Since 2022, Ma Zhao lawyers have represented a third party to withdraw the claim, the case has suffered losses of more than 100 million yuan, since 2014, after 6 years of rights, has been through the criminal report, more than 600 civil lawsuits, difficult to win into the implementation of the program, do not want to be in the implementation of the program and suddenly appeared in the other effective judgments affecting the party's implementation. If the judgment continues to perform, the party more than 600 effective judgment will be reduced to a piece of paper, the results of many years of rights will come to naught. At that time, the parties only have a way of relief - to file a third party to revoke the lawsuit, but this type of litigation in the country's success rate of less than 2%, and in the case of the court of first instance has not won the case.
Ma Zhao lawyers at risk, especially in the case of the first instance, the face of the second instance, less than 5%, the case of less than one ten thousand percent of the overall success rate of the desperate situation, and the parties to work together, struggling, and the judge fully communicated with the dozens of pieces of evidence, tens of thousands of words of opinion. The court of second instance has held nearly ten sessions and the court before and after the meeting, took nearly a year, after reporting to the high court, successfully revoked the judgment of first instance and finally successfully revoked the judgment has entered into force, the party has saved a huge amount of loss. Mr. Ma Zhao was highly praised by the client and the judges of the first and second instance!
Brief description of the case
In 2014, a business and trade company applied for a loan to a pawnbroker and used the ownership of the house it held as a mortgage, and the two sides agreed on the interest on the loan, service fee, default penalty and so on. After the signing of the contract, according to the pawning company issued a notice of payment of instructions, the legal representative of the pawning company to the business company actually paid 15 million yuan loan, the pawning company and the business company for the completion of the mortgage registration formalities, and then the business company to pay only part of the interest and all the payment to the pawning company designated by the legal representative of the third party, has not been repaid the principal amount, owed a part of the interest is not yet paid, and did not pay the service fee. The service fee was not paid.
In January 2016, the hotel company and the original shareholders of the trading company signed the Equity Transfer Agreement, which stipulated that the original shareholders would transfer 100% equity interest in the trading company to the hotel company and agreed that all the loan principal, interest and liquidated damages owed by the trading company to the pawnshop company were to be repaid by the hotel company, in which the hotel company and the pawnshop company's legal representative and the actual controller were all Fu Mou, and that the transfer had been processed. The transfer has been completed with the registration procedures for industrial and commercial changes. After the completion of the transfer, all the seals of the trading company have been transferred to the management of the hotel company, and the legal representative of the trading company has been changed from the girlfriend of the original actual controller, Wang Mou, to the person designated by Fu Mou.
During the period from March to December 2016, Wang Mou, the original actual controller of the commerce company, privately engraved official seals and sold the right to operate stores to more than 200 purchasers under the name of the commerce company, totaling a fraudulent amount of more than 100 million yuan. Later, Wang was sentenced to life imprisonment for contract fraud, but more than 200 homebuyers only recovered more than 300,000 yuan of stolen money.
During the period from 2018 to 2020, more than 200 homebuyers sued the commerce company on the grounds of apparent agency, and after the first trial, second trial and retrial, more than 600 civil cases were filed, and the commerce company was finally adjudicated to refund all kinds of money and pay liquidated damages to more than 200 homebuyers, which amounted to a total of about 100 million yuan. During the litigation period of the above mentioned cases, Fu Mou and the litigation agent of the trading company repeatedly expressed their opinions that the trading company was a subordinate enterprise of the hotel company and had been completely controlled by the hotel company.
Subsequently, more than 200 purchasers assigned all the claims to Beijing Qixin Muda Company (our party, the plaintiff of the first instance, the appellant of the second instance), and the company as the applicant for execution, with the commerce and trade company as the executor of the compulsory execution application.
In the course of the enforcement procedure, Beijing Qixin Mouda Company suddenly found that in August 2021, the pawnbroker company sued the commerce company for the pawn contract dispute, and the commerce company replied without mentioning that the debt had been paid on behalf of the hotel company without any effective defense, and then the court ruled that the commerce company should repay the pawnbroker company for the principal amount, interest, liquidated damages, etc. and pay all kinds of fees, totaling more than The court then ordered the company to repay the principal, interest, default and other costs to the pawnbroker, totaling more than 30 million dollars, and the pawnbroker had the right of first refusal within the scope of the mortgage (hereinafter referred to as “Case No. 13872”). The only property currently available for enforcement is the mortgaged house ownership, with an appraised value of approximately 30 million dollars. If the above pawning dispute judgment is executed, Beijing Qixin Muta Company will have no property to execute all claims.
Therefore, Beijing Qixin Muda Company filed a third-party avoidance lawsuit against the above pawning dispute judgment.
Legal Relationship
Emphasizing the Application of the Principle of Penetrating Trial in Civil Cases
As early as 2019, the National Court Civil and Commercial Trial Work Conference Minutes (referred to as the “Nine Civil Minutes”), the Supreme Court has clearly put forward the requirements of the courts at all levels to identify the true meaning of the parties through the penetrating trial thinking to explore the true legal relationship, on April 26, 2024, it is in the official website released “the use of ‘penetrating trial thinking’ to achieve the civil and commercial On April 26, 2024, the official website published the article of “using ‘penetrating trial thinking’ to realize the substantive settlement of civil and commercial disputes”, emphasizing the use of “penetrating trial thinking” in the trial of civil cases.
For this case, Ma Zhao lawyers in the first trial, the second trial of many hearings and agency opinions, should pay great attention to the hotel company, pawn company, trading company, pay a multi-party affiliation, mixed relationship, the use of penetrating trial principles, break through the agreement of the contract itself and the formation of the legal relationship, the penetrating view of the shareholding structure between the companies, to find out the true meaning of the parties, to find out the true legal relationship. To identify the true meaning of the parties and explore the true legal relationship. Comprehensively determined that the transfer of debt had been constituted, and all the loans, interest, and liquidated damages that had not yet been paid by the commerce company to the pawn company should be repaid by the hotel company; the debt relationship between the commerce company and the pawn company had been extinguished; the commerce company and the pawn company had maliciously colluded in the dispute over the pawning contract and intentionally withheld the evidence, which led to errors in the court-issued effective judgment, and the judgment that had been entered into in the dispute over the pawn contract should be set aside. The judgment that has entered into force should be revoked.
Extreme Challenges and Difficulties
The purpose of the third party's revocation claim is to revoke a judgment that has already entered into force, and based on a series of factors such as the stability of the judgment, res judicata, demonstrative effect, credibility, etc., the success rate of such judgments is less than 2% of the similar cases in the whole country.
What is more serious is that the first instance of such cases is heard in the original court that issued the effective judgment. Specifically, in this case, according to the rules of the trial court, the case of the first instance has to be returned to the original trial court, where the effective judgment was issued by the presiding judge of the trial court, and the third-party annulment lawsuit filed by Beijing Qixin Mouda was heard by the vice-president of the trial court as the presiding judge. Based on a variety of reasons, although the first instance in the basic court has formed a five-member panel, and many times through the judges meeting, but the first instance judgment still rejected the Beijing qixin mouda trading company all the litigation request.
And as we all know, the second trial of the remand and change the rate of less than 5%, plus the third party to cancel the lawsuit itself less than 2% of the winning ratio, the case in the second trial stage of the possibility of change the sentence is less than one in 10,000, taking into account. This also makes the Beijing qixinmuda trading company limited and the agent are forced to the cliff, only in the second trial stage to fight, backwater, otherwise the previous criminal cases, hundreds of civil cases won the judgment will be reduced to a piece of paper, nearly 8 years of rights eventually become a bubble.
The second trial stage, the agent experienced a pre-trial conference, a hearing, six post-trial conference, almost weekly telephone communication with the judge, countless times and the parties to the conference call, submitted tens of thousands of words of representation, to the prison investigation and evidence collection, countless times to apply to the court to supplement the collection of evidence, etc., the Beijing Qixin Muta company has also many times with the presiding judge, the implementation of the relevant cases of the judge to carry out a long-term, frequent communication. Communication. The second trial before and after the entire year, the presiding judge had many consecutive days in the court overtime, repeatedly to the real estate site, many late at night or on weekends to communicate with the agent to understand the case, and the court of second instance president, vice president, the commissioner and other leaders have also asked several times to listen to the case report, the case in the process of the trial is also due to the complexity of the case, far-reaching impact of the reasons reported to the Higher People's Court for a hearing.
Outstanding, hard to win
Under the joint efforts of Beijing Qixin Muda Company and its agents, the case was eventually re-sentenced at the second trial stage, and the judgment of the first trial was revoked as well as the original judgment that had already entered into force.
Reflections on the case
Due to the complexity of the facts of this case, involving significant and far-reaching interests, involving multiple legal relationships and the need to apply the Supreme Court in recent years advocated the “principle of penetrating trial,” etc., so the agent's ability to communicate, the ability to express themselves, and all-round control of the case development of the overall qualities and capabilities of the requirements of the very high, but also more required to It also requires the agent to work seriously and meticulously, to understand the case in depth, to sort out the views and opinions of the agent, to communicate patiently and effectively with the parties, to communicate with the judge in a timely manner, and to provide effective feedback, response and treatment to the unexpected situation.
The victory of this case is not only the victory of Beijing Qixin Mouda Company, but also the victory of the agent, more valuable is that, even if the judge of the first trial rejected the Beijing Qixin Mouda Company's claim, but still gave a high evaluation and recognition of the agent, and the judge of the second trial and all the parties in the process of the case of the agent from the beginning to the end of the high degree of affirmation, but also to become the agent in the case of the results of the greater gains!
