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

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

When the old lawyer was thinking about countermeasures, the little lawyer next to him misunderstood what the old lawyer meant, and said: "At that time, the developer told us that the owners parked indiscriminately, and most of the parking spaces were used by the developers themselves. ”

As soon as the little lawyer spoke, the old lawyer chuckled in his heart, glared at her fiercely, and blamed her for being too talkative. But the words have been spoken, and they cannot be taken back, so the old lawyer can only think of other strategies.

Article 36 of the Commercial Bank Law of the People's Republic of China provides,...... Commercial banks shall conduct a strict examination of the guarantor's ability to repay, the ownership and value of the collateral and pledge, and the feasibility of realizing the mortgage or pledge.

Article 27 of the General Principles of Lending stipulates that after accepting the borrower's application, the lender shall investigate the borrower's credit rating and the legality, safety and profitability of the loan, verify the collateral, pledge and guarantor, and determine the risk degree of the loan.

The above-mentioned laws and regulations clearly stipulate that banks have the obligation to conduct prudent review of the collateral when creating security for external loans.

As a professional financial institution, the appellee's bank clearly knew that the collateral (parking space) might have the rights of others when it was used by someone, but did not conduct further investigation, and only listened to the developer's words and issued the investigation documents. The male judge said.

The old lawyer was unhappy when the judge said it, but so what, he could only endure it, his old face had been practiced invulnerable. But the little lawyer next to him had an unnatural look on his face, and she felt that the judge was targeting them.

"The Appellee argued that when the Appellant purchased the parking space, there was already a prior mortgage on the parking space, that is, the Appellant's purchase of the parking space was a purchase and sale during the existence of the mortgage right.

The Appellant should have known that there was a risk that the ownership could not be transferred, and even if the parking space in question had not been mortgaged to the Appellee at the time of sale, there was a risk that "one parking space would be sold twice" or mortgaged to a third party again.

Therefore, regardless of whether the Appellee conducted further investigation, the Appellant was at fault. The old lawyer used his brains and finally thought of the way to scold the judge, of course, this kind of scolding is in disguise, he didn't dare to speak directly, because people are right, the bank does make mistakes.

"Appellee, you said that the appellant bought and sold parking spaces during the existence of the mortgage, who is the mortgagee?" The male judge asked.

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

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

"I did not represent me in the first instance of this case, and I saw when I reviewed the case file that when the appellant purchased the parking space, there was indeed a mortgage on the parking space, but the mortgage was cancelled after the appellant purchased the parking space. The appellant argued that the cancelled mortgage did not constitute an obstacle to the transfer of ownership of the parking space. Fang Yi said.

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

"Yes, before the Appellee made the mortgage, the mortgage on the previous parking space was cancelled. However, this does not absolve the appellant of fault. The old lawyer held on to this.

"Is the previous mortgagee related to 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 is at fault?" The male judge asked.

The old lawyer was dumbfounded. The little girl beside him felt too aggrieved and wanted to argue, but was stopped by the old lawyer. 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 bank's people, because the previous collateral was all done by their law firm and the bank's people, and if the case was lost because of due diligence issues, I am afraid that it will be difficult for the law firm to cooperate with the bank in the future, and his own business will also be affected.

Fang Yi, who was sitting in the appellant's seat opposite, 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 Beijing that if a judge reprimanded in court or chased one party to ask questions, or even dug down to the ancestral grave, it did not mean that the judge would definitely rule the other party to win.

It may just be that the other party's words angered the judge, or the judge quarreled with his daughter-in-law that morning and wanted to vent, or he just wanted to understand some issues. In short, the judge's heart is like the depth of the sea, and many times it is impossible to guess!

……

"Now for the final submission, the appellant will make the statement." The male judge said.

"The appellant believes that the appellant enjoys civil rights and interests in respect of the parking spaces involved in the case that are sufficient to preclude the people's court's compulsory enforcement, and requests the court to order that the first-instance judgment be revoked, that the judgment be changed in accordance with law, or that the case be remanded for a new trial, for the following reasons:

1. Although the parking space purchased by the appellant is not a residential property, it is a necessary facility to meet the residential needs of the owner. Paragraph 1 of Article 74 of the Property Law of the People's Republic of China stipulates that 'within the building zoning, the parking spaces and garages planned for parking cars shall first meet the needs of the owners'.

The Code for Planning and Design of Urban Residential Areas stipulates that 'parking lots and ......garages for residents' cars (including commuter cars) must be set up in residential areas'

The above-mentioned laws and normative documents clearly stipulate that in the construction stage of urban commercial housing, the construction unit shall design and build parking spaces and garages to meet the needs of the owners, and give the parking spaces a specific purpose.

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

In this case, the appellant was the owner of the community, and the parking space he purchased was a necessary living facility for 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 attributes of residence rights that are specially protected by Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts, and the provisions of Article 29 should be applied.

2. After the Appellant signed the Parking Space Subscription Letter with the developer, the Appellant paid all the money in accordance with the contract, and the developer issued an invoice to the Appellant. ”

(End of chapter)