Hit the "hidden corner" of false lawsuits
False lending and false arbitration are intertwined with "routine loans" and crimes involving gangs... New fields and new types of false litigation have brought new issues for procuratorial supervision. Solving problems, making up for shortcomings, and supervising false litigation have become the focus of strengthening civil procuratorial work.
1. Corporate bankruptcy reveals the true face of the "creditor"
The rule of law is the best business environment. On July 28, the Supreme People's Procuratorate issued the twenty-first batch of guiding cases to provide guidance for judicial protection of the private economy.
"The phenomenon of false litigation in the field of civil and commercial affairs not only severely infringed the legal rights of persons outside the case, undermined social integrity, but also disrupted the normal order of litigation." Zhang Xueqiao, deputy chief prosecutor of the Supreme People’s Procuratorate, attended the press conference and used the Zhejiang Provincial Procuratorate to handle the case. It introduced the prosecutorial organs in various regions to actively perform their civil prosecutorial functions, and investigated and handled a number of false litigation cases involving private enterprises in accordance with the law. In particular, they carried out precise supervision in the field of concentrated false litigation, maintained judicial justice and judicial authority, and contributed to the establishment of a social credit system .
The prosecutor Liu Yuqiang of the Sixth Prosecutors Office of the Supreme People’s Procuratorate told reporters that in the corporate bankruptcy liquidation process, the parties maliciously colluded to defraud the court’s judgment or mediation, and declared bankruptcy claims with false claims identified by the court’s effective documents. This is a typical type of false litigation. It is also the focus of supervision by the procuratorial organ in recent years. The civil protest case of Xu and Hangzhou L Property Co., Ltd. on loan disputes handled by Zhejiang Provincial Procuratorate is a typical case in this field.
Zhejiang Z Group Co., Ltd. (hereinafter referred to as Z company) is one of the first large-scale construction enterprises with special qualifications for national construction general contracting, and has been at the forefront of the construction industry in Zhejiang Province in terms of business operation, quality and safety, and technological innovation.
From 2006 to 2010, Z company successively undertook the first and second phases of a residential district under the name of L company. According to the final accounts, Company L owed Company Z the project price of 43.71541 million yuan. In 2012, L company caused serious losses due to poor management and other reasons, and its company account has no liquid funds available for use. On March 19, 2018, the Xiaoshan District Court of Hangzhou City ruled to accept the bankruptcy liquidation case of Company L.
On May 18, 2018, the bankruptcy administrator, a law firm in Zhejiang, held the first creditors meeting for the bankruptcy liquidation of Company L and confirmed that the principal and interest of the claims of Wang, Xu, and Ma totaled more than 160 million yuan. The principal and interest of company Z’s claims totaled more than 80 million yuan. In July of the same year, Company Z suspected that Wang, Xu, and Ma had false claims, so they reported it to the procuratorial organ and reported to the public security department.
The amount of money involved is huge, there are many people involved, there is a risk of collusion...the difficulty of the case can be imagined. As the case handling unit, the Keqiao District Procuratorate quickly established a joint case handling team with the participation of civil prosecutors, intervened in the case in advance, and guided the public security organs to investigate and collect evidence.
Under the guidance of the procuratorial organs, investigators conduct investigations on the subject identity information of the persons involved in the case. Second, the prosecutor instructs investigators to conduct traceability analysis and judgment on the bank's transaction data from the aspect of borrowing facts. Third, the prosecutors assisted in formulating the trial outline from the perspective of civil litigation supervision, provided trial ideas, clarified the main points of the trial, and facilitated the smooth handling of the case.
The truth surfaced. After investigation, in May 2012, Ruan colluded with relatives Wang, Xu, and Ma, fabricated the fact that the three had a loan relationship with L Company, and forged the "Loan Agreement". At the same time, Ruan ordered the financial staff of L Company Falsify the bank's capital flow through multiple recurring transfers. On August 31, 2012, Ruan ordered Xu to file a civil lawsuit in the court of Keqiao District, Shaoxing City, in his own name and as the agent of Wang and Ma, with forged loan agreements and bank records as the main evidence , Request the court to order L company to return the three people's loan. The court closed the case by mediation, and the mediation agreement stipulated that L Company should return the three-person loan principal amounting to more than 65.1 million yuan and pay corresponding interest.
On August 27, 2019, after the Shaoxing City Procuratorate filed a protest, the Shaoxing City Intermediate Court issued a retrial ruling, revoking the Shaoxing County Court’s civil mediation statement concerning Ruan and Wang, and dismissing the plaintiff’s prosecution. On October 18, 2019, the Keqiao District Procuratorate of Shaoxing City filed a public prosecution against Ruan, Xu and Wang for the crime of false litigation. The case is still in the process of hearing in the court.
The procuratorial organs found out the facts of the false litigation and filed protests in accordance with the law to urge the court to retrial and correct them. At the same time, the procuratorial organs notified the bankruptcy administrator to revoke the determination of false claims, ensure the correct implementation of bankruptcy procedures, and increase the debt repayment rate of Company Z.
2. Malicious collusion, arbitration and mediation have many doubts
"In recent years, the issue of false litigation in the field of arbitration has become more prominent." Liu Yuqiang said.
The reporter learned that compared with civil litigation, civil arbitration activities are unique. At the same time, based on the reliance on the arbitration agreement and the wishes of the parties, coupled with the restriction of a final arbitration, the arbitration treatment of the entity's rights and obligations more prominently emphasizes the value orientation of "efficiency". As a result, the "procedural closure" of arbitration is likely to be used by illegal actors to create false arbitration results, thereby harming the legitimate rights and interests of those outside the case.
How to realize the black-box operation of false arbitration? This is evident in the case of false arbitration and non-litigation enforcement supervision by Dongguan Cai and others.
The outsiders Xu and Zeng respectively enjoyed 5 million yuan and 1.95 million yuan of creditor's rights confirmed by effective legal documents against Cai. In order to avoid the above-mentioned debts, Cai maliciously colluded with Deng, and successively forged the "Confirmation of Creditor's Rights and Debts" and the "Repayment Agreement", confirming that Cai owed Deng 37 million yuan and should pay off the arrears by the end of December 2018.
On July 7, 2017, Deng applied to the Zhanjiang Arbitration Commission of Guangdong Province for arbitration. During the arbitration process, Deng and Cai reached a mediation agreement: Cai should pay Deng an instalment of 37 million yuan and the corresponding interest. If Cai fails to perform the agreement, Deng can apply to the court for enforcement. On July 10, 2017, Zhanjiang Arbitration Commission issued an arbitration mediation statement. Then, Deng applied to the Dongguan Intermediate Court to enforce the arbitration mediation statement. The Dongguan Intermediate Court ordered the Dongguan First Court to execute the arbitration mediation statement. During the enforcement process, the Dongguan First Court also issued a "Declaration Letter" to the Shenzhen Intermediate Court (the enforcement court of Cai’s main property) for the enforcement case, requesting to participate in the court’s handling of the distribution of Cai’s property, and to declare the amount of the debt. It is 43.62 million yuan. After finding out, Xu and Zeng, those outside the case, respectively applied to the Dongguan Intermediate Court not to execute the aforesaid arbitration mediation statement.
In October 2019, Xu refused to accept the "Declaration Letter" issued by the Dongguan First Court, and sued the Dongguan Procuratorate of Cai and Deng for fabricating huge debts and evading enforcement.
Civil prosecutors investigated and verified the case in accordance with the law and discovered four major doubts in the case: First, Deng and Cai unanimously selected Li as the arbitrator during the arbitration process. The second is that Cai and Deng did not have any defenses in the arbitration tribunal, and both parties reached a mediation agreement in only 2 working days. Third, judging from the bank transfer flow submitted by Deng, the amount Cai transferred to Deng far exceeded the repayment amount claimed by Deng, and it was impossible to prove that Cai had not repaid the debt. Fourth, there are traces of close contacts between Deng and Cai.
The undertaking prosecutor promptly notified the enforcement judge of the above abnormal situation. After review, the Dongguan Intermediate Court determined that the arbitration mediation document was obtained by malicious collusion between Deng and Cai in a false arbitration, and ruled not to execute the arbitration mediation statement.
According to the analysis by the prosecutors undertaking, the main manifestations of false arbitration are: the person subject to enforcement transfers property through false arbitration to evade court enforcement; obtains enforcement basis through false arbitration, obtains evidence that does not require verification in litigation, or directly completes the change of ownership. According to the relevant provisions of the Arbitration Law and the Civil Procedure Law, the prevention of false arbitration is mainly concentrated in the court enforcement link. In response, the Dongguan City Procuratorate issued a procuratorial suggestion to the Zhanjiang Arbitration Commission for the problems discovered, and the Zhanjiang Arbitration Commission accepted it.
3. False IOUs, there are "routines" in "routine loans"
In 2019, with the in-depth work of the nationwide anti-gang campaign, "routine loans" gradually entered the public eye and became a key area for law enforcement and judicial departments.
What is the connection between "routine loans" and false litigation? A case handled by the Jintan District Procuratorate of Changzhou City, Jiangsu Province clearly clarified the "routine" of this type of crime to the public-
In October 2015, Li relied on his own financial small loan company, entangled with a number of social idlers, and gradually formed a criminal group headed by Li. On April 12, 2017, without his knowledge, Yu was sued to the court by Li holding an IOU of 40,000 yuan. After Li won the case, he applied to the court for compulsory execution, and Yu and his wife's bank card was frozen. It was later discovered that Li did not destroy the IOU after a certain repayment.
Based on clues provided by the criminal prosecution department, the civil prosecution department of the Jintan District Procuratorate initiated a civil supervision procedure to conduct an investigation, which revealed the tip of the iceberg in the false “routine loan” lawsuit.
"When the borrower and guarantor were unable to repay the principal and interest, Li and others filed a total of 50 civil lawsuits with the court with false IOUs and lease contracts, involving more than 1.4 million yuan. During the debt collection period, when the victim is unable to repay , Will use threats, nuisances and other "soft violence" methods to collect collections from the victim or his relatives, or maliciously increase the debts of the victim and blackmail the victim’s property." Li Li, Director of the Fifth Prosecution Department of the Jintan District Procuratorate, introduced.
"Until the bank card was frozen, I knew that I was in a lawsuit. The mobile phone contact information in the civil complaint is correct, and the residential address is correct, but I have never received or received phone calls and litigation materials from the court." In the case of a private loan dispute between Li and Yu, the prosecutor found that the case-handling officer directly served the defendant Yu by public notice, but the posted notice stated that “cannot be served to you due to other methods ", in the relevant civil judgments, it was stated that the whereabouts of the two defendants are unknown.
On June 21, 2019, the Jintan District Procuratorate filed a protest against the Changzhou City Procuratorate. On July 15, the Changzhou City Procuratorate filed a protest against the case to the Changzhou Intermediate Court. Later, the Changzhou City Intermediate Court ordered the Changzhou Jintan District Court to retrial. On October 11, the Jintan District Court made a retrial ruling, revoking the civil judgment of the original trial and dismissing the plaintiff Li in the original trial. In the remaining 49 cases, the courts have also revoked the original verdict and dismissed the plaintiff's prosecution. As of December 2019, the Jintan District Court of Changzhou City has rectified all enforcement measures in the batch of enforcement cases, including the seizure of cars, restrictions on high consumption, and inclusion in the list of dishonest persons.
Regarding the violation of the law in the notice of service by the accepting officer found in this case, the procuratorial agency called and reviewed other cases handled by the judge at the same time, and found that 10 cases had the same problem, so it issued prosecutorial suggestions for similar cases to the court and recommended the court to correct it.
Liu Yuqiang analyzed that the “routine loan” lender used methods such as inflating the loan amount, forging payment traces, maliciously creating breach of contract, concealing evidence of repayment, etc., and filed a civil lawsuit in the name of private lending in order to illegally occupy the property of others, which not only interferes with the judicial order , Infringe upon the legitimate rights and interests of others, and disrupt the order of financial management.
"In handling cases, criminal and civilian cooperation should be fully strengthened, and investigations should be carried out around the characteristics of'routine loans' creating illusions of private loans, maliciously increasing borrowing amounts, creating false payment facts, and wanton identification of breaches of contract, and supervising by proposing reexamination and inspection recommendations in accordance with the law." Li Li said.
How to solve the trilemma
"False litigation cases have obvious categorization characteristics, and supervision cases are mainly concentrated in private loan disputes, labor contract disputes, housing sales contract disputes and other fields. The litigation process is abnormal, and the external characteristics of the case are obvious, such as the rapid establishment and trial of the case; the trial process lacks confrontation. , The parties’ litigation process is “cooperating and tacit understanding”; most cases are closed through mediation or compulsory execution of false arbitration and notarization applications.” Liu Yuqiang analyzed.
Liu Yuqiang told reporters that there are three main problems in the inspection and supervision of false litigation: First, it is difficult to find. The second is the difficulty of verification. Due to the limitations of investigation and verification methods and capabilities, procuratorial organs have weak links in the verification of false litigation. Third, it is difficult to supervise, mainly because it is difficult to guarantee the effect of supervision in cases of false lawsuits that have been identified.
In order to solve the difficult problem of handling cases and strengthen the shortcomings of supervision, in recent years, local procuratorial organs have taken multiple measures to continuously increase the prevention and crackdown on false lawsuits——
Pay attention to "combat power" from science and technology, and unblock channels for the supervision of false litigation. In recent years, the Supreme People's Procuratorate has actively promoted the R&D and application of artificial intelligence and big data in the supervision of false lawsuits. Various localities have also actively explored and practiced based on their own advantages and achieved good results.
Take the Procuratorate of Shaoxing City, Zhejiang Province as an example. In 2018, the court independently developed the "Smart Civil Banking Supervision System" to address private lending disputes, labor disputes, and marital property disputes that account for a relatively large number of cases and have a high probability of false litigation. For four types of cases including road traffic accident damage compensation disputes, the work model of "intelligent investigation + manual review + in-depth investigation (transferred investigation) + judgment supervision" is adopted to screen and screen false lawsuits, and the quality of supervision is greatly improved.
“At present, the Supreme People’s Procuratorate is carrying out testing and verification work on the'Intelligent Supervision System for False Litigation in Civil Cases'. It will further summarize experience, sort out data collision rules, and give full play to the role of the'two-law convergence platform' and the'investigation information inquiry platform' to enhance falseness. The ability to discover and identify litigation clues." Liu Yuqiang introduced.
Case handling is inseparable from a professional case handling team. In recent years, the Guangdong Provincial Procuratorate has specially set up a false litigation case handling team, built a unified command and case handling platform for the whole province, strengthened the linkage between upper and lower levels, and shared case information in a timely manner, and gradually formed a three-level court with division of labor and responsibility, each with its own focus, and linkage cooperation. Work pattern.
Fighting the cancer of false litigation cannot rely on it alone. It is understood that the public, procuratorate, and judicial departments of Anhui, Chongqing, Jiangsu, Zhejiang and other places actively communicate and coordinate, through joint investigations, countersigning documents, information sharing, etc., to establish cooperation mechanisms such as clues transfer, joint investigation and handling, and result feedback of false litigation cases. The penalties for false lawsuits have achieved a win-win situation.
Xu Ridan