China News Service, October 29. According to the Supreme People’s Procuratorate’s website, on the 29th, the Supreme People’s Procuratorate printed and distributed 4 typical civil prosecution follow-up and supervision cases.
The person in charge of the Sixth Prosecutors Office of the Supreme People’s Procuratorate stated that follow-up supervision is an important means to achieve precise supervision of civil prosecutions. If there are still obvious errors and illegal situations after the initial supervision, the procuratorial organs should perform their duties in accordance with the law, and follow-up supervision should be achieved. Supervise quality and efficiency.
The Supreme People’s Procuratorate recently released data on major cases handled by procuratorial organs across the country from January to September 2021, showing that the scale of civil procuratorial cases has expanded, and the quality and effectiveness of supervision is improving.
It is reported that in 2020, procuratorial organs across the country accepted a total of 1,150 follow-up supervision cases for supervision of effective judgment results, a year-on-year increase of 1.2 times. After review, 74 protests were filed, a year-on-year increase of 2.5 times.
From January to September 2021, 1107 follow-up supervision cases were accepted for supervision of effective judgment results, a year-on-year increase of 79.4%, and 60 protests were filed after review.
According to the person in charge, the four typical cases released this time involve common and frequent issues in the fields of private lending, financial borrowing, enforcement objections, and false mediation that are common in judicial practice, and have rectification and leading value for civil procuratorial supervision.
The Civil Procedure Supervision Rules of the People’s Procuratorate, which came into effect on August 1, 2021, clearly stipulates the civil prosecution supervision mechanism of "follow-up supervision"——
In any of the following circumstances, the People’s Procuratorate may re-supervise or submit to the higher-level People’s Procuratorate for supervision in accordance with relevant regulations: Where the judgment, ruling, or mediation made by the people’s court in a civil protest case still has obvious errors; Handle the matter within the time limit and reply in writing; the people’s court has incorrectly dealt with the procuratorial suggestion.
In this regard, the person in charge stated that follow-up supervision is not only an important means to achieve precise supervision of civil prosecutions and improve the quality and effectiveness of civil prosecution supervision, but also to reflect the dual effects of civil prosecutors’ public power supervision and private rights relief, and to achieve power error correction and rights relief. Important mechanism.
Regarding the next step, the person in charge stated that the Sixth Procuratorate will take the opportunity of the Supreme Procurator’s release of the main case data in the first three quarters to actively implement the "Opinions of the Central Committee of the Communist Party of China on Strengthening the Legal Supervision of Procuratorial Organs in the New Era" to carry out accurate civil affairs. Various work requirements for litigation supervision, continue to strengthen civil prosecution follow-up supervision, and further clarify the civil prosecutorial supervision standards that combine statutory and necessity through case preparation, prosecution and case handling, and foster a combination of power supervision and rights relief. The procuratorial thinking truly embodies the active judicial concept of daring to supervise and good at supervising.
Typical cases of follow-up and supervision of civil prosecution
Follow-up and supervision of private lending disputes between Li Mouli, Zhu Mowen and Zhu Mohui
【Key words】
Private lending Mortgage contract Mortgage rights follow-up supervision
【Basic case】
In February 2013, Li Mouli was told to the People’s Court of Xinyi City, Jiangsu Province for Zhu Mowen and Zhu Mohui as an order to order Zhu Mowen to repay the loan principal of 450,000 yuan, interest of 30,000 yuan, and liquidated damages. 20,000 yuan, a total of 500,000 yuan; the guarantor Zhu Mouhui was ordered to bear the responsibility for paying off debts.
After review, it was found that Zhu Mowen had borrowed money from Li Mouli many times since May 2010 because of the construction of real estate development projects, with a total of 450,000 yuan.
Zhu Mouhui (Zhu Mouwen's sister) made a written promise on July 8, 2010, which reads: I am willing to lend the real estate certificate to Zhu Mouwen as collateral for the loan.
Subsequently, Zhu Mouwen handed over the original real estate certificate with Zhu Mouhui as the property owner to Li Mouli, but the two parties did not go to the real estate transaction center to go through the registration procedures for the mortgage of other rights on the house involved in the case.
On July 8, 2012, Li Mouli and Zhu Mowen reached a repayment agreement, stipulating that the borrower Zhu Mowen promised to repay the loan of 20,000 yuan before August 10, 2012; the rest of the loan was mortgaged by real estate guarantee, in 2012 Negotiations will be held after August 10.
Later, Li Mouli repeatedly urged to borrow money without success, so she sued.
During the trial of the case, Zhu Mouhui transferred the property rights of the agreed mortgaged property to his younger brother Zhu Mouwei at a price of 164,655 yuan on June 7, 2013 and handled the transfer registration of the agreed mortgage.
On August 8, 2014, Zhu Mouwei transferred the mortgaged real estate in dispute to Sun Mouqing at a price of 250,000 yuan and handled the property transfer registration.
The People’s Court of Xinyi City, Jiangsu Province supported Li Mouli’s litigation regarding Zhu Mowen’s repayment of the loan principal, interest, and liquidated damages totaling 500,000 yuan, but the judgment was rejected on the grounds that the mortgaged house involved in the case had not been registered for mortgage. Li Mouli's lawsuit against Zhu Mohui.
After the first-instance judgment became effective, Li Mouli applied to the Xinyi City People's Court for a retrial, requesting that Zhu Mohui be sentenced to assume responsibility for paying off the debt.
The People's Court of Xinyi City, Jiangsu Province issued a civil ruling on April 17, 2017, dismissing Li's application for retrial.
Li Mouli refused to accept and applied to the Xinyi City People's Procuratorate for supervision.
【Inspection and Supervision】
The People’s Procuratorate of Xinyi City, Jiangsu Province reviewed for the first time and found that the mortgage contract between Li and Zhu was established and valid, and Zhu should assume the guarantee responsibility within the range of the value of the mortgaged property, and therefore submitted to Jiangsu Province on April 2, 2018. Xinyi City People's Court issued a retrial prosecution proposal.
The People’s Court of Xinyi City, Jiangsu Province held that in this case, Li Mouli claimed responsibility for mortgage guarantees against Zhu Mohui rather than compensation for breach of contract. The court should respect the party’s right of disposition and shall not try to hear whether Zhu Mohui should bear contractual liabilities. In the re-examination procuratorial proposal, the opinion that Zhu Mouhui should be liable within the value of the mortgaged property did not have applicable conditions in this case, and it was decided not to adopt the re-examination procuratorial proposal.
Follow-up supervision The Xinyi City People's Procuratorate of Jiangsu Province believed that the Xinyi City People's Court of Jiangsu Province did not improperly adopt the retrial procuratorial recommendations and filed a protest with the Xuzhou City People's Procuratorate in accordance with the law.
The Xuzhou People’s Procuratorate found that the original judgment was wrongly applied by law, and filed a protest to the Xuzhou Intermediate People’s Court on December 24, 2018.
The main reasons are: First, there is a mortgage contract between Li and Zhu, which is established and effective.
The establishment of a real estate mortgage and the conclusion of a mortgage contract are different legal facts. The mortgage right takes effect at the time of registration, but the mortgage guarantee contract takes effect when the contract is established, and the registration of the mortgage is not an effective requirement.
In this case, Zhu Mohui agreed to use his own house as the collateral for Zhu Mowen’s loan from Li Mouli. The intention was clear and did not violate the law. Therefore, the mortgage contract in this case was established and became effective in accordance with the law.
Second, Zhu Mouhui should assume responsibility within the range of the value of the mortgaged property.
The mortgage is already specified in the mortgage contract, so the mortgagor can foresee that the debt that he may perform on behalf of the debtor is part of the value of the mortgage.
When the mortgage contract is valid, the creditor can require the mortgagor to assume responsibility for the debt within the range of the value of the mortgaged property based on the mortgage contract.
Therefore, based on a valid mortgage contract, Li Mouli has the right to require Zhu Mohui to assume responsibility within the range of the value of the mortgaged property.
Third, the court's review of the mortgage contract between Li and Zhu does not violate the principle of punishment.
As a creditor, Li Mouli has filed a lawsuit requesting Zhu Mouwen and Zhu Mouhui to bear the responsibility for repayment. The basis of the claim includes the loan relationship and the security relationship; the original judgment is based on the litigation of the parties on the establishment and performance of the loan contract and the guarantee contract The review of the situation in accordance with the law does not violate the principle of sanctions.
Supervision Results The Xuzhou Intermediate People's Court made a civil ruling after review and ordered the Xinyi City People's Court of Jiangsu Province to retry the case.
The People's Court of Xinyi City, Jiangsu Province issued a retrial judgment on December 23, 2019, and ruled that Zhu Mohui shall be liable for compensation for the debts that Zhu Mowen cannot pay off within the limit of the value of the house involved.
The main reasons are: First, Zhu Mohui responded to Zhu Mowen’s request to issue a real estate mortgage guarantee promise to Li Mouli, and Li Mouli accepted the written commitment and the original real estate certificate involved. This continuous behavior can be determined that Zhu Mohui and Li Mouli A consensus was reached on the establishment of a real estate mortgage.
In the case that Zhu Mohui did not express an objection or termination of the guarantee, Li Mouli had reason to believe that Zhu Mowen had obtained Zhu Mohui's authorization by using the real estate as collateral to borrow from her continuously. Therefore, the principal of the mortgage guarantee involved The creditor's rights can be determined.
Based on this, it can be determined that the mortgage contract between the two parties is established and valid.
Second, although the real estate mortgage contract involved in the case took effect, the mortgage registration was not completed, and the mortgage rights were not effectively established, and there was only a contractual debt relationship between the two parties.
In this case, Zhu Mohui transferred the mortgaged real estate to others during the original trial, resulting in Li Mouli’s inability to exercise the right to request mortgage registration, and the realization of the creditor’s right to lose the security of the mortgage. For the losses caused by this, Li Mouli has the right to demand Zhu Mohui Bear the liability for breach of contract.
【Typical Significance】
After the procuratorial organs supervise the effective judgments that are indeed erroneous, they will take follow-up supervision measures if the courts have not corrected them. This not only implements the concept of precise supervision, but also enhances the rigidity of procuratorial supervision as an important method.
In this case, the original judgment failed to effectively distinguish between the property rights behavior and the creditor's rights behavior, and only on the grounds that the houses involved in the case did not go through the mortgage registration, rejected Li Mouli’s claims against Zhu Mohui, and made retrial prosecutorial recommendations to the prosecutors Not accepted.
Through the follow-up and supervision measures of the higher-level procuratorial organs, the retrial court further distinguished the boundary between the effective establishment of the mortgage contract and the effective establishment of mortgage rights, and determined that the mortgage contract between Li and Zhu was established and valid, and combined with Zhu Mohui During the original trial period, the relevant facts about the transfer of the mortgaged real estate were finally changed to Zhu Mohui's liability for compensation for the debts that Zhu Mowen could not pay off within the limit of the value of the house involved.
This not only reflects the correction and leading value required by precise supervision, but also strengthens supervision through optimizing supervision, and realizes the organic unity of political effect, social effect and legal effect of case handling.
Follow-up and supervision of financial loan contract disputes between Yang and Geng and the Jinnan branch of a Tianjin bank
【Key words】
Loan Contract Announcement Service Investigation and Verification Follow-up Supervision
【Basic case】
On April 19, 2016, the Jinnan branch of a bank in Tianjin sued the People’s Court of Tianjin Jinnan District, requesting an order for a trading company to pay off the principal and interest of the loan totaling RMB 17,538,230, and to pay from March 21, 2016 to the date when the judgment was confirmed. Interest incurred; Geng Mozhong, Xue Mo, Geng Moqiang, and Yang shall bear joint and several liability for the settlement of the above-mentioned debts.
The court of first instance found that: a Tianjin bank Jinnan branch and a trading company signed a "working capital loan contract" on November 28, 2013, stipulating that a Tianjin bank Jinnan branch would borrow 15,500,000 yuan from a trading company for a return loan. The loan period From November 28, 2013 to November 27, 2014, the annual interest rate is 9.6%.
If the loan principal is not repaid according to the contract, the overdue interest will be calculated and collected at the agreed loan interest rate plus 50% from the date the loan principal is overdue.
Geng Mouzhong and Geng Mouqiang signed a "guarantee contract" with Jinnan branch of a bank in Tianjin, stipulating that Geng Mouzhong and Geng Mouqiang will provide joint liability guarantee for the above-mentioned loans, and the guarantee period shall be within the expiry of the main debt performance period agreed in the last loan independent contract Two years from the date.
On November 29, 2013, Xue and Yang issued the "Guarantor's Spouse Commitment Letter", promising to agree to Geng Mouqiang and Geng Mouzhong's above-mentioned guarantee behavior, and agreed to share the guarantee responsibility for the loan with the guarantor.
On the same day, the Jinnan branch of a bank in Tianjin issued a loan principal of 15,500,000 yuan to a trading company as agreed.
As of March 20, 2016, a trading company still owed the loan principal of RMB 14.5 million and interest of RMB 30,038,230.
The Jinnan branch of a bank in Tianjin failed to collect collections for many times, so it was sued.
After the court failed to serve by mail, it immediately served legal documents to a trading company, Geng Moqiang, Yang and others by way of public notice.
The People's Court of Jinnan District rendered the first-instance judgment on August 16, 2016, supporting the litigation request of a Tianjin bank Jinnan branch.
After the judgment of the first instance took effect, the Jinnan branch of a bank in Tianjin applied to the Jinnan District People's Court for compulsory execution.
After Yang and Geng’s salary accounts were frozen by the court, they learned of the effective judgment, and they applied to the Jinnan District People’s Court for a retrial.
On July 21, 2017, the people of Jinnan District ruled to reject the retrial applications of Geng and Yang.
On August 23, 2017, Yang and Geng applied to the Jinnan District People’s Procuratorate for supervision.
【Inspection and Supervision】
Initial supervision Yang and Geng argued that their signatures were not written by them in the contract involved in the case, and submitted their own document inspection and appraisal opinions made by the Tianjin Kaiping Judicial Appraisal Center to support them.
After the procuratorial agency accepted it, it immediately carried out investigation and verification: First, it commissioned the Forensic Forensic Science Research Institute to verify that the fingerprint of Geng Mouqiang’s signature in the "Guarantee Contract" was not left by his finger; second, it asked the staff of Jinnan branch of a bank in Tianjin , Learned that according to the country’s management regulations on bank credit risk prevention and control, the "guarantee contract" must be signed, but the loan bank’s customer manager did not ask for it to sign, instead let Geng Mouzhong sign the "guarantee contract" and "guarantor’s spouse promise "Book" returned to the bank.
The Jinnan District People’s Procuratorate believes that the main evidence in the judgment of the court of first instance that Yang and Geng are responsible for the guarantee is forged, and on May 24, 2018, it issued a retrial prosecution proposal to the Jinnan District People’s Court.
The People's Court of Jinnan District did not accept the retrial procuratorial suggestion.
Follow-up supervision. The Jinnan District People’s Procuratorate believes that the Jinnan District People’s Court did not improperly adopt the retrial procuratorial suggestion, and filed a protest to the Second Branch of the Tianjin Municipal People’s Procuratorate in accordance with the law.
After review by the Second Branch of the Tianjin Municipal People's Procuratorate, it filed a protest to the Tianjin Second Intermediate People's Court on November 15, 2019.
The main reason is: Tianjin Kaiping Judicial Authentication Center issued an authentication opinion, and the signatures of "Geng Mouqiang" and "Yang Mou" on the "Guarantee Contract" and "Guarantor's Spouse Commitment Letter" are not my own handwriting; , Geng Mouqiang's signature on the "Guarantee Contract" was not printed by Geng Mouqiang; when asked by the procuratorial organ, the manager of a bank in Tianjin stated that Geng Mouqiang was not on the scene when the contract was signed, but Geng Mouqiang signed it. "Guarantee Contract" and "Guarantor's Spouse Commitment Letter" should be handed over to the bank.
The above-mentioned evidence is sufficient to prove that the loan guarantee agreement signed by a Tianjin bank Jinnan branch with Geng Moqiang and Yang Mo is not the true intention of the two guarantors, and the basic facts found in the original judgment lack evidence.
Supervision Results After the trial, the Second Intermediate People's Court of Tianjin issued a retrial civil ruling and sent the case back to the People's Court of Jinnan District for retrial.
The People's Court of Jinnan District issued a retrial judgment on November 2, 2020, and the judgment was changed to dismiss the litigation claims of a Tianjin bank Jinnan branch against Geng Moqiang and Yang Mo.
The main reason is that the Jinnan branch of a bank in Tianjin failed to interview Geng and Yang in accordance with the procedures.
The "Guarantee Contract" and "Guarantor's Spouse Undertaking" signed the signatures of Geng Moqiang and Yang that were not written or printed by him. The "Guarantee Contract" and "Guarantor's Spouse Undertaking" have no legal effect on Geng Moqiang and Yang.
On June 14, 2018, the People's Procuratorate of Jinnan District issued a procuratorial recommendation to the Jinnan branch of a bank in Tianjin on the issue of bank management.
On September 5, 2018, the Jinnan Sub-branch of a bank in Tianjin gave written feedback and handling measures: in accordance with the relevant regulations of the bank, administrative sanctions were given to the handling staff and the deputy governor in charge.
Conduct self-inspection and investigation on the whole bank’s credit on a case-by-case basis, promptly rectify and remedy problems found, and deal with those responsible accordingly; if no problems are found in the special self-examination and investigation, the account manager will issue a letter of commitment to ensure that the loan is “face-to-face” The system is implemented; the results of this processing are reported in a certain bank system to warn all employees.
【Typical Significance】
The procuratorial organs take follow-up supervision measures to supervise the court to correct correct and incorrect effective judgments in accordance with the law, which effectively embodies the civil procuratorial thinking that combines public power supervision and private power relief.
In this case, the court of the original trial had the following irregularities during the trial, which led to errors in the judgment.
The first is to adopt the method of service by public announcement after the mail service was returned, and the party was unable to participate in the lawsuit due to the problem of inadequate service.
Second, when there is evidence that the party’s signature is forged or altered, the retrial procuratorial suggestion is not accepted, and no further effective verification measures are taken.
Through the follow-up and supervision of the higher-level procuratorial organ, the retrial court corrected the irregular behavior in the original trial process, and substantively revised the judgment to dismiss the litigation request of a Tianjin bank Jinnan branch against Geng Moqiang and Yang Mo.
This not only reflects the public power supervision attribute of civil procuratorial supervision over the court's judicial power, but also realizes the objective need to provide relief to the private rights of the parties.
Moreover, in this case, the procuratorial agency issued social governance procuratorial recommendations to the Jinnan branch of a bank in Tianjin in response to management omissions and inadequate management in the financial industry, extending the case-handling function to the field of social governance, and promoting relevant banks to rectify and prevent transaction risks, and achieved good results. Social effects.
Application for implementation follow-up supervision by the fourth branch of a group company in Liaoning
【Key words】
Litigation preservation The third party's obligation to assist the implementation of objections Follow-up supervision
【Basic case】
In September 2008, a timber sales company sued Li Moujiang to the People's Court of Dadong District of Shenyang City, requesting an order for Li Moujiang to pay 5.36 million yuan in arrears.
A timber sales company filed a litigation preservation application during the trial of the case. The People’s Court of Dadong District of Shenyang City adopted litigation preservation measures on October 8, 2008 and issued a civil ruling: to seal up Li Moujiang’s bank deposits of 5.36 million yuan or the corresponding value property.
On October 9, 2008, the People's Court of Dadong District of Shenyang City served a notice of assistance in execution to the fourth branch of a group company in Liaoning, requesting the fourth branch of a group company in Liaoning to stop the payment of 5.36 million yuan to Li Moujiang for the project.
On February 16, 2009, the People's Court of Dadong District of Shenyang City made a civil judgment of the first instance on the above-mentioned contract dispute and ordered Li Moujiang to pay 5.36 million yuan and interest for a timber sales company.
After the judgment of the first instance took effect, a timber sales company applied to the People's Court of Dadong District, Shenyang City for compulsory execution on April 2, 2009.
The People’s Court of Dadong District of Shenyang City issued an enforcement ruling on July 15, 2009, stating: It has been found that Li Moujiang has 5.36 million yuan in income from the fourth branch of a group company in Liaoning, and the person subject to enforcement Li Mou is detained. Jiang's income from the fourth branch of a group company in Liaoning was 5.36 million yuan.
On July 21, 2009, the fourth branch of a group company in Liaoning filed an enforcement objection to the People’s Court of Dadong District of Shenyang City. The main reason is: Although the fourth branch of a group company in Liaoning and Li Moujiang have a construction project construction relationship, As of May 2008, the project payment between the two parties has been settled, and the fourth branch of a group company in Liaoning does not owe Li Moujiang for the project.
On October 20, 2009, the People’s Court of Dadong District of Shenyang City made an enforcement ruling and rejected the enforcement objection. The main reason was: after the court took the litigation preservation measures, the fourth branch of a group company in Liaoning did not submit to the court until the judgment came into effect. Objection, but filed a written objection to the court on July 21, 2009 during the execution process. Because the fourth branch of a group company in Liaoning did not file an objection in a timely manner during the litigation process, a timber sales company lost the security of the executor. Other The opportunity of property, and ultimately lead to its claims cannot be realized.
Therefore, the fourth branch of a group company in Liaoning shall be liable for compensation for the losses of a timber sales company.
The fourth branch of a group company in Liaoning refused to accept it and applied to the Shenyang Intermediate People's Court for reconsideration.
On January 14, 2010, the Shenyang Intermediate Court made an enforcement review ruling and rejected the application for reconsideration. The main reason was: the fourth branch of a group company in Liaoning did not raise an objection during the litigation preservation, and after the case entered enforcement after a lapse of 9 months Only then raised an objection, which ultimately led to the failure of the creditor's rights of a timber sales company to be realized.
Therefore, regardless of whether the payment made by the fourth branch of a group company in Liaoning is related to Li Moujiang since June 2008, the fourth branch of a group company in Liaoning should be liable for the losses of a timber sales company.
The fourth branch of a group company in Liaoning asserted that there was an illegal act in the enforcement activities of the People's Court of Dadong District of Shenyang City, and applied to the People's Procuratorate of Dadong District of Shenyang City for enforcement supervision.
【Inspection and Supervision】
Initial supervision On July 4, 2017, the People's Procuratorate of Dadong District of Shenyang City issued a procuratorial proposal to the People's Court of Dadong District of Shenyang City, recommending that the People's Court of Dadong District of Shenyang City correct illegal acts in the enforcement activities in accordance with the law.
The People's Court of Dadong District of Shenyang City issued a reply on October 13, 2017, and rejected the procuratorial suggestion.
Follow-up and supervision The People's Procuratorate of Dadong District of Shenyang City believes that it is improper that the People's Court of Dadong District has not adopted the procuratorial recommendations, so it is submitted to the People's Procuratorate of Shenyang City for follow-up supervision.
On August 6, 2018, the Shenyang Municipal People’s Procuratorate issued a procuratorial proposal to the Shenyang Intermediate People’s Court, suggesting that the Shenyang Intermediate People’s Court urge the Shenyang Dadong District People’s Court to correct illegal acts.
On December 17, 2018, the Shenyang Intermediate People's Court issued a reply, and it did not accept the procuratorial suggestion.
The Shenyang Municipal People’s Procuratorate considered that the Shenyang Intermediate People’s Court was improper in failing to adopt the procuratorial suggestion, so it asked the Liaoning Provincial People’s Procuratorate for follow-up supervision.
On December 17, 2020, the People’s Procuratorate of Liaoning Province issued a procuratorial proposal to the Higher People’s Court of Liaoning Province, recommending that the Higher People’s Court of Liaoning Province supervise and correct illegal enforcement actions in accordance with the law.
The main reasons are as follows: First, the court ruled that the fourth branch of a group company in Liaoning did not raise an objection during the litigation when there was no evidence to prove that the fourth branch of a group company in Liaoning violated its obligation to stop payment. Responsibility is unfounded by law.
The court did not specify in the notice of litigation preservation agreement that the fourth branch of a group company in Liaoning has the obligation to truthfully explain whether it owes the payment for the Li Moujiang project, and the court did not give the fourth branch of a group company in Liaoning on this issue. Make an inquiry to verify.
The fourth branch of a group company in Liaoning is not a party to the contract and has no right to raise an objection. The obligation as an assisting executor is to stop payment of construction funds to Li Moujiang. There is no evidence to prove that the fourth branch of a group company in Liaoning violated its obligation to stop payment.
The second is that the fourth branch of a group company in Liaoning raised an objection when the enforcement court required it to perform its debts of RMB 5.36 million due. The enforcement court rejected the objection application and continued to enforce the enforcement is a procedural violation.
Matters such as the maturity of the creditor's rights need to be subject to the actual trial of the litigation procedure. After the third party receives the notice of payment of the due debt, as long as it raises an objection, the court shall not enforce it.
Supervision Results On July 22, 2021, the Higher People's Court of Liaoning Province issued a reply letter, declaring that the procuratorial advice of the People's Procuratorate of Liaoning Province was correct and accepted it.
The main reason is: in the process of litigation, the people's court can preserve the property of the creditor's rights enjoyed by the person subject to execution from a third party.
The preservation of matured creditor's rights only requires that the third party shall not be able to repay the due creditor's rights of the party subject to the execution of the third party.
At this time, the third party is only assisting the obligor and not the person subject to execution. As long as the third party does not pay the person subject to execution, it is deemed to have performed the obligation.
The fourth branch of a group company in Liaoning has already acted to stop payment, that is, it should be determined that the company has fulfilled the assistance obligation stipulated in the assistance notice.
The failure of the fourth branch of a group company in Liaoning as a third party to raise an objection at the preservation stage does not indicate that it recognizes the true existence of the maturity claims, nor does it indicate that the enforcement court will recognize the maturity claims after the case is transferred to the enforcement stage. Implementation.
The fourth branch of a group company in Liaoning has exercised its statutory right to object to the execution in the execution procedure. Even if it does not object to the preservation of the matured creditor's rights at the litigation stage, the execution court cannot therefore determine that the person subject to execution has the right to a third party. The maturity of the creditor’s right is truly established, thereby depriving the third party of the right to raise an objection. The enforcement court’s enforcement action violated the above-mentioned legal provisions and should be corrected.
【Typical Significance】
In this case, the third-level procuratorial organs passed three enforcement supervisions, prompting the court to correct illegal civil enforcement actions, clarifying some representative problems that have long existed in the field of civil enforcement, and promoting the unified and correct implementation of civil enforcement laws.
The first is to clarify the characteristics of the third party’s obligation to assist in the preservation phase of the lawsuit.
The people’s court’s preservation of the due debts of the person subject to enforcement in the litigation stage essentially requires the third party not to perform the debt to the person subject to enforcement. It is a kind of passive omission obligation. As long as the third party does not perform the The debt is sufficient, and there is no obligation to respond to whether there is a due creditor's rights.
Therefore, in this case, because the fourth branch of a group company in Liaoning did not raise an objection during the litigation preservation stage, it cannot be determined that it has lost the right to raise an execution objection during the execution procedure.
The second is to clarify the boundary between judicial power and enforcement power in the review of enforcement objections, that is, the separation of trial and enforcement.
The judicial and enforcement powers of the people's courts are exercised separately by the judicial and enforcement departments, and neither party should cross the boundaries of powers.
After a third party raises an objection during the execution stage, the substantive legal relationship between the third party and the person subject to execution shall be handed over to the judicial department for trial in accordance with the trial procedures, and the execution department shall not make a substantive judgment.
In this case, the enforcement court actually reviewed the entity legal relationship between the fourth branch of a group company in Liaoning and Li Moujiang and determined the liability of the fourth branch of a group company in Liaoning.
This case is helpful to correct the tendency of "executing the trial on behalf of the trial" in the execution of the objection review.
A case of follow-up and supervision of construction contract disputes between a construction company and a real estate company
【Key words】
Construction Project False Mediation Investigation and Verification Follow-up Supervision
【Basic case】
On October 12, 2017, a construction company sued a real estate company to the People’s Court of Pujiang County, Jinhua City, Zhejiang Province, claiming: On July 2, 2014, a construction company won the bid for the second phase of a residential project developed by a real estate company. A construction contract was signed on July 8, 2014. It was agreed that the project would be undertaken by a construction company with a total construction area of 102,358 square meters and a total project cost of approximately 350 million yuan.
The contracting method is labor and materials, the engineering quantity is calculated according to the actual calculation, and the 1994 Zhejiang construction project budget quota is used as the basis for pricing. The comprehensive rate of civil engineering is 31.5%; the comprehensive rate of hydropower installation is 201.8%, followed by a cost consulting company During the audit, both parties settle the project progress payment based on the results of the follow-up audit.
After all projects are accepted, 90% of the total cost of the completed project will be paid within 20 days, 97% will be paid within 15 days after the price evaluation report is confirmed, and the other 3% will be used as the project quality guarantee.
On September 22, 2017, the second phase of a community project passed the completion acceptance.
On the same day, the project cost was approved by a cost consulting company to be 251.21 million yuan. A real estate company has now paid 158 million yuan for the project, and the remaining project funds have not been paid.
Therefore, a construction company requested the court to order a real estate company to pay 93.21 million yuan in arrears for the project, and the price of the project involved in the case should be compensated first.
A real estate company had no objection to the facts of a construction company's complaint, arguing that it was unable to pay on time due to shortage of funds.
During the trial of the case, the two parties reached a mediation agreement, stipulating that a real estate company owed a construction company a total of 93.21 million yuan for the project, which should be paid before December 16, 2017. If the real estate company fails to perform the project on time, the construction company has the right to apply Compulsory execution; a construction company has priority to receive compensation within the limit of 93.21 million yuan for the discounted or auctioned price of the project involved in the case.
The People's Court of Pujiang County issued a civil mediation statement to confirm the content of the aforementioned mediation agreement.
【Inspection and Supervision】
Initial supervision In May 2019, a group company outside the case claimed that the case was a false lawsuit and filed a complaint with the People's Procuratorate of Pujiang County, Jinhua City, Zhejiang Province.
The Pujiang County People's Procuratorate found that the case was suspected of false mediation, so it opened the case according to its authority and conducted investigation and verification.
The procuratorate found that in April 2014, all the shares of a real estate company were acquired by a group company, and the legal representative was changed to Pan Mouyi; Du Mouchun was the legal representative of a construction company.
The procuratorial agency went to the Pujiang County Public Resources Exchange Center to retrieve the record contract text and found that the record construction contract was signed on June 13, 2014 (hereinafter referred to as the "June Contract"), and the construction contract submitted to the court was signed in 2014 On July 18, 2016 (hereinafter referred to as the "July Contract"), the two contracts had major differences in terms of comprehensive project rates and fixed labor unit prices. Zhejiang Province had already carried out cost control in accordance with the 2010 quota standard, but the two parties adopted the 1994 quota. Standard, not in line with market conditions.
The procuratorate asked Pan Mouyi, the legal representative of a real estate company, and learned that Pan Mouyi had to borrow money from Du Mouchun and others in his own name for financing. He repaid the arrears and conspired with Pan Mouyi to include Pan Mouyi’s personal arrears in the project payment, fabricating the "July Contract" to increase the comprehensive rate and artificially inflating the project price, in order to receive priority through the project payment.
The project supervision, budget and final accounts, and follow-up auditors all confirmed that the actual project was performed in accordance with the "June Agreement", and a real estate company also paid the corresponding phase of the project in accordance with the agreement, and provided the project budget and final account report, measurement summary table, and project cost summary Tables and other basic materials related to the settlement of project funds confirm the statements of the above-mentioned personnel.
The Pujiang County People’s Procuratorate found that Pan Mouyi and Du Mouchun maliciously colluded, forged construction contracts, defrauded people’s court civil mediation documents through false litigation methods, infringed on the legitimate rights and interests of a real estate company, undermined normal judicial order, and damaged National interest and social public interest, so on June 28, 2019, put forward a retrial prosecution proposal to the People's Court of Pujiang County.
On September 25, 2019, the Pujiang County People's Court replied to the Pujiang County People's Procuratorate, deeming that the existing evidence was insufficient to prove that the civil mediation document involved in the case harmed the national interest and the public interest, and rejected the retrial procuratorial suggestion.
Follow-up supervision The Pujiang County People’s Procuratorate believes that the Pujiang County People’s Court’s failure to accept the retrial prosecution proposal is indeed wrong, and decided to follow up and supervise it in accordance with the law.
On September 29, 2019, the People's Procuratorate of Pujiang County filed a protest with the People's Procuratorate of Jinhua City.
The People's Procuratorate of Jinhua City protested that: 1. There is evidence that the "July Contract" does not conform to common sense, and that the project payment was not settled in accordance with this in the actual construction process.
The project supervision, budget and final accounts, and follow-up auditors’ inquiries transcripts confirmed that the actual performance of the project was performed in accordance with the "June Contract", and the "July Contract" increased the fixed labor unit price from "41.5 yuan/working day" to "88.24 yuan/ "Working days", the comprehensive rate of civil engineering increased from 14% to 31.5%; the comprehensive rate of hydropower installation engineering increased from 77.58% to 201.8%, which is obviously not in line with the construction market.
2. The civil mediation document involved in the case was formed by mutual collusion between Du Mouchun and Pan Mouyi.
Pan Mouyi admitted to submitting to a cost consulting company by fabricating the "July Contract", and then forming the "Construction Cost Examination Order" and filed a false lawsuit in the court.
Although Du Mouchun denied it, the statements of the relevant project management personnel can confirm that the project actually settled the project payment according to the pricing standard agreed in the "June Contract".
The project settlement standard is the substantive content and core terms of the construction. If the two parties agree to change, there should be traces of full negotiation. It is impossible to not notify other management personnel and keep work records in the process of performance.
At the same time, both of them knew that the actual controlling shareholder of a real estate company was a group company, they fictitiously mixed Pan Mouyi's personal debts into the company's debts, with false litigation intentions, seriously obstructing judicial order, and harming national interests and social public interests.
Supervision Results On October 30, 2019, the Jinhua City Intermediate People's Court ruled that the case should be brought for trial and the execution of the original mediation statement should be suspended.
On February 20, 2020, the Jinhua City Intermediate People's Court made a ruling to revoke the original civil mediation document and send the case back to the Pujiang County People's Court for retrial.
On December 24, 2020, the People's Court of Pujiang County issued a civil judgment after a retrial, ordering a real estate company to pay a construction company's construction cost of 22.23 million yuan and corresponding interest, and confirm the priority of a construction company based on this.
【Typical Significance】
1. Strengthening the supervision of false litigation in the field of construction engineering is conducive to purifying the ecology of the construction industry.
There are many violations of laws and regulations in the construction market, repeated prohibitions, and chaos such as Yin-Yang contracts, inflated project prices, and layers of subcontracting, making it difficult for judicial authorities to find out the truth and sort out legal relationships.
Falsified evidence and inflated engineering volume is a common manifestation of false litigation in the field of construction engineering. Procuratorial organs should maintain a keenness in handling cases in the field of construction engineering, fully exercise the power of investigation and verification, and discover clues to violations of laws and regulations.
Focus on key issues such as the signing time of the agreement involved in the case, differences in the content of the agreement, and the status of the final construction accounts, review the abnormal behavior of the parties that are not in accordance with common sense or industry practices, fix key evidence, find out forged evidence and false litigation facts, supervise in accordance with the law, and further regulate Order of the construction market industry.
2. Strengthening follow-up supervision is conducive to the organic integration of public power supervision and private power relief.
False lawsuits are not private rights disputes between the two parties, but illegal and criminal acts, which damage the judicial order, as well as the national and social public interests, and the procuratorial organs should supervise them in accordance with the law.
The Civil Procedure Law of the People's Republic of China stipulates that parties who attempt to infringe on the lawful rights and interests of others or evade performance of obligations through litigation, mediation, etc., shall be fined or detained according to the severity of the circumstances; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.
The "Civil Procedure Law of the People's Republic of China" also provides remedies for outsiders who have suffered from false litigation to protect their legal rights and interests. The third party did not participate in the litigation for reasons that cannot be attributed to him, but there is evidence to prove that the judgment is legally effective. If part or all of the content of the ruling or mediation statement is wrong, which damages the civil rights and interests of the person, a third-party revocation lawsuit may be filed.
Due to the strong concealment of false litigation, it is difficult for third parties to collect evidence to prove relevant facts. After discovering clues, procuratorial organs shall investigate, verify and obtain sufficient evidence of false litigation according to law and supervise them.
In this case, the procuratorial organ followed up and supervised the case, and through protests prompted the higher court to revoke the false mediation statement, maintaining judicial authority, and protecting the legitimate rights and interests of the parties involved.