Is it advisable to stop loan for mandatory loans?This is the correct way to defend rights

21st Century Business Herald Reporter Tang Jing Beijing report

Mr. Xuan, the owner of Wuhan Rotten Real Estate Greenland Xinghe painting, lamented, "I don't understand, the ground is sold by the Donghu High -tech Zone, the developer was recruited by the Donghu High -tech Zone, the down payment unit price was agreed, and the loan interest rate was set by the bank. All the rules can be said to be set by the government, developers, and banks. Now they have stopped working. They all say that there is no way. Is there a way for the owner? "

The owners of the bad tail and the loan repay had no door, and finally came up with a "method" that was not a way -collectively stop loan. Recently, the owners of the tail buildings in many places have issued a statement that they must be forced to stop repayment of loans until the relevant projects are completely resumed. Their basis is that in the process of pre -sale of houses, various loan banks have different degrees of illegal issuance loans and failure to fulfill the obligations of fund supervision banks. The owner requested that the losses caused by forced loan were jointly borne by other stakeholders such as banks that lended loans and government departments with poor fund supervision.

Huang Xingchao, a lawyer of Beijing Anjie Law Firm, told a reporter from the 21st Century Business Herald that the so -called "mandatory loan" of buyers is essentially a means of rights protection. This fierce means of rights protection has an extremely profound realistic background: Generally speaking, banks and developers have in -depth cooperation. During the signing stage, the buyers' options for mortgage banks are extremely limited. As a loan bank, if the mortgage funds can be assigned to the regulatory account in accordance with the regulations; or the supervision bank of the pre -sale funds, it can actively fulfill the obligations of fund supervision and the expenditure of pre -sale funds. Essence Buyers will not fall into the situation of "money rooms".

However, the current situation is that the owners who pay the down payment in full and pay the loan on schedule will not only have two rooms, but also have the risk of being included in the list of dishonesty because of the suspension of pre -sale funds. Not only did he collect loans and interest, but also the owner who had the right to stop loan to the court.

Who is responsible for the end of the room?

A huge controversy appeared in the seemingly absurd contradictions. Should the risk of the rotten tail building be borne by the owner's group?

Lawyer Zhu Yicong, a senior partner of Beijing Yingke (Shenzhen) Law Firm, pointed out to the 21st Century Business Herald that the emergence of rotten tail buildings should have certain responsibilities in addition to developers themselves, land approval, planning review, sales, sales, sales, sales The regulations and other links require the regulatory constraints of local governments. The lack of regulatory supervision of any ring will bring hidden dangers of bad tails. Therefore, the local government should also bear the corresponding responsibilities and take the lead in promoting the problem solving.

Zhu Yicong explained that the relationship between the house purchase contract between the owner and the developer, the relationship between the mortgage loan contract between the owner and the bank was two independent contractual relationships. If the real estate is rotten and the owner cannot collect the house on time, the developer will violate the commodity housing sales contract. The owner may require the developer to bear the corresponding breach of contract in accordance with the law and the contract. If the bank has an act of illegal lending and failing to perform the obligations of fund supervision during the pre -sale of the house, the owner can report to the CBRC to report to the CBRC and ask him to bear the corresponding legal responsibilities.

Lawyer Li Xiaonan, Beijing Zhou Tai Law Firm, believes that if the bank does have illegal acts such as illegal lending and inadequate fund supervision, the administrative department shall be punished by the administrative department; Personnel may have to bear the responsibility of negligence. There is no precedent for banks or local governments to bear civil liability caused by the rotten real estate.

From the perspective of the lawyer's statement, even if the behavior of local governments, loan banks, and fund supervision banks is indeed flawed, it is also to account for accountability by the superior authority, which has no direct relationship with the owner's ability to dismiss the repayment obligations.

Bu Xiangrui, director of the Academic Committee of the Southern Finance and Economics Research Institute, told reporters that the problem of solving the tide of loan needs to be carried out under the large framework of the spirit of contract and the principles of the rule of law. The parties need to confirm their rights through legal procedures. Only by solving the problem through legal procedures can it be more conducive to protecting its legitimate rights and interests. Any party should fully understand the legal consequences of contract default or dishonesty.

Unauthorized suspension of loan cannot lift the obligation to repay loan repayment

Lawyer Li Xiaonan, Beijing Zhoutai Law Firm, told reporters of the 21st Century Business Herald that the current mortgage loan model in my country is essentially composed of two legal relationships. One is the relationship between the commercial houses between the owner and the developer. The guarantee borrowing contract relationship between owners, banks, and developers. Popular understanding is that the owner pays the down payment to the developer; the owner applies to the bank to pay the dealer's end payment of the developer, and the developer provides a guarantee for the owner to the bank's loan.

Li Xiaonan believes that the rotten situation of the house does not mean that the loan contract is lifted. In this case, the owner cannot stop the loan repay. The contract corresponding to the rotten house is the commodity house trading contract. The main obligations of the commodity housing buying and selling contracts pay the purchase payment for the owner, and the developer deliver the house and apply for a property right certificate. Therefore, the owner can only claim the liability for breach of contract to the developer according to the commodity housing sales contract.

Li Xiaonan explained that the main obligations of the loan contract provided the bank to provide the owner to provide the owner, and the owner repaid the principal and interest from the bank. Here we need to ask the owners to note that the bank's illegal issuance of loans and fund supervision obligations are not in place. It is not the obligation of the bank in the loan contract, but the obligation of the bank based on the obligations of the administrative management regulations. Essence The bank has no obligation to ensure that developers perform their contractual obligations, and the bank's own lending obligations have been fulfilled. Therefore, the owner cannot investigate the bank's default responsibility, and it cannot stop the repayment on the grounds of the development of the developer. Otherwise, the owner constitutes a breach of contract, not only cannot be exempted from the principal and interest, but also pays additional liquidated damages. In addition, at the legal level, the owner usually stipulates in the loan agreement signed with the bank when buying a house. Any disputes in conditions or other matters have nothing to do with the lender. The lender has the right to choose to continue to perform this contract or request the borrower to repay all or part of the loan under this contract in advance.

How can owners protect their rights and interests?

A senior bank industry person told the 21st Century Business Herald that the owner of the rotten tail building is not enough to protect his rights and interests. If you want to successfully defend your rights, you must first clarify the following four legal relationships: one is the borrowing relationship between the borrower and the bank, the other is the development of the developer's loan of bank loans, and the third is the bank's supervision obligations of the developer's supervision account funds. Four It is the regulatory obligation of the government regulatory authorities. The first three of them are civil legal relations, and the fourth is administrative legal relationship.

If the loan of the borrower does not repay, it constitutes a default in the first legal relationship; if the developers who should have shared the responsibility of repayment are unable to pay back the repayment, they will form a default in the second legal relationship; in the third one; in the third one In legal relations, if the bank has not fulfilled the supervision responsibility for the supervision account and is a supervision fault, the borrower can fight the right of the bank's claim to repay; in the fourth legal relationship, if the government department is not in place, the borrower may be able to Purly filed an administrative lawsuit.

He pointed out to the reporter that the proposed buyers were prosecuted by the developer to violate the "Commodity Housing Sales Contract" and use the wrong party and the bank as a joint defendant to achieve the purpose of not fulfilling the repayment obligation.

Zhang Dawei, chief analyst of Zhongyuan Real Estate, also proposed a similar plan. He pointed out that generally speaking, after the house is rotten, if the buyer does not take the initiative to take action, bank loans must be repaid. If it is not paid or disconnected, its social credit will be affected. Daily travel, work will become a problem, and it will be forcibly executed by the court.

Zhang Dawei suggested that first of all, the real estate developer should be found to terminate the "House Purchase Contract". Immediately after collecting good evidence, the "Loan Contract" with the bank was lifted through the court.

Lawyer Li Xiaonan reminded that due to the rotten project, the developer delivered the house overdue, and the commercial housing trading contract generally agreed that the developer to deliver the house overdue for more than 60 or 90 days, and the owner had the right to lift it. Therefore, the owner can relieve the commercial housing buying and selling contracts accordingly.

At the same time, it is advocated that the commodity housing sales contract and the loan contract belong to the contract joint, the commodity housing sales contract is terminated, the contractual purpose of mortgage loans to buy a house cannot be achieved, and the loan contract should be canceled. After the contract is terminated, the developer shall return the down payment collected to the owner, return the bank loan to the bank, and bear the liability and/or compensation loss to the owner, including the interest loss paid by the bank to the bank.

Attorney Zhu Yicong believes that when the owner encounters the rotten real estate, he should first understand the real cause of the rotten tail and the specific situation of the current house, and conduct corresponding rights protection for different situations. If the real estate is rotten and the overall project is high, when the developer is unable to pay the house due to the tension of funds, the buyer can request the developer to pay a liquidated damage in accordance with the agreement between the two parties. If the real estate is indeed unable to deliver the house, the buyer can ask the commercial housing to buy and sell contracts and related mortgage loans. If the prospects of the real estate are acceptable, the development of the developer is unable to stop the construction due to the non -offset of the debt, and the house cannot be delivered. Buyers can promote relevant government departments to guide developers and relevant financial institutions' debt reorganization to ensure the delivery of the property.

Cui Guangcan, director and professor of the Real Estate and Urban Development Research Center of Shanghai Normal University, believes that some owners currently appear to stop loan repayment need to pay attention. Although the house purchase contract is different from the main body involved in the credit contract, the loan bank's loan bank may not be a bank with pre -sale funds, but the owner's stop repayment may generate the risk of damage to personal credit and increase the bank's bad debts. This demonstration effect may be possible. It will bring a variety of risks. Therefore, it is recommended that relevant financial management departments and local governments pay attention to this phenomenon in time, introduce targeted measures, resolve risk risks of specific projects, ensure that the legitimate rights and interests of the buyers are not damaged, and strive to maintain the healthy development of the industry.

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