Notice on Issuing the 14th Batch of Guiding Cases by the Supreme People's Procuratorate
The People’s Procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government, the Military Procuratorate of the People’s Liberation Army, and the People’s Procuratorate of the Xinjiang Production and Construction Corps:
According to the decision of the 17th meeting of the 13th Procuratorial Committee of the Supreme People’s Procuratorate on April 22, 2019, Guangzhou Yi Real Estate Co., Ltd. and other companies are now defrauding payment orders to implement false litigation supervision cases and other five guiding cases (Inspection No. 52— No. 56) was issued as the fourteenth batch of guiding cases for reference and application.
Supreme People's Procuratorate
May 21, 2019
Guangzhou Yi Real Estate Co., Ltd., etc., fraudulently obtained payment orders to implement false litigation supervision case
(Experiment No. 52)
【Key words】
Fraudulent payment orders Embezzlement of state-owned assets Prosecutorial recommendations
【gist】
The parties maliciously colluded, fabricated debts, defrauded the court to obtain payment orders, and conspired to reach a settlement agreement in the course of execution, invaded state-owned assets by means of repayment of debts, harmed the judicial order, and constituted a false lawsuit. Procuratorial organs should supervise such cases in accordance with the law, give full play to their legal supervision functions, maintain judicial order, and protect state-owned assets.
[Basic case]
Since 2003, the state-owned enterprise Jia Nong Industrial and Commercial Company has been sued to the court for failing to repay bank loans on time, and its bank accounts have been sealed. In order to transfer the assets of A Nong Industrial and Commercial Company and its subsidiaries, the members of A Nong Industrial and Commercial Company contributed capital in their personal names and established Guangzhou Yi Real Estate Company on May 26, 2003. Zhang Mou, the manager of A Nong Industrial and Commercial Company, served as Chairman of Yi Real Estate Company, and other teams Members serve as shareholders and managers of B Real Estate Company.
On June 23, 2004 and February 20, 2005, B Real Estate Company signed a loan agreement with borrowers, A Nong Industrial and Commercial Company’s C Industrial Company and Dingguoyuanchang, amounting to 2.51846 million yuan and 16 million yuan. Owned real estate provides mortgage guarantee for loans. Real Estate Company B does not have its own working capital and its own business, and its loaned funds mainly come from the funds entrusted by it by A Nong Industrial and Commercial Company.
When C Industrial Company borrowed money, A Nong Industrial and Commercial Company had deposited 13,893,401.67 yuan of financial management funds in B Real Estate Company which could be transferred, but A Nong Industrial and Commercial Company did not allocate the financial management funds. Instead, the subordinate C Industrial Company borrowed by way of real estate mortgage. When Dingguoyuanchang borrowed money, within 1-3 days after the loan of 16 million yuan was received, it was transferred to the account of the person outside the case in the name of "current money", and the person outside the case transferred the same amount of funds to B Real Estate by bank transfer within 5 days the company.
After the above-mentioned loan expired, B Real Estate Company immediately applied to the People's Court of Baiyun District, Guangzhou City for a payment order, demanding repayment of the loan. On September 6, 2004, the court issued (2004) Yunfamin Erdu Zi No. 23 Payment Order, ordering C Industrial Company to perform its payment obligations; on November 9, 2005, the court issued (2005) Yunfamin Erdu Zi No. 23 Payment Order No. 16 ordered Dingguoyuan Farm to perform payment obligations. C Industrial Company and Dingguoyuanchang did not raise any objections, and quickly reached a settlement agreement with B Real Estate Company to repay debts with houses during the implementation process. On October 11, 2004, C Industrial Company and B Real Estate Company signed a settlement agreement to repay the debt of RMB 2.5184.6 million with their own real estate. Bing Industrial Company also took the initiative to provide execution guarantees for loans from Dingguoyuan Farm with its own 36 properties. In February and April 2006, the court successively ruled that the property of Dingguoyuanchang was valued at RMB 6,117,212, and the property guaranteed by C Industrial Company was valued at RMB 3.969387 million to repay the debt to B Real Estate Company.
After the incident, the competent unit of Jianong Industrial and Commercial Company commissioned an evaluation on September 10, 2013. The evaluation report showed that the estimated value of the real estate involved in the case was more than 109 million yuan, which was more than the court ruling to repay the debt. The price of China is higher than 96.4 million yuan, and state-owned assets have been seriously damaged.
【Supervision by procuratorial organs】
Clues found In April 2016, the Guangdong Provincial People’s Procuratorate found out that B Real Estate Company may have fraudulently obtained payment orders and embezzled state-owned assets in the process of handling the criminal case of corruption and bribery of Mr. Zhang, the manager of A Nong Industrial and Commercial Company, and then handed the clues to Guangzhou. The Municipal People’s Procuratorate handles it. The People's Procuratorate of Guangzhou Municipality initiated the supervision procedure according to its powers and formed a case handling team with the People's Procuratorate of Baiyun District to jointly handle the case.
The investigation and verification team obtained court payment orders and enforcement case files. After review, it was found that B Real Estate Company, C Industry Company, and Dingguoyuanchang had a high degree of consistency in their statements on borrowing facts and other issues during the litigation process; the three parties took the initiative in the execution process. Quickly reached a settlement agreement for repayment of debts, but lacked the antagonism of the usual litigation; after reviewing the criminal files of Zhang’s corruption and bribery case, it was found that members of the team of A Nong Industrial and Commercial Company and B Real Estate Company had colluded and embezzled state-owned assets Subjective and intentional; after reviewing the industrial and commercial registration data, it was found that B Real Estate Company had no own funds, and its funds came from the funds of the escrow A Nong Industrial and Commercial Company; after obtaining the bank flow list, the flow of borrowed funds was verified. The case-handling team gradually clarified the context of the case along the transfer path of the funds and real estate involved, and re-examined the relevant personnel involved, and finally obtained testimony from Zhang and others to further consolidate the evidence.
Supervision Opinions On October 8, 2016, the Baiyun District People’s Procuratorate issued Suiyun Jianmin (Xing) Vi Jian (2016) No. 4 and No. 5 prosecutorial proposals in response to the aforementioned two payment orders of the Baiyun District People’s Court, pointing out that B Real Estate Company Malicious collusion with Bing Industrial Company and Dingguoyuanchang, fictitious debts, fraudulently obtained court payment orders, embezzled state-owned assets through the implementation of the settlement procedures, and harmed the normal judicial order. It is recommended that the court revoke the payment orders involved.
Supervision Results On May 15, 2018, the Baiyun District People’s Court issued (2018) Yue 0111 Min Du Supervision No. 1 and No. 2 civil rulings, respectively confirming that the aforementioned payment order involved in the case was wrong, ruling to revoke it, and rejecting the payment order of B Real Estate Company Application. In October of the same year, the Baiyun District People's Court implemented the reversal based on the effective ruling. So far, the loss of more than 109 million yuan in state-owned assets has been recovered. Zhang Mou, a former member of the Jianong Industrial and Commercial Company, and others have been prosecuted by the Guangzhou Municipal People’s Procuratorate on suspicion of corruption and bribery.
【Guiding significance】
1. Fictional debt fraudulent payment orders have become a manifestation of civil false litigation, and legal supervision should be strengthened. The supervision procedure provided by the Civil Procedure Law aims to enable creditors to obtain a basis for enforcement and resolve disputes conveniently and efficiently. In judicial practice, some parties use the characteristics of the court to issue payment orders mainly for formal review, and substantive problems are not easy to be discovered, malicious collusion, fictitious debts to defraud payment orders and obtain execution, infringing on the legitimate rights and interests of other civil entities. In this case, B Real Estate Company, C Industry Company and Dingguoyuanchang maliciously colluded and fabricated the debt application payment order, which constituted a false lawsuit. Since the court does not need to go through litigation procedures when issuing a payment order, it only conducts formal review of the facts and evidence provided by the parties. Therefore, false litigation cases of fraudulently obtaining payment orders are usually hidden. , Give full play to the legal supervision function.
2. Handling false litigation cases focuses on reviewing the facts of fabricating. False litigation usually initiates civil litigation procedures with fabricated facts, and the procuratorial organ should carry out investigation and verification work with this as the key content. In the process of handling this case, the case handling team grasped the facts of the case by reading the files of Zhang’s criminal case, and used the fixed evidence in the criminal case as a breakthrough point in handling the case; passed the key review of the company’s corporate business license, articles of association, and company registration application. , Shareholders’ meeting resolutions and other industrial and commercial data confirm that both C Industrial Company and Dingguoyuan were established by Jianong Industrial and Commercial Company, both of which are state-owned enterprises, and the real estate under their names is state-owned property, and the fact that the main team members of the above-mentioned companies have cross-employment; Obtaining tax filing materials, accounting books, fund management agreements and other file materials, it is found that B Real Estate Company does not have its own working capital and business, and its funds come from the funds of the escrow A Nong Industrial and Commercial Company; by obtaining the bank flow list, Ding Guoyuan was found After the loan arrived in the account, it was transferred to the account of the person outside the case in the name of "current money", and the person outside the case then transferred the equal amount of funds to B Real Estate Company, and found out the circulation of the borrowed funds. A series of facts and evidence all point to the parties' malicious collusion and fictitious debt fraud to obtain payment orders.
3. To discover and handle false litigation cases, the procuratorial organs shall form an overall joint force. False litigation not only infringes on the lawful rights and interests of other civil entities, but also affects the order of economic and social life, but also causes serious violations of judicial credibility and judicial order. Procuratorial organs should form an overall joint force and increase legal supervision. All business departments of the procuratorial organ shall promptly transfer to the civil prosecution department if they find false civil litigation clues in the course of performing their duties; and actively explore the establishment of a clues two-way transfer and feedback mechanism, clue sharing, and information interconnection mechanism between the business departments. This case is a typical case in which the procuratorial agency discovered possible false civil litigation clues in the process of handling criminal cases, and the civil procuratorial agency conducted an in-depth investigation.
【Regulations】
Article 14 and Article 216 of the Civil Procedure Law of the People's Republic of China
Article 414 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China"
Article 99 of the "People's Procuratorate Civil Procedure Supervision Rules (for Trial Implementation)"
Source: High Inspection Network