专业团队

　　湖南省xx会(下称xx会)因与湖南省长沙市卫生xx站(下称xx站)发生房地产转让合同纠纷，向湖南省高级人民法院提起诉讼。该院作出一审民事判决：

　　一、双方当事人同意解除房地产转让合同，本院予以准许。

　　二、xx站退还xx会已付的转让费370万元及利息，利息按一般基建贷款月息7.5‰计算，自xx会付款之日起至收款之日止。

　　三、长沙市卫生xx站支付xx会赔偿金275万元。案件受理费51260元、财产保全费41770元全部由xx站负担。以上应付款项，xx站应在本判决生效后两个月内付清，逾期不付，拍卖该站在长沙市火星开发区新站址的12.9亩土地及地上建筑物，以所得价款偿付xx会，多退少补。xx站不服一审民事判决，向最高人民法院提起上诉。其上诉理由是：1.双方签订的《房地产有偿划拨转让协议书》，因没有按双方的约定和法律的规定办理房产过户手续，尚未生效，法院不应保护。2.对方在履行协议中也有过错，不应由上诉人承担275万元赔偿金和已付的370万元转让费的利息，以及全部受理费和财产保全费。3.上诉人新站址的房地产是经长沙市人民政府规划的，法院无权将其拍卖。xx会辩称：双方签订的协议已经生效;上诉人违约给被上诉人造成了经济损失，应承担全部赔偿责任;上诉人新站址的房地产，是用被上诉人支付的转让费建设的，应将其作价抵偿给被上诉人。

　　最高人民法院审理查明：xx站经上级批准，决定迁址新建，以适应卫生防疫事业的发展;xx会为解决直属单位住宿、办公用房决定征用xx站的旧站址建房，得到全国xx会的批准。双方就旧站址的房地产划拨转让进行了多次协商，在经长沙市政府及其土地管理局、城建局等有关部门办了手续后，于1991年6月22日签订《房地产有偿划拨转让协议书》。双方约定，xx站将长沙市民主西街8号6亩土地使用权及地上7259.9平方米房屋及其他附属设施的所有权，作价550万元划拨转让给xx会。协议生效后30天内，xx会付给xx站转让费250万元，1992年5月31日前再付100万元。1993年2月底xx站交付3栋住宅楼(3563平方米)后，xx会于同年3月10日前付给xx站120万元;余下80万元待xx站1994年3月底前将全部房地产交付xx会，经验收双方签字认可后半个月内，xx会一次付清。协议还约定两项违约赔偿条款，即双方不得以任何借口不履行协议，也不得提出协议以外的要求，不论哪方违约，不划拨转让或不接受划拨转让上述房地产，均按转让费总价格的50%向对方交纳赔偿金。如果xx会逾期付款，每逾一日，按已付款数的3%向xx站交纳赔偿金;如xx站逾期交房，亦按对等条件向xx会交纳赔偿金。

　　协议签订后，xx会按约定于1991年7月21、22日分别付给xx站150万元、100万元;1992年5月26日又付100万元;1993年1月8日应xx站的请求，提前给付20万元，总共付给转让费370万元。按协议的约定，xx站向xx会移交了房屋档案材料，xx会于1992年12月26日向长沙市房屋产权监理处申请办理房屋产权证。在协议履行期间，xx站于1991年11月5日经长沙市政府批准，在长沙市火星开发区征地12.9亩作为新站址，并于1992年4月开始动工建设。同年10月至1993年2月，xx站以建筑材料价格上涨、建筑承包合同变更、资金严重缺短、工程难以继续、不能按期搬迁交房为由，先后6次致函xx会，要求增加转让费。xx会口头通知xx站要严格执行协议，不同意增加转让费。xx站未按约定在1993年2月底向xx会交付3栋住宅楼，xx会遂向法院起诉，要求法院判令xx站全面履行合同，承担违约赔偿责任。在诉讼中，根据xx会的申请，湖南省高级人民法院裁定对xx站新站址房地产进行财产保全，即未经法院许可，xx站不得擅自转让新站址的房地产。在一审庭审中，xx会以xx站违约使合同继续履行成为不必要为由，要求终止合同，xx站亦表示同意。

　　最高人民法院认为：双方当事人经过平等协商，并经各自上级主管部门批准，又在长沙市人民政府及其有关部门办理了房地产划拨转让手续，因此所签订《房地产有偿划拨转让协议书》是合法有效的。xx站主张的未办理房产过户手续，即xx会未领取房屋产权证，协议尚未生效的上诉理由不能成立。协议约定的逾期付款一日，按3%交纳赔偿金的违约条款，参照有关合同违约责任的法律规定，显属过高。因此，原审法院撤销了协议中的这一条款，确认其余部分继续有效，是正确的。协议订立后，xx会按约定向xx站交付了转让费。xx站不能以建筑材料涨价，建筑承包合同变更，资金严重短缺为借口，不按期向xx会交付3栋住宅楼。xx站违反协议，给xx会造成了经济损失，依据《中华人民共和国民法通则》第一百零六条的规定，以及双方当事人的约定，应承担违约赔偿责任。最高人民法院还认为，原审法院认定事实清楚，但对本案的处理有不当之处。

　　第一、xx会的经济损失应是双方协议转让的房地产原协议的价格与现行市场价格之间的差价。此差价已经包括了xx会付给xx站370万元转让费的利息损失，原审法院判决xx站赔偿xx会经济损失的同时，又判决支付转让费的利息，是不妥的。另外，原审法院判决认定xx会的经济损失(即原协议价格与现行市场价格之间的差价)为275万元，与现行房地产市场价格比较，此差价偏低，应予适当提高。

　　第二、法院判决应当是依法对双方当事人讼争的实体问题，以及诉讼费用作出处理。xx会要求xx站以转让其新址房地产的价款抵偿应付的款项，xx会的这一请求，只有在xx站确实不能履行判决确定的给付义务，法院决定强制执行时才可考虑予以实施。原审法院将可能采取的强制执行措施写入判决书内，也是不妥的。

　　最高人民法院依照民法通则第五十七条、第一百一十二条、第一百一十五条和《中华人民共和国民事诉讼法》第一百五十三条第一款第二项，于1993年10月30日作出判决：一、维持原审判决第一项;二、撤销原审判决第二、三项;三、xx站退还xx会转让费370万元;四、xx站支付xx会赔偿金300万元

Hunan Province XX Association (hereinafter referred to as XX Association) has filed a lawsuit with the Hunan Provincial High People's Court over a real estate transfer contract dispute with Changsha Health XX Station (hereinafter referred to as XX Station) in Hunan Province. The court made a first instance civil judgment:

1、 Both parties agree to terminate the real estate transfer contract, and this court approves it.

2、 XX Station will refund the transfer fee of 3.7 million yuan and interest already paid by XX Club, calculated at a monthly interest rate of 7.5 ‰ on general infrastructure loans, from the date of payment by XX Club to the date of receipt.

3、 Changsha Health XX Station paid a compensation of 2.75 million yuan to XX Association. The case acceptance fee of 51260 yuan and the property preservation fee of 41770 yuan are all borne by xx station. The above payable amount shall be paid in full by XX Station within two months after the effective date of this judgment. If payment is not made on time, the 12.9 acres of land and above ground buildings of the station at the new site of Mars Development Zone in Changsha City shall be auctioned off, and the proceeds shall be used to repay XX Station. Any excess shall be refunded and any shortfall shall be made up. XX Station is dissatisfied with the first instance civil judgment and has filed an appeal to the Supreme People's Court. The reason for the appeal is: 1. The "Real Estate Paid Transfer Agreement" signed by both parties has not yet taken effect due to the failure to complete the property transfer procedures as agreed by both parties and in accordance with legal provisions, and the court should not protect it. 2. If the other party is also at fault in fulfilling the agreement, the appellant should not bear the compensation of 2.75 million yuan, interest on the transfer fee of 3.7 million yuan already paid, as well as all acceptance fees and property preservation fees. 3. The real estate of the appellant's new site was planned by the People's Government of Changsha City, and the court has no right to auction it. Xx will argue that the agreement signed by both parties has come into effect; The appellant's breach of contract has caused economic losses to the respondent and should bear full compensation responsibility; The real estate of the new site of the appellant was constructed using the transfer fee paid by the appellant, and it should be valued and compensated to the appellant.

The Supreme People's Court has determined through trial that xx Station has been approved by the higher authorities to relocate and build a new one to adapt to the development of health and epidemic prevention; Xx will decide to requisition the old site of xx station to build a house for the accommodation and office space of its directly affiliated units, which has been approved by the National xx Committee. Both parties have had multiple negotiations on the transfer of real estate at the old site. After completing the procedures with the Changsha Municipal Government, its Land Management Bureau, Urban Construction Bureau, and other relevant departments, the Real Estate Paid Transfer Agreement was signed on June 22, 1991. Both parties agree that xx Station will transfer the ownership of the 6-acre land use right and 7259.9 square meters of houses and other ancillary facilities at No. 8 Minzhu West Street, Changsha City, to xx Club for a price of 5.5 million yuan. Within 30 days after the agreement takes effect, xx will pay a transfer fee of 2.5 million yuan to xx station, and an additional 1 million yuan will be paid before May 31, 1992. After delivering three residential buildings (3563 square meters) at xx station at the end of February 1993, xx will pay xx station 1.2 million yuan before March 10 of the same year; The remaining 800000 yuan is to be delivered to XX Station before the end of March 1994. After both parties sign and approve the acceptance, XX will make a one-time payment within half a month. The agreement also stipulates two breach of contract compensation clauses, that is, both parties shall not use any excuse to fail to perform the agreement, nor shall they make any demands beyond the agreement. Regardless of which party breaches the agreement, does not transfer or accept the transfer of the above-mentioned real estate, they shall pay compensation to the other party at 50% of the total transfer fee price. If xx fails to make payment on time, a compensation of 3% of the paid amount shall be paid to xx station for each day of delay; If xx station fails to deliver the house on time, compensation will also be paid to xx according to equivalent conditions.

After the agreement was signed, xx will pay xx station 1.5 million yuan and 1 million yuan respectively as agreed on July 21 and 22, 1991; On May 26, 1992, another 1 million yuan was paid; On January 8, 1993, at the request of XX Station, an advance payment of 200000 yuan was made, with a total transfer fee of 3.7 million yuan paid. According to the agreement, xx station transferred the housing archives materials to xx association, and xx association applied for the housing property rights certificate from the Changsha Housing Property Rights Supervision Office on December 26, 1992. During the performance of the agreement, xx Station was approved by the Changsha Municipal Government on November 5, 1991 to acquire 12.9 acres of land in the Martian Development Zone of Changsha as a new station site. Construction began in April 1992. From October of the same year to February 1993, xx station sent six letters to xx meetings, requesting an increase in transfer fees, citing rising prices of building materials, changes to construction contracts, severe shortage of funds, difficulty in continuing the project, and inability to relocate and deliver houses on schedule. Xx will verbally notify xx station to strictly abide by the agreement and not agree to increase the transfer fee. XX Station failed to deliver three residential buildings to XX Society as agreed by the end of February 1993. XX Society subsequently filed a lawsuit with the court, demanding that the court order XX Station to fully fulfill the contract and bear the liability for breach of contract compensation. In the lawsuit, based on the application of XX Society, the Hunan Provincial High People's Court ruled to preserve the property of the new site of XX Station, that is, without the permission of the court, XX Station shall not transfer the real estate of the new site without authorization. In the first instance trial, xx will demand termination of the contract on the grounds that xx station's breach of contract makes it unnecessary to continue performing the contract, and xx station also agrees.

The Supreme People's Court believes that the two parties, after equal consultation and approval from their respective superior authorities, have also completed the procedures for real estate allocation and transfer at the Changsha Municipal People's Government and its relevant departments. Therefore, the signed Real Estate Paid Allocation and Transfer Agreement is legal and effective. The appeal reason for the claim made by xx station that the property transfer procedures have not been completed, that is, xx will not have obtained the property ownership certificate, and the agreement has not yet taken effect, cannot be established. The breach clause of paying a compensation of 3% for one day of overdue payment as stipulated in the agreement, referring to the relevant legal provisions on contract breach liability, is obviously too high. Therefore, the original court revoked this clause in the agreement and confirmed that the remaining parts remained valid, which is correct. After the agreement is signed, xx will pay the transfer fee to xx station as agreed. XX Station cannot use the excuse of rising prices of building materials, changes in construction contracts, and severe shortage of funds to delay the delivery of three residential buildings to XX Society. XX Station has violated the agreement and caused economic losses to XX. According to Article 106 of the General Principles of the Civil Law of the People's Republic of China and the agreement between the two parties, it shall bear the liability for breach of contract compensation. The Supreme People's Court also believes that the original trial court found the facts clear, but there were improper handling of this case.

Firstly, the economic loss of XX should be the difference between the original agreed price of the real estate transferred by both parties and the current market price. This price difference already includes the interest loss of 3.7 million yuan paid by xx to xx station for the transfer fee. The original court ruled that while xx station compensated xx station for its economic losses, it was inappropriate to also pay interest on the transfer fee. In addition, the original court ruled that the economic loss of xx (i.e. the difference between the original agreement price and the current market price) was 2.75 million yuan. Compared with the current real estate market price, this difference is relatively low and should be appropriately increased.

Secondly, the court judgment should handle the substantive issues of the dispute between the two parties and the litigation costs in accordance with the law. Xx will require xx station to offset the payable amount with the price of transferring its new address's real estate. This request from xx station can only be considered for enforcement if xx station is unable to fulfill the payment obligation determined by the judgment and the court decides to enforce it. It is also inappropriate for the original court to include possible enforcement measures in the judgment.

The Supreme People's Court made a judgment on October 30, 1993 in accordance with Article 57, Article 112, Article 115 of the General Principles of the Civil Law, and Article 153, Paragraph 1, Item 2 of the Civil Procedure Law of the People's Republic of China: 1. uphold the first item of the original judgment; 2、 Revoke the second and third items of the original judgment; 3、 XX Station refunded 3.7 million yuan of transfer fee to XX Club; 4、 Xx station pays xx association a compensation of 3 million yuan