Lv Zhixuan, senior partner of Beijing King&Capital Law Firm, represented XX Eco-agriculture Company in a civil loan dispute case, and won the first and second trial, and the court of retrial found that the case of the original trial was a false lawsuit, and ruled to reject the original plaintiff's litigation claims, and saved tens of millions of dollars of economic losses for the client.
I. Brief description of the case
(hereinafter referred to as XX company) is registered in Gansu a poor area of modern agriculture leading enterprises, leasing several villages of nearly 10,000 acres of collective land, planting high-quality apples, led to the development of the local economy, to solve the employment problem in poor areas, in the 15 years when the enterprise is the local benchmark agricultural leading enterprises, a local provincial small and medium-sized foundations for the development of this promising enterprise, to invest tens of millions of dollars. Enterprises, to invest tens of millions of dollars to further grow modern agriculture, but modern planting industry early investment is relatively large, the enterprise liquidity difficulties, so XX company to a local XX microfinance company borrowed money for capital turnover, small loan microfinance company then recommended a natural person Wei XX to XX company borrowed money, Wei XX and XX company signed a loan contract, and let XX company administrative and Administrator cashier Li XX in the local XX bank account for the collection account. After Li XX opened an account at the bank, Wei XX and the microfinance company actually controlled the bank account and password of Li XX's account, and then Wei XX and XX microfinance company raised funds from various sources, and used the raised funds to circulate in Li XX's account twice to form a 12 million yuan of running water, and then transferred the amount to the XX microfinance company's shareholders' account, and at the same time, Wei XX took the running water of the bank as a voucher to XX company and Li XX demanded money, and in 2015 Wei XX as the plaintiff to Gansu Pingliang City Intermediate People's Court filed a lawsuit to demand the return of 12 million yuan of money and interest, the plaintiff of the original trial Wei XX and the defendant of the original trial Gansu XX ecological agriculture limited company (hereinafter referred to as XX company) civil loan disputes, the intermediate court of Pingliang in December 27, 2017 to make (2017) Gan 08 Min Chu No. 64 civil judgment, which ruled that XX Company returned 12 million yuan of loan principal and interest. After the judgment, XX Company was not convinced and appealed to the Gansu Provincial Higher People's Court. In the first instance litigation at the same time the plaintiff Wei XX applied for litigation preservation, XX company account more than 13 million yuan was frozen, XX company capital chain break. Unable to pay the appeal fee, the Gansu Provincial Higher People's Court made (2018) Ganmin Final Ruling No. 181 on February 9, 2018, ruling that the case was handled in accordance with the withdrawal of the appeal by the appellant XX Company. After the final ruling, the Intermediate People's Court of Pingliang City, Gansu Province, enforced the case by transferring nearly 14 million RMB of the investment earmarked for small and medium enterprise fund in the account of XX Company to Wei XX, who dispersed and spent the amount to the relations involved in the false litigation.
The XX Company was not convinced by the judgment of the first instance and the ruling of the second instance, so on the one hand, it reported to the Kongdong Public Security Bureau of the Pingliang Public Security Bureau that Wei XX and Liu XX, the person in charge of the microfinance company, were suspected of taking out loans, hoping that through the criminal case to pursue the criminal responsibility of Wei XX, the person in charge of the microfinance company, and the persons involved in the criminal responsibility of Wei XX and the person in charge of the microfinance company and the persons involved in the criminal responsibility of Wei XX and the person in charge of the microfinance company, on the other hand, it initiated the supervision procedure of the procuratorate's civil trial Apply to Pingliang Municipal Procuratorate for inspection and supervision of this case.
Pingliang Municipal People's Procuratorate to Pingliang City People's Procuratorate supervision (2021) No. 14 civil retrial procuratorial recommendation to the Pingliang Intermediate Court retrial procuratorial recommendations. After discussion and decision by the Trial Committee of the Court, it made a civil ruling (2021) Gan 08 Civil Supervision No. 2 on October 11, 2021 to retry the case.
The Pingliang Municipal Intermediate Court formed a separate panel to hear the case in accordance with the law. In the course of the retrial, upon Wei XX's application, the Court notified Pingliang Kongdong District XXX Commerce and Trade Limited Liability Company (hereinafter referred to as XX Company, the predecessor of the Small Loan Company) and Pingliang XX Project Investment Limited Liability Company (hereinafter referred to as the New X Company) to participate in the litigation. Lv Zhixuan, the attorney-in-fact of the defendant XX Company, participated in the litigation. The case is now finalized.
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The focus of the dispute in this case is:
1. whether there is a private lending relationship between XX Company and Yinxing Company?
2. whether there is a private lending relationship between Wei XX and XX company?
3. whether there is false litigation in this case? On the question of whether there is a private lending relationship between XX Company and XX Small Loan Company.
After retrial review, another case has been effective (2022) Gan 08 civil final 1813 civil judgment determined by XX company return XX microfinance company borrowing principal of 6000000 yuan, from June 21, 2017 to August 19, 2019 between the interest of 3160000 yuan, that is, the effective judgment has been determined that XX company and XX microfinance company between the existence of a civil lending relationship, but the The lending relationship has no relevance to the 12 million yuan “loan”. Re-examination of the 12 million yuan loan is false water evidence of the formation of false litigation, re-examination of the first instance decision to revoke the case of the original judgment, rejected the original Wei XX litigation request, the case is characterized as false litigation. After the judgment, both parties appealed to the Gansu Higher People's Court, and the Gansu Higher People's Court ruled to maintain the result of the first instance judgment.
After the retrial judgment came into effect, XX Company has now filed an application for execution reversal, the case has been in Pingliang Intermediate People's Court Executive Board in the process of execution reversal, XX Company applied for execution reversal of the principal amount and years of interest losses totaling more than 40 million yuan, indirect losses of nearly 100 million yuan.
Second, the defendant retrial during the attorney's opinion
1. Retrial plaintiff's claim has no factual and legal basis, the loan contract can not be established, should be rejected according to law, all of its claims. And revoke the original judgment;
2. In this case, 12 million XX company and XX microfinance company does not exist in the lending relationship;
3.XX company and Wei XX loan relationship can not be established;
4. this case has constituted a false lawsuit;
5. the effective decision that the loan facts are Wei XX fictitious, Wei XX and XX company does not exist in the real lending relationship;
6. The lender Wei XX has no actual lending ability, and no actual lending behavior, the borrower XX company did not actually receive the loan;
7. the retrial plaintiff Wei XX and Liu X and others have fabricated the fact of borrowing, manufacturing bank water, fraudulent effective decision and fraudulent implementation of the deduction of XX province small and medium-sized enterprise fund to XX company's investment in the subjective intent;.
8. Wei XX false litigation led to XX company loss of 215167469.76 yuan, should be compensated according to law.
9. On the issue of additional third party: this case is a false lawsuit case, the formation of false lawsuit evidence is fixed, is the formation of individuals, this case is 12 million yuan of running water litigation, and small loan company and shuncheng company has nothing to do with the manufacture of false lawsuits of the Department of the natural person, can't be previously with the third party business dealings with the current mix. Thus weakening the fact and evidence of false litigation and violation of the law.
In summary, the above agency opinion please the panel in the deliberation of the case to give full consideration to Wei XX and others fabricated bank water, there is no real civil lending legal relationship, this case does not exist with the silver Xing micro-credit company there is a real borrowing and lending relationship, request to reject all the plaintiff's request for revocation of the judgment of the original trial, and at the same time the judgment of the plaintiff's reexamination of the Gansu XX eco-agriculture limited company has been withheld. All the funds, and compensation for direct and indirect losses.
Third, the court found that: this court retrial that
1. First, the application of law:
According to the supreme people's court on the application of the civil code of the People's Republic of China “time effect of a number of provisions” article 5 “civil code before the implementation of the case has been the final trial, the parties to the application for retrial or in accordance with the trial supervision procedures decided to be retried, shall not apply to the provisions of the civil code,” the provisions of the civil code before the implementation of the case has been the final trial and the decision to be retried, should be applied to the case. The provisions of the Civil Code shall not be applied to this case, which was decided to be retried after the final trial before the implementation of the Civil Code.
2. On the question of whether there was a private lending relationship between Wei XX and XX Company:
It was found that although Wei XX signed the Personal Mortgage Loan Contract with XX Company, Wei XX transferred the 12 million yuan of money formed by the two cycles to the bank card of Li XX, a manager of XX Company controlled by Wei XX, and then transferred the funds on the altered card to the controlling shareholder of XX Microfinance Company, Che XX, and XX Company actually did not receive the money contained in the contract, and according to the Provisions of the Supreme People's Court on Several Issues on the Application of Laws in the Trial of Cases of Private Lending and Borrowing According to Paragraph 2 of Article 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Loan Cases (Legal Interpretation [2015] No. 18), if the defendant argues that the loan has not yet actually taken place and can give a reasonable explanation, the people's court shall combine the amount of the loan, delivery of the money, the parties' economic capacity, the local area, or the way of transaction between the parties, the trading habits, the change of the parties' property, and the witness testimony, and other facts and factors. The people's court shall take into account the economic ability of the parties, the local or transaction mode between the parties, the transaction habit, the change of property of the parties and the witness testimony, etc., and make a comprehensive judgment to check whether the fact of borrowing and lending has occurred.
3. On the question of whether there was false litigation in this case:
This court reexamined the following: First, there was malicious collusion between the parties in the original trial. First, Wei XX based on the prosecution of the “personal mortgage loan contract” Wei XX and by XX company's legal representative Li XX entrusted Li XX signed, as the delivery of evidence of the receipt is Li Guohong respectively 7 million yuan and 5 million yuan bank transfer vouchers copy of writing, (but according to the statement of Li XX coercion to write).
Secondly, although Li XX think coerced, with the cooperation of XX, to complete the manufacture of 12 million yuan of bank water. Between the two parties in the 12 million yuan large sum of money litigation, there is no substantive civil rights and interests in dispute and substantive defense against.
Thirdly, Wei XX in the public security organs to state that they have no lending capacity, and the existing evidence proves that the 7 million yuan of funds used to create bank water is Liu X raised and transferred to Wei XX account. That Wei XX applying for judicial protection of the amount of litigation and its own economic situation is seriously inconsistent. The original trial there is a fictitious situation. Although Wei XX signed the Individual Mortgage Loan Contract with XX Company, under the instruction of Liu X, he handed over the bank cards of Li XX and Wei XX to someone else (Zhao X) for safekeeping, and utilized the bank card of Che XX, which was kept by XX Microfinance Company, to form the form of multiple reversals of accounts on August 15 and 16, 2017, respectively, and formed the transfer of $7 million and $5 million from Wei XX to Li XX for a total of 12 million yuan After the bank flow record, 7 million and 5 million yuan of funds were transferred back to the account of Che XX through 4.9 million, 2.1 million and 5 million yuan of three transfers, respectively, that is, 12 million yuan of bank flow water is created by the parties artificially and intentionally, i.e., the facts and amount of the borrowing involved in the case are fictitious for the parties. Third, the original trial there is borrowing legal civil procedure. Wei XX use artificially created bank water, civil litigation, XX company recognized 12 million yuan large amount of borrowing, the parties borrowed legal civil procedure, produce civil ruling documents, serious damage to the national judicial order, judicial authority. Therefore, there is false litigation in this case.
Judgment result: Wei XX's lawsuit is a false lawsuit, and the trial judgment should be set aside and the lawsuit should be dismissed. The Trial Committee of this court discussed and decided, based on the provisions of Article 115, Article 118 and Article 214 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: firstly, revoke the civil judgment No. 64 of the court (2017) Gan 08 Minchu; secondly, reject XX's litigation request. The case acceptance fee of RMB 101,960 was borne by Wei XX. Later, both parties appealed to the Gansu Higher People's Court, and the Higher People's Court upheld the first instance re-trial judgment.
This case XX company has applied for the implementation of the reversal, this case is currently the court of first instance Executive Board in the implementation of the reversal process, I believe that the court of first instance will be carried out in accordance with the law of the reversal, to the XX company a just result.
Analysis of the case
1. Sham litigation civil law provisions: Article 112 of the Civil Procedure Law of the People's Republic of China, malicious collusion between the parties in an attempt to infringe upon the lawful rights and interests of others through litigation, mediation, etc., the people's court shall reject the request and, depending on the severity of the circumstances, shall be fined, detained; constitutes a crime, shall be investigated for criminal responsibility.
According to the above law false lawsuit belongs to the civil and criminal cross-case, according to the civil procedure law, the parties to malicious collusion, attempting to infringe on the legitimate rights and interests of others through litigation, mediation, etc., the people's court shall reject its request, and according to the severity of the circumstances to be fined, detained; only constitutes a crime, according to law, be investigated for criminal responsibility.
That is to say that false litigation has both civil liability, civil treatment, also has criminal liability, criminal treatment. In this case, the public prosecutor's review of the decision not to prosecute, this is only criminal evidence is not sufficient, but civil still constitute false litigation, Wei XX and others should bear civil liability for false litigation.
In this case, the plaintiff in the retrial, together with others, malicious collusion, attempting to infringe upon the legitimate rights and interests of XX company through litigation, mediation, etc., the people's court shall reject its litigation request, and find that this case is a false lawsuit.
2. According to the Circular of the Supreme People's Court Supreme People's Procuratorate Ministry of Public Security and Ministry of Justice on Opinions on Several Issues Concerning the Handling of Criminal Cases Involving “Loan Sharks” issued by the Supreme People's Court Supreme People's Procuratorate Ministry of Public Security and the Ministry of Justice, No. 11 [2019], Article 1, Item 3, the common criminal techniques and steps in “loan sharking” include but are not limited to the following situations and steps include, but are not limited to, the following: (1) creating the illusion of private lending. Suspects and defendants often use unsecured, unguaranteed, fast lending as bait to attract victims to borrow money, and then sign relevant contracts or agreements. (2) create false accounts flow and other false payment facts. Suspects, defendants in accordance with the “loan” agreement amount of funds transferred to the victim's account, creating all the loans have been delivered to the victim's bank water and other traces, and then they will take various means to recover all the funds, the victim did not actually obtain “loan”! The victim did not actually obtain the “loan” agreement, the amount of money shown on the bank water. (3) intentionally create a breach of contract or arbitrarily determined that the breach of contract. Suspects, victims often set up default traps, create obstacles to repayment, etc., deliberately causing the victim default, forcing the victim to repay the false debt. (4) both hard and soft to make “debt”. In the case of the victim did not repay the false “loan”, the suspect with the help of litigation and other means to the victim for “debt”. This case is suitable for this provision of the above provisions, but due to the local public security investigative organs that the evidence of criminal liability is insufficient, the case in accordance with the civil trial supervision procedures to correct the erroneous judgment.
3. Legal issues relating to the reversal of execution
This case is a court trial and enforcement of the wrong case, in the trial supervision procedures in accordance with the law to correct the sentence, should be in accordance with the law by the court of first instance implementation of the reversal of the original case in the enforcement of how to transfer, are by the court of the wrong trial, the individual judges unprofessional, resulting in the wrong implementation of the transfer and lead to the XX company's lawful property was innocently transferred to the relevant persons, the court should be responsible for the case of the wrong verdict, the responsibility for the wrong implementation, XX The company is the victim, the right to request the trial court to correct the wrong judgment, and correct the wrong execution, execution reversal. The amount of execution reversal not only includes the principal, interest and loss and the court deducted the litigation costs of nearly 4000 million yuan.
4. the wrong case formed adverse social consequences
This case is the plaintiff wei xx abuse of the right to sue, false lawsuit, the trial court error fast verdict, error fast enforcement caused by the local modern agricultural leading enterprises closed down, forming huge losses and debts, and collateral damage to the interests of many villagers and Gansu small and medium-sized fund company's interests; this judicial injustice caused by the loss, the trial court should strengthen the efforts to implement the reversal, if the implementation of the money back to not, XX company should start applying for state compensation procedures. XX company should start to apply for state compensation program according to law. The execution court should fully consider the special circumstances of this case and strengthen the strength of the execution of the reversal, along the road to recover the money.
5. From this case, although justice is late, justice is not absent, believe in the power of judicial correction. Although the realization of fair justice, the protection of the private economy is a long way to go. Crack down on loans, combat false lawsuits, protect the private economy, realize fair justice, give escort to a good economic environment, although it is a long-term and arduous task, but the judicial sector under the leadership of the Party Central Committee is to realize that there will be investigated for any mistakes, there will be corrected, so that every citizen will feel fairness and justice.
6. This case in the senior lawyers under the representation of the wrong case can be corrected, highlighting the lawyers in the field of civil and commercial litigation in the professional advantages and professionalism.
