits. The appellant cannot destroy the mountains and forests on their own. This is a very simple common sense in life! （3） Regarding the issue of inability to continue fulfilling the contract. The first instance judgment found that the transfer agreement could not be continued due to some villagers spontaneously planting trees and afforestation in the barren mountain, and the reason for this judgment is simply unfounded! The reason for the obstruction of the normal performance of this contract is due to the infringement of the respondent and some villagers, rather than the actions of the appellant. In the case where the appellant's planting of saplings is partially destroyed, the appellant can completely plant them separately to achieve the purpose of the contract! It can be said that as long as the appellant has the ability to work, as long as the barren mountain has not been destroyed due to force majeure such as earthquakes, the barren mountain contract will not exist and cannot be continued to be performed! Furthermore, making a judgment unfavorable to the appellant due to the infringement of the respondent and other villagers, which creates obstacles to the performance of the contract, completely deviates from the principle of fairness!

2、 The first instance court found that the legal relationship in the transfer agreement of the contract was incorrect. The parties to the barren mountain contract were the appellant and the third party in the original trial; The transfer agreement of the contract includes the appellant, the respondent, and a third party, but this does not mean that the parties to the transfer agreement are all three parties. This understanding is a misunderstanding of the contract. The subcontracting of the contract only forms a new rights and obligations relationship between the contractor and the subcontractor after subcontracting, and cannot change the content of the original contract. The signing of the subcontracting agreement does not mean the termination of the original contract. The signature and seal of the respondent on the transfer agreement can only prove that the transfer agreement has obtained the consent of the respondent, i.e. the employer, and cannot create a direct right and obligation relationship between the appellant and the respondent. The parties to the transfer agreement are the third party in the original trial and the respondent, rather than the appellant and the respondent. In the transfer agreement, the respondent is not a party to the contract and therefore does not have the right to request the termination of the transfer agreement. The first instance court supports the respondent's counterclaim request and allows third parties other than the contracting parties to enjoy the right to terminate the contract, which violates the principle of relativity of the contract and the provisions of the Contract Law! 3、 There is no agreement or statutory termination in the transfer agreement of this case. According to the provisions of the Contract Law, there are two types of contract termination: agreement termination and statutory termination. The reason for the judgment is that "the conditions for termination of the contract in the 'contract transfer agreement' have been met". The appellant searched the transfer agreement word by word, and not to mention the conditions for termination of the contract, even the word "termination" could not be found in the eight articles. The first instance court's ruling that there is a condition agreement for the termination of the contract between the two parties is purely groundless, subjective fabrication, or drunken dream talk! Therefore, there is no room for the application of Article 24 (1) of the Supreme Court's interpretation in this case! So, is the first instance court's reference to item (3) of this article correct? This provision mainly relates to the situation where the contract cannot be continued to be performed. On the one hand, the appellant has clarified that the obstacles encountered in the performance of the contract are purely due to the appellant's infringement. On the other hand, as mentioned above, after the respondent stops the infringement, the appellant is fully capable of continuing to perform the contract, and there is no situation where the contract cannot be continued to be performed. Therefore, citing this regulation is purely a farfetched act! 4、 The respondent's counterclaim cannot be established at all. (1) As mentioned earlier, the respondent is not a party to the transfer agreement, and as a third party other than a party to the transfer agreement, they do not have the right to request contract termination in accordance with the law. Therefore, the respondent is not a qualified plaintiff in the counterclaim and should be dismissed in accordance with the law! （2） The appellant repeatedly claimed that the transfer agreement was signed by Yang XX, the original legal representative of the appellant, in collusion with the appellant, which is not in line with the facts. This is because the key to the transfer agreement is the interests of the third party in the original trial. If the third party in the original trial does not agree, with only the collusion between the appellant and Yang Xiuhai, the transfer agreement cannot be signed at all! Furthermore, the respondent has no evidence to support their claim! （3） The appellant believes that the transfer agreement violates the principle of democratic agreement and is a misunderstanding and distortion of the law. According to the interpretation of the Supreme Court, the signing of a contract requires a democratic negotiation process, and subcontracting and other behaviors do not require the so-called democratic negotiation process. The reason is that as mentioned earlier, the contracting party is not a party, so there is no need for the contracting party to democratically negotiate! Article 15 of the interpretation cited in the respondent's counterclaim pertains to the situation of subcontracting to people outside the collective economic organization, and the appellant is a villager of the respondent, so there is no such situation. Therefore, the citation of this article is purely farfetched and arbitrarily distorted!

（4） China has only promulgated the Rural Land Contract Law of the People's Republic of China, and there is no so-called Agricultural Contract Law of the People's Republic of China. The contract and transfer agreement were signed before the Rural Land Contract Law came into effect. According to the principle of non retroactive law in legislative law, the Land Contract Law cannot be applied and there is no such thing as a reference! （5） The respondent's behavior constitutes a serious infringement. The respondent issued a so-called handling opinion during the appellant's contracting period, which interfered with the plaintiff's legal contracting rights. Its essence lies in the implementation of the national "returning farmland to forests" policy, allowing the appellant to receive partial compensation, and the respondent wants to get involved in this part of the benefits! The respondent belongs to a typical "red eye disease" behavior! 5、 The termination of the transfer agreement by the first instance court will result in the forest ownership certificate being "certified but not authorized". The "Forest Ownership Certificate" is a legally valid document confirmed by the XX County People's Government that the appellant enjoys the rights and interests of forest land and trees. It is an administrative confirmation by the county government of the appellant's forest land contracting right. Before the certificate is lawfully revoked or changed, the appellant has legal rights and interests in the contracted barren mountains in accordance with the law! The first instance court disregards the existence of issuing forest ownership certificates and orders the termination of the transfer agreement, which will cause the appellant to hold a legal certificate of rights but cannot enjoy the rights, and others without a certificate of rights can enjoy the rights, resulting in the appellant's "no right to proof". The first instance court essentially exercises the administrative revocation power, while the civil trial institution exercises the administrative trial power in substance, This does not comply with legal regulations! In summary, the first instance court's determination of facts is incorrect and contradictory, the determination of legal relationships is incorrect, and the respondent's counterclaim cannot be established. Due to the incorrect determination, the final application of law and judgment results should be revoked in accordance with the law! To protect the legitimate rights and interests of the appellant, we hereby appeal to your court and request that the original judgment be revoked, changed, or remanded for retrial in accordance with the law, in order to uphold the dignity of the law! Sincerely to Fan X, Appellant of the Intermediate People's Court of xxx City, on X/5/2004