On December 30, 2009, Hong Mou and Zhongdu Industrial Company signed a loan agreement, stipulating that Hong Mou would lend 5 million yuan to Zhongdu Industrial Company, which was paid to Zhongdu Industrial Company by a third party on behalf of Hong Mou on the same day. On November 9, 2014, Zhongdu Tourism Company and Hong Mou signed the "Commercial Housing Sales Contract" and "Contract Supplementary Agreement", stipulating that Hong Mou would purchase a villa in the real estate project developed by Zhongdu Company for a price of 5 million yuan, and completed the online signing and filing. On September 18, 2016, the Sanya Intermediate People's Court ruled to accept Zhongdu Tourism Company's application for bankruptcy reorganization. As of the date of acceptance of bankruptcy, the house involved in the contract had not been delivered or registered for property rights transfer. Later, Hong Mou requested Zhongdu Tourism Company to perform the commercial housing sales contract, but Zhongdu Tourism Company wanted to terminate the contract, and the two parties had a dispute, which led to a lawsuit in court.

First, regarding the issue of determining whether the contract in question is established. According to the statements of both parties on the facts during the first and second instance stages, the parties did not dispute the establishment and validity of the contract, and only had differences on the issue of contract termination, which is sufficient to show that Zhongdu Tourism Company and Hong Mou signed the "Commercial Housing Sales Contract", and the two parties established a commercial housing sales contract relationship. Second, regarding the issue of whether Hong Mou paid the house price. When the loan relationship was established, Zhongdu Industrial Company was the sole shareholder of Zhongdu Tourism Company, and then Zhongdu Industrial Company remitted the loan to Zhongdu Tourism Company; when the house sales contract was signed, Zhongdu Industrial Company still held 51% of the shares of Zhongdu Tourism Company. According to the evidence provided by both parties, combined with relevant facts, it can be determined that the funds in question have been converted from loans to house purchase funds. Third, regarding the issue of whether the house sales contract in this case should continue to be performed. The administrator's right to terminate the contract stipulated in Article 18 of the Bankruptcy Law only applies to situations where both parties have not fully performed their debts. In this case, Hong Mou has paid the house purchase price to Zhongdu Industrial Company, and there is no situation where Hong Mou has other obligations that have not been performed. The original judgment that the administrator of Zhongdu Tourism Company has the right to terminate the contract is an incorrect application of the law and should be corrected. According to Zhongdu Tourism Company's statement, in the Zhongdu Tourism Company's reorganization case, commercial housing sales contracts that are genuine and valid and for which the purchasers have actually paid the house price have been performed. Hong Mou, as a creditor of Zhongdu Tourism Company, has the right to request repayment according to similar claims, and his claim to continue performing the "Commercial Housing Sales Contract" in question should be supported.

In reorganization cases, whether debt-for-property agreements that cannot be legally terminated can continue to be performed is related to issues such as maximizing the debtor's assets, the administrator's performance of duties, and the fair repayment of creditors. From the administrator's perspective, the continued performance of debt-for-property agreements directly affects the debtor's assets, which may lead to changes in the reorganization plan and repayment plan. Therefore, in practice, for debt-for-property agreements that do not meet the conditions for statutory termination and do not constitute individual repayment, the administrator can adopt the idea of ​​agreement termination, and deal with related issues through negotiation, negotiation, and other methods with creditors who use debt-for-property, so as to promote the smooth progress of the reorganization procedure. From the perspective of creditors, the available benefits of performing the debt-for-property agreement are obviously higher than terminating the contract. Therefore, how to ensure that the signed agreement is legal and effective, does not constitute individual repayment, and has no grounds for termination has become a key issue to consider when signing the contract.

It should be pointed out that the issue of the performance of debt-for-property agreements in bankruptcy proceedings cannot be generalized, and the principle of analyzing specific issues should be adhered to. In this case, the Supreme People's Court's judgment mentioned the issue of the due rights of genuine home buyers. On the premise of not constituting individual repayment, if the creditor of debt-for-property meets the identification conditions of a genuine home buyer or even a consumer home buyer, and the creditor requests to continue performing the contract, the administrator shall continue to perform.

(2020) Zui Gao Fa Min Zai No. 287 Hong Mou v. Hainan Zhongdu Tourism Industry Development Co., Ltd. Housing Sales Contract Dispute Retrial Civil Judgment