Lawyer's character

"We went to the real estate registration department to conduct due diligence. According to the feedback from the window staff, the parking spaces are all under the name of the real estate developer and there are no other rights holders." said the old lawyer.

"In addition to going to the relevant departments to investigate, have you ever asked the owners of the community? With so many parking spaces in use, don't you realize that the parking spaces may have been sold, or that there are other people's rights in the parking spaces?" asked the male judge .

While the old lawyer was thinking about countermeasures, the young lawyer beside him misunderstood the old lawyer's meaning and said: "At that time, the developer told us that the owners parked randomly, and most of the parking spaces were used by the developers themselves."

As soon as the young lawyer spoke, the old lawyer's heart skipped a beat and he glared at her, blaming her for talking too much. But the words have been spoken and cannot be taken back, so the old lawyer can only think of other options.

"Article 36 of the "Commercial Bank Law of the People's Republic of China" stipulates that...commercial banks shall strictly examine the guarantor's repayment ability, the ownership and value of mortgages and pledges, and the feasibility of realizing mortgage rights and pledge rights. .

Article 27 of the "General Principles of Loans" stipulates that loan investigation: After accepting the borrower's application, the lender shall investigate the borrower's credit rating and the legality, safety, profitability, etc. of the loan, and verify the collateral, quality, etc. properties and guarantors, and determine the risk of the loan.

The above-mentioned laws and regulations clearly stipulate that banks have the obligation to carefully review the collateral when setting up guarantees for external loans.

As a professional financial institution, the respondent bank knew that the collateral (parking space) might have the rights of others if someone used it, but it did not investigate further. It only listened to the developer's words and issued the investigation document. You really did what was necessary. Duty of care? "The male judge said.

The old lawyer felt unhappy after being told by the judge, but so what, he could only endure it. His old face had been trained to be invulnerable to fire and water. But the young lawyer next to him looked a little unnatural. She felt that the judge was targeting them.

“The respondent believes that when the appellant purchased the parking space, there was already a prior mortgage right on the parking space, that is, the appellant’s purchase of the parking space was a sale and purchase during the existence of the mortgage right.

The appellant purchased the parking space despite knowing that there was a mortgage on it. He should have known that there was a risk that the parking space could not be transferred. Even if the parking space involved in the case had not been mortgaged to the appellee at the time of sale, there was still the possibility of "one parking space being sold twice" or being mortgaged again to a third party. risks of.

Therefore, regardless of whether the respondent conducted further investigation, the appellant was at fault. "The old lawyer used his brains and finally thought of a way to confront the judge. Of course, this kind of confrontation was in disguise. He didn't dare to confront him directly, because what they said was right, the bank did make mistakes.

"The appellee, we said that the appellant bought and sold parking spaces during the mortgage period. Who is the mortgagee?" asked the male judge.

"The mortgagee is an individual. The specific name is recorded in the case file of the first instance, but I don't remember it." The old lawyer said.

"Appellant, do you know about this?" The male judge looked at Fang Yi.

"I was not the agent in the first instance of this case. When I reviewed the case file, I saw that when the appellant purchased the parking space, there was indeed a mortgage on the parking space, but the mortgage was canceled after the appellant purchased the parking space. The appellant believes that the mortgage has been cancelled. The canceled mortgage right does not constitute an obstacle to the transfer of the parking space." Fang Yi said.

"Appellee, is that so?" the male judge asked.

"Yes, before the appellee made the mortgage, the previous mortgage on the parking space was canceled. But this does not exempt the appellant from his fault." The old lawyer insisted on this point.

"Do the previous mortgagees have anything to do with you?" the male judge asked.

"It doesn't matter," the old lawyer said.

"Since it has nothing to do with this case, what is the legal basis for you to claim that the appellant was at fault?" the male judge asked.

The old lawyer lost his temper. The little girl next to him felt too aggrieved and wanted to argue, but the old lawyer stopped her. The old lawyer knew that there was no point in arguing like this.

He was thinking about how to go back and explain to the people at the bank, because his law firm had sent people to work with the people on the bank to make all the collateral. If this case failed because of due diligence issues, I am afraid that the law firm would want to follow up with him again in the future. It will be difficult to cooperate with banks, and their own business may also be affected.

Fang Yi, who was sitting opposite the appellant's seat, was in a good mood at this time, but he did not dare to take it lightly because he had heard from a classmate who was a lawyer in the capital that the judge would reprimand or chase one party to the death in court. Asking questions, or even digging into the graves of ancestors, does not mean that the judge will definitely rule in favor of the other party.

It could be that the judge was offended by something the other party said, or the judge had a quarrel with his wife that morning and wanted to vent, or he just wanted to figure out some issues. In short, the judge’s heart is as deep as the ocean, and many times he cannot figure it out!

…

"Now let's make the final statement, the appellant's statement." the male judge said.

"The appellant believes that the appellant enjoys civil rights and interests in the parking space involved in the case that are sufficient to exclude enforcement by the People's Court, and requests the court to order to revoke the first-instance judgment, change the judgment in accordance with the law, or remand for retrial, for the following reasons:

1. Although the parking space purchased by the appellant does not belong to a residence, it is a necessary facility to meet the owner's residential needs. Paragraph 1 of Article 74 of the Property Law of the People’s Republic of China stipulates: ‘Within building zones, parking spaces and garages planned for parking cars should first meet the needs of the owners’.

The "Planning and Design Code for Urban Residential Areas" stipulates: 'Residential areas must be equipped with supporting parking lots and garages for residents' cars (including commuter cars...'

The above-mentioned laws and normative documents clearly stipulate the mandatory obligation of construction units to design and build parking spaces and garages to meet the needs of owners during the construction stage of urban commercial housing, and assign specific uses to parking spaces.

In a modern society where private cars have increasingly become the daily means of transportation for ordinary families, the right to use parking spaces is closely related to the owner's right to live, and has the attribute of meeting the basic living needs of residents.

In this case, the appellant is the owner of a residential complex. The parking space he purchased is necessary for the living facilities of the residence he purchased, and it has been used to park vehicles since the purchase.

Therefore, the parking space purchased by the appellant has the necessary residential right attributes that are specially protected for "commercial housing purchased by consumers" in Article 29 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts", and Article 29 of the Provisions of the Supreme People's Court on Certain Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts should be used. Article 29.

2. After the appellant signed the "Parking Space Subscription Letter" with the developer, he paid all the money as agreed, and the developer issued an invoice to the appellant. "