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王某与赵某等土地承包经营权转包合同纠纷上诉案

王某与赵某等土地承包经营权转包合同纠纷上诉案北京市第一中级人民法院民事判决书(2012)一中民终字第7952号上诉人(原审被告)王某。委托代理人张某。被上诉人(原审原告)赵某。委托代理人柳某。被上诉人(原审第三人)永创兴业(北京)置业有限公司。法定代表人刘明辉,总经理。委托代理人朱某。委托代理人刘某。上诉人王某因与被上诉人赵某、永创兴业(北京)置业有限公司(以下简称置业公司)土地承包经营权转包合同纠纷一案,不服北京市海淀区人民法院(2012)海民初字第9546号民事判决,向本院提起上诉。本院于2012年6月13...

王某与赵某等土地承包经营权转包合同纠纷上诉案

北京市第一中级人民法院

民事判决书

(2012)一中民终字第7952号

上诉人(原审被告)王某。

委托代理人张某。

被上诉人(原审原告)赵某。

委托代理人柳某。

被上诉人(原审第三人)永创兴业(北京)置业有限公司。

法定代表人刘明辉,总经理。

委托代理人朱某。

委托代理人刘某。

上诉人王某因与被上诉人赵某、永创兴业(北京)置业有限公司(以下简称置业公司)土地承包经营权转包合同纠纷一案,不服北京市海淀区人民法院(2012)海民初字第9546号民事判决,向本院提起上诉。本院于2012年6月13日受理后,依法组成由法官阴虹担任审判长,法官魏应杰、刘慧参加的合议庭,于2012年6月20日公开开庭进行了审理。上诉人王某及其委托代理人张某、被上诉人赵某及其委托代理人柳某、置业公司的委托代理人朱某到庭参加了诉讼。本案现已审理终结。

赵某在一审中起诉称:1999年3月20日,赵某与北京市海淀区永丰乡六里屯村农业服务公司签订了《海淀区农村种植业(菜、粮)承包合同书》,赵某承包了村里81.34亩土地。2001年3月15日,赵某将承包的土地全部转包给王某。2005年,7.5亩土地被征用,赵某和王某按照3∶7的比例进行了补偿款的分配。2010年11月,73.84亩土地被置业公司征用,补偿款已被王某领取7 753 200元。依据赵某与王某签订的协议书第3条在经营期内,如有国家占地、乡村占地,王某与赵某共同享受占地费3、7开,王某占7成,赵某占3成的约定,赵某应分到2 325 960元。诉讼请求:1、请求法院解除赵某与王某签订的协议;2、判令王某给付被征土地地上物补偿款2 325 960元;3、本案诉讼费由王某负担。。

王某在一审中答辩称:王某拿到的是地上物补偿,即树木的补偿款,没有拿到过占地费,王某与赵某约定的是占地费分成,没有提到地上物的分割,故不能给赵某付款。

置业公司在一审中述称:置业公司服从法院依法作出的裁判。因为没有占地费的法律概念,置业公司都是对地上物进行补偿。赵某、王某之间的3、7分成是他们自己约定的,置业公司已经支付了其中的7成补偿款。

一审法院审理查明:赵某(曾用名赵甲)于1999年承包了六里屯村81.34亩土地。2001年3月15日,赵某将承包的土地转包给王某,双方签订协议书(以下简称3.15协议),约定:赵某自愿将自己所承包的81.34亩地转给王某种植,期限2年。在2年期间,如果赵某收地不让种,愿赔偿王某所有树苗的损失。如果王某中途退地,愿赔偿赵某年20万元损失费。在经营期内,如有国家占地、乡村占地,王某与赵某共同享受占地费3、7开,王某占7成,赵某占3成。2年合同期满后,赵某与王某并未终止合同,双方继续履约。王某在土地上种植果树,其向赵某支付承包金已付到2010年年底。

2005年3月,上述土地中的7.5亩被921工程指挥部征收,该指挥部支付地上物补偿208 000元,赵某领取93 750元(45%),王某领取114 250元(55%)。2010年10月,上述土地中的73.84亩被置业公司因海淀区核心区建设先行起动区中大牛坊、小牛坊、六里屯、皇后店、东玉河及小辛店腾退、安置及工程建设项目征收。置业公司就地上物补偿问题与赵某、王某进行协商,2人对地上物归属、地上物补偿总价按150000元/亩补偿无异议,但就补偿款分配比例未达成一致意见。置业公司与王某签订补偿协议,并向王某支付了地上物补偿款7 753 200元(系地上物补偿款总额的70%),剩余30%计3 322 800元暂留该公司。

一审诉讼中,赵某对3.15协议中涉及的占地费解释为占地补偿所得的一切费用。王某解释为就是土地费,不包括地上物补偿。

一审法院判决认定:赵某将其承包的土地转包给王某,双方通过签订3.15协议建立土地承包经营权转包合同关系,该合同合法有效。协议中关于如有国家占地、乡村占地,王某与赵某共同享受占地费3、7开,王某占7成,赵某占3成的约定,该院认为是双方对地上附着物补偿费的约定,赵某要求按此比例进行分配,应当予以支持,理由如下:

第一,我国相关的土地管理法律法规规定,国家征收耕地给付的补偿包括土地补偿费,安置补偿费、地上附着物和青苗补助费等。其中土地补偿费归农村集体经济组织所有;安置补偿费支付给农村集体经济组织,或是由农村集体经济组织基于统一安置考虑负责管理和使用,或是发给被安置村民个人等;地上附着物和青苗补助费等则归所有者所有。显然,本案中赵某与王某约定的所谓的占地费非法定用语。考虑到二人无权对土地补偿费和安置补偿费的归属、管理、使用和分配等进行商定,且王某在土地上种植的是果树,故占地费具体指向的是地上附着物补偿费。

第二,涉案土地被征收后,在确定地上附着物归属、补偿费价格时,赵某与王某一同与置业公司进行了协商。这表明了赵某获取相应地上附着物补偿费,王某是认同的,只是两人对分配比例产生分歧。

第三,赵某与王某在之前7.5亩土地被征收时,就地上附着物补偿进行了分配,双方虽没有严格按照3∶7的比例(赵某的分配数额已超出了30%),但这充分表明王某是同意向赵某支付地上附着物补偿费的。

第四,赵某将其承包的土地转包给王某,通过收取承包费获得利益。两人中途因客观原因不能继续履约后,王某不再向赵某支付承包费,赵某因此丧失合同预期利益,其从王某处获得一定的地上附着物补偿费也是对其丧失的合同预期利益的一种变相补偿。该院认为这也是赵某与王某约定按比例分配占地费的一个原因。

综上,赵某与王某在3.15协议中约定的占地费实为地上附着物补偿费,两人的分配比例为3∶7,置业公司应支付的地上附着物补偿费共计11 076 000元,赵某应分得3 322 800元。王某应分得7 753 200元。同时,考虑到该分配比例是赵某与王某之间的约定,故赵某应从王某处获得补偿费,即若王某自置业公司处一次获得全部补偿费,则王某应付给赵某30%;若分次获得,则应将每次的30%付给赵某。就本案而言,王某目前已获得7 753 200元,其应分给赵某2 325 960元;若王某日后获得剩余的 3 322 800元,应分给赵某996 840元。但王某获得7 753 200元补偿费后,却拒绝与赵某按比例进行分配,该行为构成违约,该院可判决王某将其中的30%计2 325 960元支付给赵某,但为尽早解决赵某与王某之间的纠纷,简化置业公司、赵某、王某之间的补偿费支付流程,避免赵某、王某在剩余款项支付问题上再生纷争,并考虑到置业公司留存的补偿费数额与赵某应获得的补偿费数额吻合等情况,该院认定置业公司向王某支付的7 753 200元补偿费全归王某所有,剩余3 322 800元全归赵某所有,结合赵某在本案中的诉请数额,判令置业公司向赵某支付2 325 960元,剩余的996 840元,置业公司可在本案之外直接付给赵某。置业公司向赵某付款完毕后,意味着赵某与王某基于3.15协议产生的补偿费分配纠纷了结、置业公司对王某的补偿费支付义务全部履行。

The land such as Wang Mou and Zhao Mou contracts record of appeal of issue of subcontract of right of administration

Beijing court of the first intermediate people

Civil judgment

(2012) one in civilian eventually word the 7952nd

Appellant (first trial the accused) Wang Mou.

Attorney Zhang Mou.

Appellee (first trial accuser) Zhao Mou.

Attorney Liu Mou.

Appellee (first trial the 3rd person) always achieve start line of business (Beijing) buy course of study limited company.

Ming Hui of legal representative Liu, general manager.

Attorney Zhu Mou.

Attorney Liu Mou.

Appellant Wang Mou because with appellee Zhao Mou, always achieve start line of business (Beijing) buy course of study limited company (company of estate of buy of the following abbreviation) land contracts dispute of subcontract of right of administration one case, refuse to obey court of people of Beijing Haidian division (2012) Hai Minchu word the 9546th civil judgment, mention to this academy appeal. This academy was accepted on June 13, 2012 hind, comprise lawfully hold the position of a presiding judge by judge Yin Hong, the collegiate bench that judge Wei Yingjie, Liu Hui joins, undertook cognizance at making public open a court session on June 20, 2012. The attorney of company of estate of Zhao Mou of appellant Wang Mou and its attorney Zhang Mou, appellee and its attorney Liu Mou, buy Zhu Mou joined suit to front courtyard. This case already was tried now terminative.

Zhao Mou sues in first instance say: On March 20, 1999, zhao Mou and Beijing Haidian Ou Yongfeng company of service of agriculture of village of 6 lis of station signed countryside " Haidian area rural area grows line of business (dish, grain) contract contract book " , zhao Mou contracted 81.34 mus of land in the village. On March 15, 2001, all subcontract gives the land that Zhao Mou will contract Wang Mou. 2005, 7.5 mus of land by commandeer, zhao Mou and Wang Mou the allocation that according to 3 ∶ the scale of 7 undertook compensating a paragraph. In November 2010, 73.84 mus of land by take over for use of buy estate company, compensation fund already was gotten by Wang Mou 7 753 200 yuan. The agreement that signs according to Zhao Mou and Wang Mou is being managed the 3rd times period inside, if the country is covered an area of, countryside is covered an area of, wang Mou and Zhao Mou are enjoyed jointly cover an area of cost 3, 7, wang Mou is occupied 7 into, zhao Mou seizes 3 become agreements, zhao some part of one's job arrives 2 325 960 yuan. Litigant request: 1, request court removes the consultative;2 that Zhao Mou and Wang Mou sign, sentence your Wang Mou to give pay the content on land of the land that be asked for to compensate paragraph 2 325 960 yuan this;3, case legal cost by Wang Mou burden. .

Wang Mou rejoins in first instance say: What Wang Mou takes is compensation of the content on the ground, compensate a paragraph arboreously namely, had not taken cover an area of cost, what Wang Mou and Zhao Mou agree is to cover an area of cost to be divided into, break up without what mention the content on the ground, reason cannot pay to Zhao Mou.

Buy estate company narrates in first instance say: The judgment that obedient court of buy estate company makes lawfully. Because do not have the legal concept that covers an area of cost, buy estate company is right the content on the ground undertakes compensating. Between Zhao Mou, Wang Mou 3, be being become 7 minutes is themselves agreement, buy estate company had paid among them 7 into compensation fund.

Cognizance of court of first instance finds out: Zhao Mou (ever used a Zhao Jia) contracted 1999 village of 6 lis of station 81.34 mus of land. On March 15, 2001, zhao Mou gives Wang Mou the land subcontract that contract, both sides signs agreement (the following abbreviation 3.15 agreements) , agreement: 81.34 mus of ground that Zhao Mou contracts him of one's own accord turn to Wang Mou to cultivate, deadline 2 years. In 2 years during, if Zhao Mou receives the ground not to let plant, wish to compensate for Wang Mou the loss of all sapling. If Wang Mou midway returns the land, wish to compensate for Zhao some year expenses of 200 thousand yuan of loss. Managing period inside, if the country is covered an area of, countryside is covered an area of, wang Mou and Zhao Mou are enjoyed jointly cover an area of cost 3, 7, wang Mou is occupied 7 into, zhao Mou is occupied 3 into. After 2 years of termination of contract, zhao Mou and Wang Mou did not terminate a contract, both sides continues to honor the agreement. Wang Mou plants a fruit tree on land, its pay to Zhao Mou contract gold already paid 2010 the end of the year.

March 2005, afore-mentioned land are collected 7.5 mus medium by 921 engineerings command post, this headquarters pays the content on the ground to compensate 208 000 yuan, zhao Mou gets 93 750 yuan (45%) , wang Mou gets 114 250 yuan (55%) . October 2010, because area of Haidian area core builds go ahead of the rest,73.84 mus in afore-mentioned land are started by buy estate company Ji Xiaoxin inn vacates inn of 6 lis of lane of big Niu Fang, calf, collect in the area, empress, Dong Yuhe retreat, find a place for reach. The content on on the spot of buy estate company compensates problem and Zhao Mou, Wang Mou to undertake negotiation, total prices of compensation of the content on attributive to the content on the ground, ground presses 2 people 150000 yuan / mu compensation is consentient, but with respect to compensation paragraph allocation scale did not reach unanimous opinion. Buy estate company and Wang Mou sign compensation agreement, paid the content on the ground to compensate paragraph 7 753 200 to Wang Mou yuan (the 70%) that fastens the content on the ground to compensate money total, odd 30% plan 3 322 800 yuan of short duration leaves this company.

In first instance lawsuit, zhao Mou covers an area of cost to explain all cost that compensate earning to cover an area of to what involve in 3.15 agreements. Wang Mou explanation is even if land is expended, do not include compensation of the content on the ground.

Court decision of court of first instance maintains: The land subcontract that Zhao Mou contracts his gives Wang Mou, both sides contracts through signing 3.15 agreements to build land subcontract of right of administration concerns, this contract is lawful and active. There is a country to cover an area of about be like in the agreement, countryside is covered an area of, wang Mou and Zhao Mou are enjoyed jointly cover an area of cost 3, 7, wang Mou is occupied 7 into, zhao Mou seizes 3 become agreements, this courtyard considers as both sides to amend the agreement of cost to the attachment on the ground, zhao Mou asks to undertake allocation by this scale, ought to give support, reason is as follows:

The first, laws and regulations of our country's relevant land government law sets, the country collects farmland to include land to compensate cost to paid compensation, find a place for allowance expends the attachment on compensation expenses, ground and young crops etc. Among them land compensation expenses puts in rural collective economy 's charge to organize all; to find a place for compensation expenses pays rural collective economy the organization, or it is by rural collective economy the organization is based on unified find a place for the consideration is in charge of manage and be being used, or it is to grant the attachment on the; ground such as individual of villager be findinged a place for and young crops accessorial fee wait to return possessory all. Apparent, what the Zhao Mou in this case and Wang Mou agree is so called cover an area of cost to decide term illegally. The attributive, management that has no right to compensate Fei Hean buy to compensate cost to land considering 2 people, use and allocate etc undertake deciding, and what Wang Mou cultivates on land is a fruiter, reason covers an area of cost specific those who point to is expenses of compensation of the attachment on the ground.

The 2nd, after experience case land is collected, in the attachment on firm ground attributive, compensation expends the price when, zhao Mou and king some undertook negotiation with buy estate company together. This showed Zhao Mou gets the attachment on corresponding ground to compensate cost, wang Mou is self-identity, just two people produce difference to allocating proportion.

The 3rd, zhao Mou and Wang Mou are in before when 7.5 mus of land are collected, compensation of the attachment on on the spot undertook allocation, although both sides is done not have strict according to 3 ∶ the scale of 7 (Zhao Mou's allocation amount already exceeded 30%) , but this shows Wang Mou is to agree to pay the attachment on the ground to compensate cost to Zhao Mou adequately.

The 4th, the land subcontract that Zhao Mou contracts his gives Wang Mou, contract through collection cost acquires an interest. After two people midway cannot continue to honor the agreement because of objective reason, wang Mou pays to Zhao Mou no longer contract cost, zhao Mou loses a contract to expect an increase accordingly, its obtain the attachment on fair land to compensate cost from king somewhere also is the contract that loses to its one kind when expect an increase coverts compensation. This courtyard thinks this also is Zhao Mou and Wang Mou agreement assign an account that covers an area of cost in proportion.

On put together, zhao Mou and Wang Mou cover an area of cost fact to compensate cost for the attachment on the ground in what agree in 3.15 agreements, the allocation of two people scale is 3 ∶ 7, expenses of compensation of the attachment on the ground that buy estate company should pay totals 11 076 000 yuan, zhao some part of one's job gets 3 322 800 yuan. Wang Mou part of one's job gets 7 753 200 yuan. In the meantime, allocating proportion considering this is the agreement between Zhao Mou and Wang Mou, reason Zhao Mou should obtain compensation to expend from king somewhere, if Wang Mou is in from buy estate company,obtain total compensation to expend namely, criterion if divide,Wang Mou deals with Zhao Mou 30%; second obtain, answer will every time 30% pay Zhao Mou. With respect to this case character, wang Mou already obtained 7 753 200 at present yuan, its part of one's job gives Zhao Mou 2 325 960 yuan; is like Wang Mou to obtain the rest 3 322 800 in the future yuan, part of one's job gives Zhao Mou 996 840 yuan. But Wang Mou obtains 7 753 200 yuan after compensation is expended, reject to undertake allocation in proportion with Zhao Mou however, this behavior makes break a promise, this courtyard can adjudicate Wang Mou general among them 30% plan 2 325 960 yuan pay Zhao Mou, but to settle the dispute between Zhao Mou and Wang Mou as early as possible, simplify the compensation expenses between buy estate company, Zhao Mou, Wang Mou pays flow, avoid Zhao Mou, Wang Mou to pay the second birth on the problem dispute in surplus money, the compensation that expends amount and Zhao Mou to should be obtained considering the compensation of keep of buy estate company expends the circumstance such as amount be identical, the 7 753 200 that company of estate of this courtyard cognizance buy pays to Wang Mou yuan compensation expenses puts in Wang Mou 's charge completely all, odd 3 322 800 yuan put in Zhao Mou 's charge completely all, combine Zhao Mou the appeal amount in this case, sentence company of your buy estate to pay 2 325 960 to Zhao Mou yuan, the rest 996 840 yuan, buy estate company can be besides this case pay Zhao Mou directly. Buy estate company pays to Zhao Mou after ending, the compensation cost that means Zhao Mou and Wang Mou to be based on 3.15 agreements to arise allocates company of estate of dispute finish, buy to be expended to Wang Mou's compensation pay obligation to be fulfilled entirely.

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