Failure to inform that there is a cemetery near the new house is a dishonest act
Interlocutor
Yang Qinfa, Director of the Institute of Real Estate Policy and Law, East China University of Political Science and Law
Deng Xiaojing, Associate Professor, Zhongnan University of Economics and Law
"Rules of Law Daily" reporter Wang Yang
"Rule of Law Daily" trainee reporter Bai Chuxuan
Reporter: Should there be cemeteries around the community, should the developer inform the buyers in advance? What do you think of the developer's failure to perform the obligation of notification on the ground that the cemetery is not within the red line?
Yang Qinfa: Informing you of your obligations as an operator can balance the rights and obligations of all parties to the contract. The duty of notification involves the entire process of contract formation, performance and termination.
As the obligor of notification, what should the developer tell consumers who are buyers? The contract law and the consumer rights protection law have their own emphasis on the provisions of the notification content. The contract law has made general provisions on the content of the notification obligation based on the principle of good faith. The Consumer Rights Protection Law is based on the information asymmetry between operators and consumers, and has more specific provisions on the content of notification. Article 8 of the Consumer Rights Protection Law stipulates that consumers have the right to know the true status of the goods they purchase or use, or the services they receive. The second paragraph of this article also provides specific examples. Developers do not specifically stipulate whether the surrounding environment of their development community, such as the existence of a cemetery, is an obligation to inform.
Houses are the basic material conditions for human survival, and the surrounding environment has a significant impact on the decision-making of house purchases. If there are funeral homes, cemeteries, etc. around the community, it is easy to connect people with unlucky messages such as death, which will affect the psychology of home buyers. These factors play an important role in whether or not the buyers buy the houses in the community, and the developer should inform them in advance. Considering commercial interests, developers tend to promote favorable conditions while concealing unfavorable factors. Therefore, from the perspective of legal regulation, the content of the obligation of notification should be unfavorable factors that have a significant impact on the purchase decision. Developers should not consider not being within the red line as a By not fulfilling the obligation of notification.
Deng Xiaojing: According to relevant regulations, my country's commercial housing is usually sold by real estate development companies or commissioned by real estate intermediary service agencies. Generally speaking, judging from the expressions in Article 500, Item 2 of the upcoming "Civil Code of the People's Republic of China", commercial housing sales entities including developers are obliged to directly and expressly inform the buyers of the housing community. Sizhi's land use, buildings and specific environment.
my country's current laws and regulations and other normative documents do not clearly define the distance between the community and the "cemetery". The "Regulations on Funeral and Interment Administration" only expressly prohibits the construction of graves in cultivated land and woodland; urban parks, scenic spots and cultural relics protection areas; reservoirs and river dams and water source protection areas; railways and highways on both sides of the trunk line. Therefore, "around the community" is actually a relatively vague concept. From their standpoints, perspectives and interests, sellers and buyers can easily form a distinct understanding and understanding.
It is not true that real estate developers or real estate intermediary service agencies believe that they do not need to perform their obligation to notify the situation "around the community" on the grounds that the cemetery is not within the red line. The so-called red line here should refer to the land use red line, which indicates the land use right acquired by the developer. When developing and constructing a community, it is usually necessary to retreat a certain distance from the red line. Although various local planning departments have different regulations on retreat, most of them are within a few meters. The range of the red line is very close to the range of the community. Just telling the four points within the red line is of little significance, and buyers have no way to know the environmental conditions around the community.
Reporter: There are cemeteries around the community, but the developer did not inform. Does it violate the principle of public order and good customs?
Yang Qinfa: Public order and good customs are composed of public order and good customs. Good customs refer to the ethical codes universally recognized and followed by all members of the society. The principle of public order and good customs in transaction relations mainly plays a role in preventing transactions from harming the country and public interests. Civil activities violate the ethical standards generally accepted by the society, and may not only cause damage to the parties, but also cause certain disturbances to social order. The principle of public order and good customs is a supplement to the jus cogens, and it can coordinate with various specific jus cogens rules to regulate and control civil activities. According to Article 153 of the General Principles of the Civil Law, "Civil legal acts that violate public order and good customs are invalid." In this case, public order and good customs have actually been concretized into legal rules and can be directly applied.
When judging whether a legal act violates public order and good customs, it is mainly based on the content of the legal act. The content mainly includes the content of the contract object that violates the public order and good customs, or the behavior prohibited by the implementation of public order and good customs, and the behavior required to prevent public order and good customs. The cemetery around the community is indeed easy to connect people and death, but this is not caused by the behavior of the developer. The developer does not inform the owner of the existence of graveyards around it. This is not a violation of public order and good customs, but a dishonest behavior that violates the principle of good faith.
Deng Xiaojing: In practice, there is no clear boundary between public order and good customs. What is "public order and good customs" is also difficult to establish the prevailing standard for identification. It is often necessary to start from the social development and the changes of the times and make comprehensive judgments in combination with the specific conditions of the actors and the acceptance of the public. As the basic principle of civil law, the principle of public order and good custom has the characteristics of generality, abstraction and orientation, and should not be applied too frequently to the solution of specific problems.
Developers who have not fulfilled their obligation to inform buyers of the existence of cemeteries around the community can be dealt with in accordance with the specific provisions of the Civil Law, even if there are certain difficulties in applying specific provisions, in accordance with Article 500 of the Civil Code of the People’s Republic of China The third item and Article 142 should also be attributed to the violation of the principle of good faith rather than the principle of public order and good customs.
Reporter: If there is a cemetery around the community, are the houses in the community a haunted house? How can home buyers defend their rights?
Yang Qinfa: The house with a cemetery around it is not exactly the same as a haunted house called by the people. The murder house referred to by the people generally refers to abnormal deaths in the house.
Buyers who have purchased a cemetery around the community can seek relief in accordance with the Civil Law, Contract Law, and Consumer Protection Law. Since there are cemeteries around the community, it is difficult to determine the amount of loss caused to buyers. Therefore, the consumer rights protection law is applicable in judicial practice. The Consumer Protection Law’s requirements for the obligation of notification of operators are higher than those of the Contract Law, and punitive damages can be applied to developers who have fraudulent acts. The failure of the operator to make the necessary notification obligation does not necessarily constitute fraud. Only when the developer deliberately concealed it, or even when the buyer inquired, the developer deliberately concealed it, before considering the application of fraud regulations.
Deng Xiaojing: There are cemeteries around the community, not because the houses in the community have problems, but because there are some factors in the surrounding environment that are unacceptable to most people. In this sense, the community houses with cemeteries surrounding them are not considered to be the so-called haunted houses. In the Hong Kong Special Administrative Region of our country, many local residents like to buy real estate around cemeteries with certain conditions because they believe in Feng Shui. It can be seen that the existence of cemeteries around the community is not a condition that cannot be accepted by buyers in all cases.
When buying or selling commercial housing, the developer and the buyer must sign relevant agreements in accordance with the law. For this reason, the developer is obliged to make necessary notifications of the houses for sale and surrounding conditions. If the developer fails to fulfill this obligation, and the buyer does not recognize and accept it based on traditional customs, etc., it can claim the rights according to the meaning of the civil legal act or the requirements of the rights and obligations of the contract. In response to this dispute, litigation is triggered. In different situations, the buyer can appeal to the court in accordance with the relevant provisions of the civil substantive law to rule that the developer revokes the contract or compensates for losses due to fraud, failure to perform contract obligations, in order to protect their rights .