Judgment Document No.: Supreme People's Court (2006) Min Yi Zhong Zi No. 47
Summary of the Trial:
There are many civil factors in the legal relationship between the parties in this case, but in the end, because the parties have not yet formed an equal subject relationship as required by the civil law, the minutes and documents of the municipal government office meeting on the relevant content of preferential policies are not civil contracts signed by the two parties through equal consultation, so this case does not fall within the scope of civil cases accepted by the people's court.
Case Facts:
In 1998, the municipal government implemented the economic development strategy of opening up and attracting investment, and used the government's preferential policies to attract social funds to participate in urban infrastructure construction. At that time, there was a tight heating situation in the eastern urban area of Daqing City, the municipal government planned to invest in the construction of central heating boiler room in the Wanbao area of Daqing City, due to the large amount of budget investment, the municipal government could not afford it, so the boiler room originally planned to be built by the government with an investment of 600 million yuan was stopped, and the construction was changed by social investors. On April 27, 1998, Zhenfu Company submitted to the municipal government the "Instructions of Daqing Zhenfu Real Estate Development Co., Ltd. on Investing in the Construction of the New Village Central Heating System Project", stating that it voluntarily attracted investment to build Dongfeng New Village (District 9) central heating boiler room and supporting projects (pumping station, pipe network, special railway line) and other projects, and was responsible for the development, construction and management of the community. It is estimated that the total investment of the heating project is 100 million yuan. Since the project is an urban infrastructure and public welfare construction project, the construction investment is large, the payback period is long, the rate of return is low, and it is in a state of low-load loss operation for a long time after completion, so the municipal government is requested to give care and support in all aspects: 1. Preferential transfer of a piece of planning land in this area to develop and build commercial housing, to support heat with housing, and to compensate for returns; 2. Exemption of all taxes and fees in the process of construction and operation; 3. Help solve part of the interest-free loans; Fourth, formulate a set of preferential policies for central heating and property management. Yang Xin, the mayor at the time, and Li Yongku, the deputy mayor in charge, gave instructions to support them.
On January 22, 1999, the office meeting of the municipal government discussed how to implement the preferential policies for the disputed projects and formed the minutes of the office meeting, including the minutes of the meeting on the policy adjustment of five key investment promotion and development construction projects, and the preferential policies of the Daqing Municipal People's Government on the development and construction of the boiler room of Dongfeng New Village (Annex II of the minutes of the office meeting of the municipal government on January 22, 1999). The main contents of the minutes include:
1. Principles for formulating preferential policies. 1. Change the previous policy of government investment in urban central heating, change the government's direct investment to give policy exemption and exemption in levy, and give 80% of the total investment in boiler room construction. 2. The boiler room area covers an area of 9.2 hectares, and no land transfer fee is charged. 3. In order to balance the preferential policies, the existing building of 840,000 square meters can be directly connected to the network, and no network fees will be collected; Buildings put into use after 1999 will be charged a heating network fee, and the standard is: 70 yuan per square meter according to the construction area. 4. Unified planning and supporting construction, planning for a garden-style central heating heat source plant. 5. The community that matches the development and construction of policies should be planned from a high starting point, built from a high starting point, promoted at a high speed, and managed with high efficiency. 6. The boiler room is operated and managed by the developer itself, and implements the city's unified property management and levy standards.
2. The construction scale of the boiler room is 5 40-ton hot water heating boilers, 2 35-ton steam furnaces, and a heating capacity of 1.5 million square meters.
3. The total investment in the construction of the boiler room is 136.4 million yuan, plus the 3.6 million yuan incurred in the boiler room originally planned by the government, a total of 140 million yuan, which is borne by the developer, and the government gives the developer a preferential levy reduction of 112.72 million yuan. If the preferential amount exceeds 112.72 million yuan, the developer shall construct the municipal project of the same amount for the municipal government for the multi-preferential part; If the developer's reduction amount does not reach 112.72 million yuan, the difference will be settled by the municipal government.
4. Preferential policy plan: 1. Use resource development and asset replacement to grant 7.02 hectares of land around the boiler room plant to the developer for real estate development, and exempt from relevant fees. The total construction area is 92,040 square meters, of which: 7,800 square meters of boiler room workshop, the developer uses the comprehensive development benefits of 7.02 hectares of land other than the boiler room factory area to invest in the construction of boiler room, and the plot ratio is controlled according to 1.2, which can build 75,000 square meters of residential buildings, 8,000 square meters of commercial services, and 1,240 square meters of public buildings. According to the levy project of Daqing construction project and the authority to reduce and reduce levy, 20 fees in the process of boiler room and its real estate development and construction are exempted, which are aimed at the issue of transfer fee, the minutes state: state-owned land use right transfer fee: 300 yuan per square meter for real estate development; The construction of boiler room is a public welfare undertaking, and land is allocated. The total of 20 items is 67.1707 million yuan, and the preferential amount given to the developer is 112.72 million yuan, and the difference is 45.5493 million yuan, which is solved by charging heating network fees.
2. Policy of charging access fees. First, the design heating capacity of this boiler room is 1.5 million square meters, and the 840,000 square meters of buildings in Fuming Community, Liming Community and Business Zone put into use before the end of 1998 are directly connected to the network, and no network access fee is charged. Second, the 660,000 square meters of buildings put into use after 1999 will be charged a heating network fee, and the standard for collecting the network access fee will be determined at 70 yuan per square meter according to the construction area, and the income network fee will be 46.5 million yuan in installments. The total amount of preferential policies plus heating network fees is 113.6707 million yuan, minus the 112.72 million yuan that should be preferential, and the balance is 950,700 yuan, and the developer will build municipal projects of equivalent value for the government.
3. This preferential policy is applicable to real estate developers who develop and construct central heating boiler rooms in Dongfeng New Village.
4. This preferential policy shall be implemented on August 1, 1998.
On August 30, 1998, Zhenfu Company commenced construction, and on October 15, 1999, the disputed project was completed and put into use. In the process of implementing the preferential policies, due to the introduction of relevant government policies and the cancellation of some charging items, the municipal government needs to recalculate and adjust the original replacement project policy, and the relevant departments of the municipal government will calculate the amount of the settlement payment for the completion of the disputed project.
On May 15, 2001, the Daqing Municipal Audit Bureau reported to the municipal government in writing the audit of the disputed project with the title of "Report of the Daqing Municipal Audit Bureau on the Audit of the Final Accounts of the Daqing Zhenfu Boiler Room Project". According to the report, the audit determined that the final accounts of the completion were 157,067,737.15 yuan, of which the investment in construction and installation projects was 92,788,351.30 yuan, the equipment investment was 52,250,685.25 yuan, and the investment to be amortized was 12,028,700.60 yuan. According to the minutes of the office meeting of the municipal government on January 22, 1999, the total investment of the boiler room project was expected to be 136.4 million yuan, and the municipal government exempted the developer from administrative fees according to 80%, with a preferential amount of 109.12 million yuan, plus the preliminary cost of the Dongfeng New Village heat source project in 1998 was 3.6083 million yuan, and the total preferential amount was 112.7283 million yuan. Due to the final account of the completion of the boiler room after the approval is 157.0677 million yuan, exceeding the original reservation investment of 20.6677 million yuan, it is more than the original preferential amount of 112.7283 million yuan more than 20.6677 million yuan, plus the investment of 2 million yuan in the continuation of the Weier Road project in 1999, Zhenfu Company should enjoy a total of more than 22.6677 million yuan of preferential policies, considering that the Zhenfu boiler room project has been completed and put into use for more than a year, it is recommended that the municipal government introduce relevant policies as soon as possible to solve the adverse impact of the funding gap。
On August 9, 2002, the Daqing Municipal Planning Commission, the Daqing Municipal Construction Bureau, and the Development Office of the Daqing Municipal People's Government recorded in the "Report on the Development and Construction of Zhenfu Boiler Room and Zhenfu Community by Zhenfu Group" (draft) that the reasons for re-accounting were: 1. When the Zhenfu boiler room was built in 1998, the estimated project budget was 136.4 million yuan. In the process of construction, according to the actual needs of the increase in the number of heat exchange stations and the amount of the primary network engineering, after auditing, the final account of the boiler room is 157.06 million yuan, exceeding the estimated budget of 20.66 million yuan, according to 80% of the calculation should increase the preferential policy amount of 16.53 million yuan. 2. On January 22, 1999, the municipal government office meeting studied and determined the preferential policies, including 20 exemptions and exemptions, and the state canceled 8 fees in the implementation, totaling 16.4469 million yuan. Third, the heating network fee was not collected in time. Only 10.87 million yuan was collected in place, and 35.65 million yuan was still in place. The policy basis for accounting: 1. Preferential 80% of the total investment in the construction of the boiler room. 2. The boiler room area covers an area of 9.2 hectares and no land transfer fee is charged. In accordance with the principle of "housing for heating, compensation for returns", the 9.2 hectares of above-ground buildings are not subject to various fees. 3. Use the resource development and asset replacement policies to grant 7.02 hectares (actually 7.97 hectares) of land around the boiler room plant to the developer for real estate development, and exempt the relevant fees (the amount of fee reduction and exemption is used to offset the investment in the boiler room as a preferential policy). Fourth, in order to balance the preferential policies, the 840,000 square meters of buildings put into use before 1998 in Fuming Community, Liming Community and Business Zone are directly connected to the network, and no network access fee will be charged; After 1999, the building of Zhenfu boiler room connected to the grid was charged a heating network fee, and the standard was 70 yuan per square meter according to the construction area (at that time, it was approved that the income network fee could be levied in installments of 46.5 million yuan). The actual investment in the boiler room and the policy in place: the investment in the boiler room, after auditing, the final account of the completion of the boiler room is 157.06 million yuan. In addition, Zhenfu Company paid 3.6 million yuan in the early stage of Wanbao heat source in 1998, and invested 2 million yuan in the section from Weier Road to the development zone, with a total investment of 162.66 million yuan. The actual situation of the government's preferential policies in place: according to the principle that the land area occupied by the boiler room and its buildings does not charge land transfer fees and various fees, and the land transfer fees and various fees for the land occupied by the community and its buildings are taken as policies (the fees that have been canceled by the state are not included), the policy amount in place is 64.9147 million yuan (including 10.87 million yuan of heating network fees that have been received). The actual government preferential projects in place include: land transfer fee, land management fee, land appraisal fee, cadastral survey fee, urban infrastructure supporting fee, wall renovation fee, teacher's residential retention fee, labor quota determination fee, labor insurance overall fee, cost management fee, bidding management fee, quality supervision fee, the above 12 fees totaling 54.0447 million yuan, the insufficient part of the fee amount, the method of charging heating network fees. At present, 10.87 million yuan of heating network fees have been collected and returned to Zhenfu Company. Verification result: The municipal government owes Zhenfu Company 77.9986 million yuan, of which 66.3333 million yuan and 11.6653 million yuan of interest are not in place.
On March 26, 2002, Li Yongku, vice mayor of the municipal government, listened to the report on the development of Zhenfu boiler room and Zhenfu community by Zhenfu Company, and the result of the examination and approval of the disputed project was: the municipal government owed Zhenfu Company a total of 77.0954 million yuan (66.3333 million yuan and 10.7621 million yuan in interest). In 2003, the municipal government's report on the accounting and compensation of several policy replacement projects recorded that the municipal government owed Zhenfu a total of 79.3534 million yuan (66.3333 million yuan and 13.0201 million yuan in interest). In August 2003, Wang Yuchao, assistant to the mayor of the municipal government, formed a report on the development of Zhenfu boiler room and Zhenfu community by Zhenfu Company, and the results were as follows: the municipal government owes Zhenfu Company 72.3596 million yuan (61.5206 million yuan and 10.839 million yuan interest).
The above five audits, the municipal government to the Daqing Municipal Audit Bureau to determine the Zhenfu company to build a boiler room project total investment of 157.06 million yuan as the base, by different departments for audit, five audit results admit that the highest amount owed to Zhenfu Company is 79.3534 million yuan, the lowest amount is 72.3596 million yuan. After accounting, the two parties have no objection to the total investment of 157.06 million yuan in the Zhenfu boiler room project, plus the pre-payment of 3.6 million yuan for Wanbao heat source in 1998 by Zhenfu Company, the investment of 2 million yuan in the development section of Weier Road, and the municipal government's 10.87 million yuan network access fee to offset the preferential policy amount that the municipal government should bear.
On February 27, 2004, the municipal government's "Minutes of the Special Office Meeting" recorded: the municipal government departments further verify whether the government receivables are exempted from the project is accurate, whether the accounting of each item is accurate, whether there are any missing items, and after the accounting approval of each item, the person in charge of each department signs and seals for the record, and if there are missing items, the departments shall levy it on Zhenfu Company. According to the results of the accounting, it was agreed that the municipal government would repay Zhenfu Company with 39.3583 million yuan.
The court of first instance also ascertained that on March 15, 2004, the Daqing State-owned Assets Management Company repaid 39,358,300 yuan of investment funds from Zhenfu Company on behalf of the municipal government.
The court of first instance also ascertained that on April 27, 1998, Zhenfu Company submitted a request for instructions on the construction of the Xincun central heating system project. On December 2, 1998, the Management Committee of Daqing High-tech Industrial Development Zone (hereinafter referred to as the Management Committee of the Development Zone) issued the Notice of the Management Committee of Daqing High-tech Industrial Development Zone on Issuing the Capital Construction Plan for the Development and Construction of the Tenth Residential Area of Zhenfu Housing, which recorded that it was agreed that Zhenfu Company would develop and construct the Tenth Residential Community Project within the planning land scope covering an area of 16.2 hectares (including the land for the No. 3 boiler room) on the east side of the ninth residential area of Xincun.
On February 3, 1998, Zhenfu Company obtained the "Construction Land Planning Permit" for 16.07 hectares of land. On December 9, 1998, Zhenfu Company obtained the "State-owned Land Use Certificate" of 41,125 square meters for No. 9001 East Plot No. 9001, 41,125 square meters for No. 9002, 39,685 square meters for No. 9003 plot and 38,765 square meters for No. 9004 plot 9004. On 15 April 1999, Zhenfu Company obtained a Land Use Permit for the land in dispute. On September 27, 1999, the municipal government signed a contract with Zhenfu Company for the transfer of land use rights for the boiler room. On 1 January 2002, Zhenfu Company also obtained the Housing Ownership Certificate of the disputed house. According to the property rights information query report of Daqing Housing Property Rights Market Management Center, 10,733 square meters of boiler room and 4,535.06 square meters of coal storage in Zhenfu Community, Dongfeng New Village, are owned by Daqing Zhenfu Heating Co., Ltd. (hereinafter referred to as Zhenfu Heating Company).
Zhenfu Company was established on November 17, 1997 with a registered capital of 50 million yuan, and the enterprise type is a limited liability company funded by natural persons, and it is a real estate development enterprise with first-class qualification. In June 1999, Zhenfu Company initiated the establishment of Zhenfu Heating Company for the operation of Zhenfu boiler room project, the legal representative is Zhang Junchen, the registered capital is 195.5 million yuan, and the business scope is heat source operation.
Due to the change of the main leaders of the municipal government, the municipal government stopped paying Zhenfu Company the offset money that the preferential policies were not in place. On April 16, 2004, Zhenfu Company filed a lawsuit with the court of first instance, requesting that the municipal government should pay the arrears of 35.63 million yuan and interest of 16.1813 million yuan in accordance with the relevant meeting minutes, totaling 51.2795 million yuan. In 2004, Zhenfu Company believed that the urban infrastructure supporting fee had been cancelled and that the municipal government should not deduct the fee, so it requested the municipal government to pay an additional 24,206,500 yuan. On June 17, 2004, the municipal government built the Zhenfu boiler room for Zhenfu Heating Company, and the property rights also belonged to it, and the Zhenfu boiler room project had nothing to do with Zhenfu Company, and Zhenfu Company had no right to claim rights in this regard, so it filed a counterclaim and requested Zhenfu Company to return the investment of 131.248 million yuan.
The court of first instance determined that the focus of the dispute in this case was:
First, whether the 9.2-hectare land in the boiler room area will be subject to land transfer fees and various fees. Second, whether the municipal government owes Zhenfu Company money and the basis for the arrears. Third, whether the municipal government should deduct 24.2065 million yuan of urban infrastructure supporting fees from the total investment of Zhenfu Company. Fourth, whether the municipal government's counterclaim that Zhenfu Company should return the municipal government's preferential policy of 131.248 million yuan has a factual and legal basis, and whether it should be supported.
First, whether the 9.2-hectare land in the boiler room area will be subject to land transfer fees and various fees. The court of first instance held that on January 22, 1999, the municipal government issued annex (2) to the minutes of the meeting, "Preferential Policies of the Daqing Municipal People's Government on the Development and Construction of the Boiler Room in Dongfeng New Village", which recorded that the boiler room area covered an area of 9.2 hectares and no land transfer fee was charged. Exemption of 20 expenses in the development and construction of boiler rooms and their real estate. On February 27, 2000, the minutes of the 8th mayor's office meeting of the municipal government decided that the 9.2 hectares of land in the boiler room area should be implemented in accordance with the original meeting minutes, that is, no land transfer fee will be charged. None of the five drafts of the municipal government's accounting reports on 25 January, 26 March, 9 August 2002, 7 April and August 2003 proposed to collect land transfer fees for buildings in the 9.2-hectare area. According to Article 54 (2) of the Land Management Law of the People's Republic of China, which stipulates that land for urban infrastructure and land for public welfare undertakings can be obtained by way of allocation, the boiler room project developed and constructed by Zhenfu Company is not only an urban infrastructure, but also has the nature of public welfare, and the acquisition of land through allocation does not violate the law. Therefore, for the boiler room area covering an area of 9.2 hectares, the municipality should not charge a land transfer fee. According to the "Vertical Diagram of Daqing Zhenfu Boiler Room" and "Location Map of Daqing Zhenfu Boiler Room" approved by the municipal government on January 7, 1999, the buildings covering the boiler room were designed in an area of 9.2 hectares. On February 11, 1999, when the municipal government issued the preferential policy document, it was clearly stated in the attached table that only the land transfer fee and various fees for 83,000 square meters of buildings in the 7.02-hectare area would be charged, and part of the preferential policy quota would be offset by this. On January 25, 2002, the Daqing Municipal Planning Commission "Report on the Development and Construction of Zhenfu Boiler Room and Zhenfu Community" of Zhenfu Group stated that after many times of communication and docking with Zhenfu Company, it is basically agreed that the boiler room area covers an area of 9.2 hectares, and no land transfer fee will be charged, and various fees will not be charged for buildings. Yang Xin, the former mayor of the city, and Yu Changchun, the current deputy secretary-general of the municipal government in charge of urban construction, both confirmed that the buildings in the 9.2-hectare area are supporting projects for the boiler room, and the municipal government should not charge land transfer fees and various fees.
Second, whether the municipal government owes Zhenfu Company money and the basis for the arrears. Although the municipal government admitted that it owed Zhenfu Company money in the five accounting report drafts, the amount of arrears determined by the five materials varied, with the highest amount being 79.3534 million yuan and the lowest amount being 72.3596 million yuan. However, the basis for determining the rights and obligations of the two parties is the "Meeting Minutes" and the "Annex (II) to the Meeting Minutes" made by the municipal government on January 22, 1999, and the meeting minutes do not have an agreement that the municipal government will pay cash if the policy is not in place, so the "arrears" mentioned in the above five materials should be understood as the amount of preferential amounts owed by the municipal government. According to the audit report made by the Daqing Municipal Audit Bureau, it was confirmed that the total investment of Zhenfu boiler room project was 157.0677 million yuan, and the preferential amount given by the municipal government to Zhenfu Company was 125.648 million yuan. Therefore, the court of first instance did not support Zhenfu Company's request for the municipal government to pay the investment funds for the boiler room project and the interest on the delayed payment of network access fees.
Third, whether the municipal government should deduct 24.2065 million yuan of urban infrastructure supporting fees from the total investment of Zhenfu Company. On December 19, 1997, the municipal government issued Qing Zheng Fa No. 199744 "Notice on Reducing the Burden on Enterprises and Abolishing Unreasonable Fees, Fines, Fund-raising, Fund Projects and Various Assessments (Second Batch)", canceling four unreasonable fees, including urban infrastructure supporting fees. On January 22, 1999, the municipal government issued the meeting minutes annex (II) "Daqing Municipal People's Government on the development and construction of Dongfeng New Village boiler room preferential policies", the minutes of the meeting decided to exempt the boiler room and its real estate development and construction process 20 items, which still include urban infrastructure supporting fees. On January 25, 2002, the Daqing Municipal Planning Commission "Report on the Development and Construction of Zhenfu Boiler Room and Zhenfu Community" of Zhenfu Group stated that after many times of communication and docking with Zhenfu Company, it is basically agreed that the boiler room area covers an area of 9.2 hectares, and no land transfer fee is charged, and various fees are not charged for buildings, including urban infrastructure supporting fees. Because the preferential policies given by the municipal government to Zhenfu Company included the urban infrastructure supporting fees, and Zhenfu Company promised to undertake the performance of the boiler room, and admitted that the urban infrastructure supporting fees were preferential policy items in the evidence presented by Zhenfu Company and in the trial, the court of first instance did not support Zhenfu Company's claim that the municipal government should return the deduction of 24.2065 million yuan of urban infrastructure supporting fees.
Fourth, whether the municipal government's counterclaim that Zhenfu Company should return 131.248 million yuan of preferential policies to the municipal government has a factual and legal basis and whether it should be supported. The municipal government claimed that Zhenfu Company violated the contract and did not put the preferential policies and cash paid by the municipal government into the boiler room project, and the boiler room was built by Zhenfu Heating Company, and the property rights were owned by Zhenfu Heating Company, so Zhenfu Company should return the preferential policy of 131.248 million yuan. After cross-examination at the first-instance trial, the municipal government had no objection to the "Instructions on Investing in the Construction of the New Village Central Heating System Project" presented by Zhenfu Company and the (1998) No. 28 document "Notice on Issuing the Capital Construction Plan for the Tenth Residential Area of Zhenfu Housing Development" issued by the Management Committee of the Development Zone. The most important material in the property rights file of Zhenfu Heating Company is the notice of the "Capital Construction Plan for the Development and Construction of the Tenth Residential Area of Zhenfu Housing", which is the basis for the property rights management authority to issue the property right certificate for Zhenfu Heating Company, and the notified person of the notice is Zhenfu Company. Although Zhenfu Heating Company obtained the property rights of the boiler room house, it could not prove that Zhenfu Heating Company was the developer of the boiler room project. The person who has obtained the land use right to carry out the project construction with the approval of the state is the project developer, that is, Zhenfu Company. Zhenfu Company is the developer of the boiler room project. The preferential policy provided by the municipal government is to give the treatment to the project developer, and the developer and builder can enjoy the preferential policy of exempting part of the fees, but there is no obligation to return the preferential treatment amount of the municipal government if they do not enjoy the preferential policy. Therefore, the municipal government's request for Zhenfu Company to return the preferential policy of 131.248 million yuan has no factual and legal basis, and the municipal government's request is not supported.
Accordingly, the court of first instance ruled that:
1. The litigation claims of Zhenfu Company are dismissed. 2. The counterclaim of the municipal government is rejected. The first-instance case acceptance fee of 387,440 yuan is borne by Zhenfu Company, and the counterclaim fee of 666,250 yuan is borne by the municipal government.
Dissatisfied with the first-instance judgment, Zhenfu Company appealed to this court, requesting:
The first item of the main text of the first-instance judgment was revoked, and the municipal government was ordered to pay 59,836,500 yuan for the project investment that it should bear, and the interest should be paid at the agreed interest rate from the date of arrears to the date of payment of arrears. The main grounds of appeal are as follows: the first-instance judgment found that the municipal government should compensate 80% of the funds invested by Zhenfu Company, and the compensation method was to exempt all fees, and the insufficient part was made up with the network access fees collected, and the municipal government failed to fully perform its contractual obligations as agreed. The municipal government and Zhenfu Company have established a contractual relationship for compensation for the investment and construction of heat source projects, and there is no basis for the view that the preferential policy amount is converted into creditor's rights. The appellant's appeal should be upheld because the municipal government's offer to waive 20 fees included the city's infrastructure fee, which the municipality had committed to with its performance. The appellant also argued that the preferential policy plan clearly stated that the developer should build a municipal project of equivalent value for the government for the part of the preferential policy amount exceeding 80%. 20 fees are exempted to offset 80% of the investment amount, and the insufficient part is solved by charging network access fees. The foregoing content is that the parties have made separate agreements in terms of the offset of various fees, excess and shortfall. If the fees exceed the preferential amount, the developer will continue to fund the construction of infrastructure projects of equivalent value for the government. The essence of this agreement is that the municipal government will convert the part of the exemption of more than 80% of the total investment into the obligations of Zhenfu Company to perform in cash, and if the fees are insufficient, the municipal government will make up for it with the network access fee collected, and the network access fee is also paid in cash. In accordance with the contract and the actual performance, Zhenfu Company has the right to request the municipal government to pay part of the investment funds that should be borne by it but has not yet been paid. In the settlement process, the eight fees that were expressly cancelled in the five accounting drafts have been deducted from the original offset items, which is sufficient to prove that the two parties have made changes to the original agreement in the settlement process, and the supporting fees should be deducted from the offset items. The original judgment was also procedurally flawed. It is mainly reflected in the fact that the first-instance judgment affirmed the establishment of the contractual relationship, and the adjudication conclusion was reached by simply applying the substantive law to reject the litigation claim of Zhenfu Company, and the reasons for the rejection were not clarified, which violated the fundamental principles of the civil procedure system. The judge's interpretation of the content of the contract on behalf of one party in the adjudication document violates the autonomy of the parties embodied in the contract, and its essence is to interfere with private rights with public power, which violates the judicial principle that judges are not allowed to defend on behalf of one party. The original judgment went beyond the litigation claims of the parties and deviated from the principle that the judge may not refuse the judgment and ignore the judgment. The first-instance judgment rejecting the plaintiff's claim was a pre-trial judgment, and the court of first instance threatened to reject the plaintiff's claim shortly after the parties filed the lawsuit. The trial time of the first instance lasted for nearly two years, seriously exceeding the trial time limit. Accordingly, the court of second instance was requested to revoke the judgment of first instance and support the appellant's appeal request.
The municipality replied that:
According to the amount of 80% of the total investment in the boiler room, the municipal government should give Zhenfu Company preferential policies, and the quota has been fully in place. The municipal government does not owe Zhenfu Company preferential policies, nor does it owe project investment. The court of second instance was requested to reject Zhenfu Company's appeal request in accordance with the law. The reason is: the minutes of the office meeting of the municipal government on January 22, 1999 (2) "Daqing Municipal People's Government on the development and construction of Dongfeng New Village boiler room preferential policies" is a document jointly recognized by both parties to confirm the rights and obligations of both parties. Confirmation of whether the 9.2 hectares of land in the boiler room area and its above-ground buildings should be charged should be based on this. According to the minutes of the office meeting (2), the construction of the boiler room belongs to the public welfare, and the land is allocated and the land transfer fee is not charged, indicating that the 9.2 hectares of land in the boiler room area are only allowed to build the boiler room, and other buildings are not allowed to be built. However, Zhenfu Company violated the regulations, first changed the state-owned allocated land to commercial transfer land, and then added more than 70,000 square meters of commercial buildings, and Zhenfu Company should collect land transfer fees for more than 70,000 square meters of commercial buildings built on 9.2 hectares of public welfare land in accordance with the law. The land for public welfare itself does not charge land transfer fees, but the above-ground buildings shall pay construction fees, and commercial housing projects shall pay construction fees. Zhenfu Company's claim that the municipal infrastructure supporting fee should be deducted from the preferential policy has no legal basis. Although the municipal government issued a document in 1997 to cancel the municipal infrastructure supporting fees, it was soon reinstated. At present, all construction projects are charged this fee, and Zhenfu Company should not be an exception.
According to the agreement, the municipal government has cashed out the preferential policies in accordance with 80% of the total investment in the Zhenfu boiler room, and there is no arrears. The Daqing Municipal Bureau of Land and Resources confirmed that the amount of the four fees that Zhenfu Company should be exempted from paying was 38.3155 million yuan. In addition to the public welfare land, part of the land for commercial housing development of 34,549 square meters shall be charged land transfer fees, and all land shall be charged land management fees, land appraisal fees, cadastral registration survey fees and other fees. The Daqing Municipal Construction Bureau confirmed that the amount of the seven fees exempted was 50.6683 million yuan, including the construction fees of more than 70,000 square meters of commercial housing. There is only one exempt item confirmed by the Daqing Municipal Education Bureau, that is, the teacher's residential retention fund, which is 4.4552 million yuan, which is also charged according to the area of all commercial houses. According to the audit results of the Daqing Municipal Audit Bureau, the total investment of Zhenfu Company is 157.06 million yuan, and the municipal government should give Zhenfu Company a preferential amount of 131.248 million yuan. The preferential amount of policies that have been put in place is a total of 93.439 million yuan for the 12 fees that the above three departments have confirmed that should be exempted, 10.87 million yuan of network access fees have been collected by Zhenfu Company, and 39.3583 million yuan in cash has been paid to Zhenfu Company by the municipal government, with a total of 143.6673 million yuan for the above items, which is 12.4193 million yuan more than the preferential amount that should be given to Zhenfu Company. The municipal government gives Zhenfu company preferential policies according to 80% of the total investment in the boiler room, which is essentially the municipal government's capital contribution in the construction of Zhenfu boiler room, and should correspond to 80% of the property rights, otherwise Zhenfu company should return the fees that should be collected by the municipal government to the municipal government.
It is up to the court to decide whether the contract involved in this case is a civil or administrative contract. Regardless of the nature of the contract, the municipal government has performed the contract in accordance with the contract, and there is no breach of contract, on the contrary, Zhenfu Company did not build a garden-style heat source plant in accordance with the contract, which has constituted a breach of contract. The contents of the five accounting drafts have not yet been determined, which is contrary to the preferential policies determined by the municipal government, and does not have the form of evidence and cannot be used as evidence. Accordingly, the court of second instance was requested to reject the appeal and uphold the original judgment.
The facts ascertained by this court are basically the same as those ascertained by the court of first instance.
In the course of the trial, the collegial panel went to the local area to preside over the mediation between the two parties, trying to resolve the conflict and settle the dispute, but the mediation failed due to the refusal of the municipal government.
The Court is of the view that,
First, the parties in this case are not equal in the formulation and performance of preferential policies, and do not belong to equal subjects in the sense of civil law. In this case, Zhenfu Company responded to the call of "the Third Plenary Committee (Enlarged Meeting) of the Fifth Daqing Municipal Party Committee to put forward the construction of urban infrastructure, environmental construction and investment promotion as the focus of future work", and intervened in the construction of the heating project in the form of a written request for instructions to the municipal government and the approval of the main leaders of the municipal government. Subsequently, the municipal government unilaterally convened a municipal government office meeting without notifying Zhenfu Company to participate in the case, and decided that Zhenfu Company would undertake the disputed project and formulated a detailed list of preferential policies in the minutes of the municipal government office meeting (2), and after Zhenfu Company accepted the decision of the government office meeting, its duties were to perform in accordance with the rights and obligations determined by the government administrative documents, and there was no room for equal consultation with the municipal government to revise the municipal government's preferential policy documents. After the completion of the disputed heating project, whether the insufficient use of the municipal government's preferential policies can be offset by cash is also unilaterally decided by the municipal government, and is unilaterally reviewed and determined by the administrative management units of the government's auditing, planning, construction, and development in accordance with the administrative order of the municipal government leaders. The determination of the preferential policies for the disputed heating construction project, the form of Zhenfu Company's intervention, and the determination of the settlement of the disputed project were all unilaterally decided by the municipal government. Although there was no leadership or subordination relationship between the parties in the disputed construction project in this case, the facts of the above case show that the municipal government has a dominant and dominant position in formulating and implementing preferential policies. Although Zhenfu Company has the right to decide whether to undertake the construction of the disputed project, as well as the right to make suggestions on how to understand and implement the preferential policies, on the whole, Zhenfu Company occupies a secondary and subordinate position in terms of the method of intervention, the formulation of preferential policies and how to perform the preferential policies, and the two parties have not yet formed a civil relationship between equal subjects in the sense of civil law.
Second, there was no civil contractual relationship between the parties in this case. Article 2 of the Contract Law of the People's Republic of China stipulates that the contract referred to in this Law is an agreement between natural persons, legal persons and other organizations that are equal subjects to establish, modify or terminate civil rights and obligations. A contract is a civil juristic act in which two or more parties express the same intent on the basis of equality and voluntariness, and is an agreement for the purpose of establishing, modifying or terminating a civil legal relationship. The minutes of the office meeting (2) formulated by the municipal government clarified the principle of preferential policies and preferential policy plans, which were the main basis for the implementation of the heating construction project in dispute in this case, but the preferential policy was unilaterally formulated by the municipal government, and Zhenfu Company was not invited to participate in the office meeting of the municipal government and negotiated with it on an equal footing, nor did it obtain the consent of Zhenfu Company. Therefore, the minutes of the municipal government office meeting and other relevant documents are not civil contracts signed by the two parties through negotiation on an equal footing.
To sum up, although there are many civil factors in the legal relationship between the parties in this case, because the parties have not yet formed an equal subject relationship as required by the civil law, the minutes and documents of the municipal government office meeting on the relevant content of preferential policies are not civil contracts signed by the two parties through equal consultation, so this case does not fall within the scope of civil cases accepted by the people's court. This dispute is the previous leaders of the municipal government in the fulfillment of the Zhenfu boiler room preferential policy quota and the relevant litigation project left unresolved matters, should be continued by the leaders of the current government of Daqing City. The trial court's acceptance of this as a civil dispute and its substantive judgment were improper and should be corrected. Accordingly, in accordance with the provisions of Article 108 (4) and Article 140 (1) (3) of the Civil Procedure Law of the People's Republic of China, and Article 186 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China, it is ruled as follows:
1. Revoke the Heilongjiang Provincial High People's Court's (2004) Hei Min Yi Chu Zi No. 5 Civil Judgment;
2. The lawsuit filed by Daqing Zhenfu Real Estate Development Co., Ltd. and the counterclaim of the Daqing Municipal People's Government are rejected.
The first and second instance case acceptance fees totaled 100 yuan, and Daqing Zhenfu Real Estate Development Co., Ltd. and Daqing Municipal People's Government each bear 50 yuan.
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