Recently, King&Capital lawyers team represented a dispute more than ten years, after six times of refereeing the implementation of the objection to the case, by the Supreme People's Procuratorate protest, the Supreme People's Court, the retrial judgment to support the application of the implementation of the objector, revoke the original trial decision, not to implement the wrong implementation of the ruling.
The case involved a dispute over the enforcement of land rights and interests, with a huge amount of subject matter. The land involved in the case was rejected by the court, then filed an objection to the execution of the lawsuit, after the first trial, the second trial, the second trial, the retrial of the first and second trial, the supreme people's court rejected the retrial, the provincial procuratorate not to retrial supervision and other procedures, the party to the supreme people's procuratorate to apply for protest, five years unsuccessful. King&Capital lawyers team accepted the client entrusted to intervene in the case, successfully promote the supreme people's procuratorate to the supreme people's court filed a protest, the supreme people's court arraignment of the case for trial. After the supreme people's court trial committee discussion decision, the retrial judgment supported the party's execution objection request, terminate the wrong execution, this difficult and complex case of fourteen years, the King&Capital lawyers represent the complaint for six years, and finally won a complete success.
01
Case background: land rights dispute
In 2001, guangzhou company A through the auction process to obtain a piece of land in the package of non-performing claims assets of a Chinese asset management company in guangzhou office, the two sides signed a contract and pay the price. As the collective land had not yet completed the state-owned expropriation procedures, the land use certificate could not be transferred for the time being, and this historical problem laid the foundation for the subsequent disputes.
In 2004, the Asset Management Company transferred the other assets and interests in the asset package in addition to Lot A as a whole. The transferee changed hands several times, and the asset package eventually fell into the hands of Guangzhou Company B. As a result, the asset management company applied to the enforcement court for the transfer of the asset package.
As the asset management company did not specifically state that plot a was not included in the transferred asset package when it applied to the enforcement court to change the applicant for enforcement, Company B took advantage of this flaw and applied to the court to change all the “four assets”, including plot a, to its name. The court ruled that all the rights of the original applicant for enforcement (the original creditor) were to be succeeded by the assignee, i.e., all the mortgaged assets, including the interest in plot a, were to be vested in company B. Company B applied to the court for enforcement of the interest in plot a to be vested in it.
02
Twisted Litigation: Failed in Multiple Trials
Faced with the situation that the land it had been granted and paid consideration for was about to be encroached upon by the enforcement, Company A filed an application for enforcement objection to the enforcement court in 2011, which was rejected by the court, and then filed a lawsuit for enforcement objection.
The Foshan Intermediate Court of Guangdong Province rejected the claim in the first instance, and the Guangdong Provincial High Court ruled in the second instance to remand the case for retrial, which was still rejected in the first instance and upheld in the second instance, and Company A's application for a retrial to the Supreme People's Court was rejected. The court's main reasoning was that “Company A did not acquire the land interest in Lot A” and “Company B acquired it in good faith”.
In 2014, Company A started to file a protest application to the Supreme People's Procuratorate, but the Supreme People's Procuratorate has not yet decided on the case for a long time. By 2019, it has been 8 years since the dispute was filed, and the application for protest has been filed for more than 5 years, so the case has reached an impasse, and the parties' road of litigation has been nearly desperate.
03
King&Capital intervention: accurate analysis to find a breakthrough
In 2019, Company A commissioned Beijing King&Capital Law Firm to represent it in the application for anti-suit retrial.
The firm assigned senior partner Gong Piguo and lawyers Niu Xingli, Zhu Kun, Wang Qingnan and Guo Xinpeng to undertake the case.
The team reviewed all the case materials, re-collected and reorganized the evidence, and put forward two core legal opinions: “The asset company transferred only the claim, the land in question did not have the right of ownership, and the decision of the original trial found that the a plot of land belonged to company B was a mistake in the determination of the facts”, "Company B did not pay any consideration to obtain the a plot of land, and the decision of the original trial was incorrectly applied to the land. Company B did not pay any consideration for the acquisition of plot a. The trial judge incorrectly applied the goodwill acquisition system.
Based on these precise legal analyses, the team of lawyers re-submitted the Application for Protest to the Supreme People's Procuratorate, organized and supplemented the evidence materials, and submitted the Application for Protest as soon as possible in accordance with the law several times.
04
Successful protest: the supreme procuratorate support and decision to the supreme law protest
As a special lawsuit, the core point is to prove that the applicant objections to the subject matter of the civil rights and interests to exclude the implementation of the practice is also often faced with the applicant to the subject matter of the legal issues of good faith acquisition. In this case, the parties transferor, the transferee did not obtain the land title certificate, and the court to the good faith acquisition system that company B has land rights and interests in the implementation of justified. Although the former supreme people's procuratorate zhang jun procuratorate repeatedly emphasized “to strengthen the civil line of supervision”, but the party applying for the supreme people's procuratorate against the prosecution is very difficult.
After many communications and coordination between the lawyer team and the prosecutor, in December 2020, the Supreme People's Procuratorate discussed and decided by the Procuratorate Committee of the Supreme People's Procuratorate, the Supreme People's Procuratorate filed a protest to the Supreme People's Court with the Civil Supervision of the High Procuratorate [2014] No. 76 Civil Resistance Letter.
The Supreme People's Procuratorate decides to protest against civil cases only a handful of times a year, which makes it particularly rare for this case represented by the King&Capital team to receive a protest decision from the Supreme People's Procuratorate.
05
Mock trial: full preparation before the Supreme Court hearing to enhance the chances of winning the case
In view of the difficulty and complexity of the case and the special nature of the Supreme People's Court arraignment, in order to enhance the professional quality of the case, King&Capital Law Firm organized a mock court for rehearsal and discussion. Through the mock trial, the team of lawyers examined the weaknesses of the case from different perspectives and perfected the arguments, further consolidated the reasons and legal basis for the retrial, and laid a solid professional foundation for improving the chances of retrial and revision of the judgment.
This kind of measure in the form of moot court and collective discussion to test the professional opinion of difficult cases can strengthen the representation opinion and effectively predict and respond to possible legal disputes, which is an effective and pragmatic system of handling cases that King&Capital has been insisting on for many years, which is “pooling the strengths of the law firms and overcoming the difficult cases together”.
06
Successful retrial: The Supreme Court supported the client's claim
The Supreme People's Court ruled to bring the case to trial, and in September 2021, organized a retrial hearing.
During the hearing, King&Capital's lawyers re-emphasized the three major legal reasons for the re-trial of this case: firstly, the assets transferred to Company B did not include the rights and interests in the land parcel in dispute, the court's procedural ruling to change the applicant for execution did not have the legal effect of changing the right of ownership, and the court of first instance found that the facts were wrong in determining that Company B had been transferred to this parcel of land; secondly, Company B was neither bona fide (knowing that the asset package transferred did not include the parcel of land in dispute), nor had it acquired (not paying a penny of consideration, not taking possession of) the assets transferred; and secondly, Company B had not been a party to this case. Secondly, Company B was neither bona fide (knowing that the transferred asset package did not include the disputed land, nor did it acquire (not paying a penny of consideration, not possessing the land), and the trial court found that Company B owned the land interest by the bona fide acquisition system was an error in the application of the law; thirdly, Company A had already fulfilled the Land Use Right Transfer Agreement by paying the consideration and possessing the land, and had formed the right of anticipation of the land's utility right (quasi-right in rem), which could be excluded from the enforcement.
Because the case is difficult and complex, controversial, the case has been postponed for many times, and finally reported to the supreme people's court trial committee to discuss the decision, recently, the supreme people's court finally issued a judgment. The retrial judgment fully adopted King&Capital lawyers' first and second agency views and analytical arguments, and concluded that the asset package transferred by Company B did not include the land parcel in dispute, and did not constitute a good faith acquisition, supporting Company A's execution objection claim, and revoking the original first and second trial decisions, and not executing the original court ruling on the land parcel in dispute.
07
Value of the case: professionalism + perseverance is the key to winning the case
This case won, thanks to the Supreme People's Procuratorate of the factual supervision of the protest, thanks to the Supreme People's Court of the law of the re-trial of the judgment, but also thanks to the King&Capital lawyers team's professional strength and unremitting efforts.
In this case, company A was auctioned and transferred the disputed land in the package of non-performing debt assets, and company B obtained the other three assets in the package of assets through multi-handed transfer, the fact was not complicated. However, due to the mistake of the asset management company, due to the wrong decision of the enforcement court, and even more due to the greed of the parties of Company B, the case became difficult and complicated. The fact that the case was lost in the first and second instance and the Supreme People's Court rejected the complaint made the case narrow in its path to legal remedy and the probability of a reversal of the judgment extremely low. In the case of the facts of the case is extremely controversial, protest retrial procedures are extremely difficult to start, how to break the deadlock and strive to change the sentence? Summarized many factors, but the most important, or professional strength.
From the complexity of the facts in the chaos, deduce the most basic facts of the case: our party signed a contract to pay consideration for possession of the disputed land, the other party did not let the disputed land pennies unpaid but apply for execution;
From four or five boxes of evidence materials, we sorted out direct evidence proving that the other party was only assigned part of the claim and three assets (excluding the disputed plot of land) and made a litigation visualization chart, which helped the prosecutor and the judge to clarify the important legal evidence and face up to the indisputable basic facts;
The trial court recognized that the other party had not been assigned the land and applied the goodwill acquisition system to maintain the execution of the legitimate legal issues, King&Capital lawyers on this case does not apply to the goodwill acquisition system of professional analysis and legal argumentation, the Supreme People's Procuratorate Prosecutor and the Supreme People's Court judge's professional recognition.
It is also worth mentioning that, King&Capital lawyers on this case, “the right to expect the right should be excluded from the implementation of the civil rights and interests” point of view, in that year is very controversial, but in July this year, the supreme people's court issued the “on the trial of the implementation of the objection to the case of the interpretation of the applicable law”, it has been clearly recognized. To the effect that: the outsiders of the real estate was executed, “signed a contract, pay the consideration, possession of real estate, not for their own reasons not to do real estate property rights change” (the formation of the right to expect), the people's court shall support the implementation of objections to the lawsuit.
In addition, King&Capital lawyers to intervene in the case, the case has been through the Intermediate People's Court lost at first instance, the Higher People's Court of the second instance remanded, retrial lost, the Supreme People's Court rejected the appeal and other procedures, the case is almost deadlocked. “Bite the green mountain will not let go”, the basic facts of the case control and adhere to the judicial justice, is the final victory of the important factors, which also reflects the King&Capital lawyers “professional win tenacity and tenacity” of the professional philosophy and professionalism.
Complaints for more than ten years the case finally justice, King&Capital lawyers on behalf of six years of cases in the supreme people's court of the People's Republic of China. To adhere to the justice of the prosecutor, the judge to pay tribute! Thank you for the fairness and justice for all the efforts!
