[introduction of the lawyer in this case] Hui Zhaoyang, senior partner of Liaoning Tongfang law firm, former consultant of the municipal government. He is a member of the Democratic National Construction Association, a member of the expert advisory group of the Shenyang intermediate people's court, a law enforcement supervisor of the Shenyang procuratorial organ, a member of the legal advisory group of the Shenyang municipal government, and a member of the 10th, 11th and 12th CPPCC of Shenyang. In particular, he has rich legal practice experience in economic litigation.
[case details] the plaintiff, a high-voltage disconnector Co., Ltd. (hereinafter referred to as the "isolation company"), filed a lawsuit to the court to request the Great Wall company to compensate for the loss of more than 7 million yuan due to the defendant, Shenyang Office of China Great Wall Asset Management Company (hereinafter referred to as the "Great Wall company"), which mistakenly frozen the execution and recovery of the isolation company for more than 60 million yuan for more than two years in taking protective measures in another case.
The court found that in July 2009, the Great Wall company filed a lawsuit with the Liaoning Provincial High Court to demand that the first defendant company repay the principal of more than 350 million yuan and interest, and required that the corporate veil should be lifted and 12 enterprises including the isolation company should bear the joint and several liability for repayment. In December 2010, the Liaoning Provincial High Court made a judgment of first instance, ordering the first defendant company to bear the liability for repayment, but rejected the appeal of the Great Wall company against the isolation company; Great Wall filed an appeal to the Supreme People's court against the judgment of the first instance. The case was sent back to the Liaoning Provincial High Court for retrial in June 2011. During the retrial, the isolation company has submitted to the court a separate judgment of the Supreme People's court to prove that the isolation company and a company of the first defendant are independent legal entities, and the debts of the first defendant have nothing to do with the isolation company. Great Wall still filed an application for property preservation with the Liaoning Provincial High Court even though it knew it, It demanded to seal up and freeze the property under the name of the isolation company. On December 24, 2011, the Liaoning Provincial Higher People's court frozen more than 67 million yuan from the execution of the isolation company in the Shenyang intermediate people's court; The case was tried in the first and second instance procedures, and the Supreme People's court made a final judgment on December 14, 2013, rejecting the claim of Great Wall company against the isolation company; On January 16, 2014, the higher people's Court of Liaoning Province made a ruling to release the freezing of the aforesaid implementation collection measures of the isolation company according to the final judgment, and the isolation company obtained all the implementation collection on June 5, 2012.
[trial result] the court of final appeal of this case held that the debtor of Great Wall company was not an isolation company, and the application for property preservation made by the isolation company should be cautious and the risk of applying for property preservation should be fully predicted. Great Wall company not only had no evidence to prove that the isolation company should bear joint and several liability to a company of the first defendant It is a subjective error to insist on applying for preservation measures on the premise of no affiliated relationship. Therefore, in accordance with Article 105 of the Civil Procedure Law of the people's Republic of China, the company shall be liable for compensation for the losses of the isolation company caused by the mistake in applying for property preservation.
[typical significance] this case is a typical property preservation damage liability dispute in litigation. China's civil procedure law gives the parties the right to apply for preservation measures in the proceedings. In order to ensure the execution of the future effective judgment documents and ensure the smooth recovery of the execution, the parties often apply to the court for property preservation in litigation. This measure is also to exert pressure on the defendant, However, the parties often neglect that property preservation in litigation is a double-edged sword, and their application for property preservation, especially the malicious application for preservation measures, may cause great losses to themselves.
Article 105 of China's civil procedure law clearly stipulates that "if there is an error in the application, the applicant shall compensate the respondent for the losses incurred by the preservation". Great Wall company, as one of the four major asset management companies, is often cautious in handling litigation related cases. However, it can not be said that it is vigilant about what happened in this case. Its attorney has done a lot of work in the case of Great Wall company suing isolation company for assuming joint and several liability for liquidation, including obtaining the industrial and commercial files and property information of all the defendants, aiming to include the isolation company into the scope of liquidation subject. However, the evidence is insufficient, In this case, we have acted on behalf of the isolation company to respond to the lawsuit and provided strong evidence in this case. After the court rejected the request of the isolation company, we sued the isolation company on behalf of the isolation company to claim for the compensation liability for the preservation error. Moreover, our lawyer's opinions in the two cases mentioned above were accepted by the court, and the Great Wall company paid a huge price for its erroneous preservation.
In the process of handling the case and when the parties encounter wrong property preservation measures, they should advise and assist the parties to take up legal weapons to protect their rights; But at the same time, it also reminds lawyers to be cautious when proposing property preservation measures for the parties, especially when proposing the parties to take property preservation measures, so as to avoid losses to the parties and avoid the practice risks that should not have occurred.
[case details] the plaintiff, a high-voltage disconnector Co., Ltd. (hereinafter referred to as the "isolation company"), filed a lawsuit to the court to request the Great Wall company to compensate for the loss of more than 7 million yuan due to the defendant, Shenyang Office of China Great Wall Asset Management Company (hereinafter referred to as the "Great Wall company"), which mistakenly frozen the execution and recovery of the isolation company for more than 60 million yuan for more than two years in taking protective measures in another case.
The court found that in July 2009, the Great Wall company filed a lawsuit with the Liaoning Provincial High Court to demand that the first defendant company repay the principal of more than 350 million yuan and interest, and required that the corporate veil should be lifted and 12 enterprises including the isolation company should bear the joint and several liability for repayment. In December 2010, the Liaoning Provincial High Court made a judgment of first instance, ordering the first defendant company to bear the liability for repayment, but rejected the appeal of the Great Wall company against the isolation company; Great Wall filed an appeal to the Supreme People's court against the judgment of the first instance. The case was sent back to the Liaoning Provincial High Court for retrial in June 2011. During the retrial, the isolation company has submitted to the court a separate judgment of the Supreme People's court to prove that the isolation company and a company of the first defendant are independent legal entities, and the debts of the first defendant have nothing to do with the isolation company. Great Wall still filed an application for property preservation with the Liaoning Provincial High Court even though it knew it, It demanded to seal up and freeze the property under the name of the isolation company. On December 24, 2011, the Liaoning Provincial Higher People's court frozen more than 67 million yuan from the execution of the isolation company in the Shenyang intermediate people's court; The case was tried in the first and second instance procedures, and the Supreme People's court made a final judgment on December 14, 2013, rejecting the claim of Great Wall company against the isolation company; On January 16, 2014, the higher people's Court of Liaoning Province made a ruling to release the freezing of the aforesaid implementation collection measures of the isolation company according to the final judgment, and the isolation company obtained all the implementation collection on June 5, 2012.
[trial result] the court of final appeal of this case held that the debtor of Great Wall company was not an isolation company, and the application for property preservation made by the isolation company should be cautious and the risk of applying for property preservation should be fully predicted. Great Wall company not only had no evidence to prove that the isolation company should bear joint and several liability to a company of the first defendant It is a subjective error to insist on applying for preservation measures on the premise of no affiliated relationship. Therefore, in accordance with Article 105 of the Civil Procedure Law of the people's Republic of China, the company shall be liable for compensation for the losses of the isolation company caused by the mistake in applying for property preservation.
[typical significance] this case is a typical property preservation damage liability dispute in litigation. China's civil procedure law gives the parties the right to apply for preservation measures in the proceedings. In order to ensure the execution of the future effective judgment documents and ensure the smooth recovery of the execution, the parties often apply to the court for property preservation in litigation. This measure is also to exert pressure on the defendant, However, the parties often neglect that property preservation in litigation is a double-edged sword, and their application for property preservation, especially the malicious application for preservation measures, may cause great losses to themselves.
Article 105 of China's civil procedure law clearly stipulates that "if there is an error in the application, the applicant shall compensate the respondent for the losses incurred by the preservation". Great Wall company, as one of the four major asset management companies, is often cautious in handling litigation related cases. However, it can not be said that it is vigilant about what happened in this case. Its attorney has done a lot of work in the case of Great Wall company suing isolation company for assuming joint and several liability for liquidation, including obtaining the industrial and commercial files and property information of all the defendants, aiming to include the isolation company into the scope of liquidation subject. However, the evidence is insufficient, In this case, we have acted on behalf of the isolation company to respond to the lawsuit and provided strong evidence in this case. After the court rejected the request of the isolation company, we sued the isolation company on behalf of the isolation company to claim for the compensation liability for the preservation error. Moreover, our lawyer's opinions in the two cases mentioned above were accepted by the court, and the Great Wall company paid a huge price for its erroneous preservation.
In the process of handling the case and when the parties encounter wrong property preservation measures, they should advise and assist the parties to take up legal weapons to protect their rights; But at the same time, it also reminds lawyers to be cautious when proposing property preservation measures for the parties, especially when proposing the parties to take property preservation measures, so as to avoid losses to the parties and avoid the practice risks that should not have occurred.
Legal consultation hotline