[introduction to the lawyer of this case]: Gai Wentao, partner of Liaoning Tongfang law firm and member of the Democratic National Construction Association. Since practicing, he has represented a large number of civil, criminal and administrative cases, has a solid theoretical foundation, accumulated rich practical experience, safeguarded the legitimate rights and interests of the parties, and was unanimously recognized by the parties.
[key points of adjudication]: accurately judge the criminal and civil nature of economic cases, and seize the main evidence that can determine the facts of the case from the jumble of evidence.
[basic case]: on February 11, 2009, Liaoning Shenyang Kaiyuan Cable Manufacturing Co., Ltd., as the subcontractor, signed a contract agreement with the defendant, which agreed that the subcontractor provided the existing wire production equipment to the contractor for use, and the contractor was responsible for custody and maintenance; The contract period is from January 1, 2009 to December 31, 2009, and the contract fee is 1.6 million yuan per year. The scope of contract is the wire production and wire operation of Liaoning Shenghua Kaiyuan Cable Manufacturing Co., Ltd; The contract fee is owned by Liaoning Shenyang Kaiyuan Cable Manufacturing Co., Ltd. After the end of the contract period, on April 25, 2010, the two parties jointly signed the supplementary agreement on the accounts receivable of Liaoning Shenghua and wire workshop for share withdrawal and liquidation. After the reconciliation between the plaintiff and the defendant, the second defendant still owed the plaintiff 3866986.62 yuan in accounts receivable. After the agreement was signed, the whereabouts of the two defendants were unknown. In 2014, the plaintiff reported the case. Shenyang Public Security Bureau Shenbei New District Branch accepted the criminal case of the second defendant suspected of misappropriating funds. After the audit entrusted by the public security organ, the appraisal conclusion was that the second defendant owed the plaintiff 3253910.44 yuan. On January 31, 2018, Shenbei New District branch of Shenyang Municipal Public Security Bureau made a decision to cancel the case (Shen Gong (Shen Bei) Xi'an Zi (2018) No. 002), believing that the second defendant should not be investigated for criminal responsibility, and the criminal case was cancelled. The plaintiff filed a lawsuit in this case, requiring the defendant to bear 3253910.44 yuan and interest. In the lawsuit, the defendant Wang sunlong did not appear in court, and the court tried the case in absentia according to law.
[judgment result] judgment of first instance:
1、 The defendants ye qianmeng and Wang sunlong shall pay the plaintiff Liaoning Shenghua Cable Co., Ltd. 3253910.44 yuan within 10 days from the date when this judgment becomes legally effective;
2、 The defendants ye qianmeng and Wang sunlong shall pay the plaintiff Liaoning Shenghua Cable Co., Ltd. the interest within ten days from the date when this judgment becomes legally effective (calculated at the annual interest rate of 24% from March 14, 2018 to the date when the principal is paid off)
3、 Other claims of the plaintiff Liaoning Shenghua Cable Co., Ltd. were rejected.
If the obligation to pay money is not performed within the period specified in this judgment, the debt interest during the period of delayed performance shall be doubled.
After the judgment of the first trial, the defendant appealed.
The second trial judgment on June 20, 2019: the appeal was rejected and the original judgment was upheld.
[reason for judgment]: the focus of the dispute in this case is whether there is a contractual relationship between the plaintiff and the defendant, whether the defendant should bear the civil liability for paying the arrears and the amount of arrears. According to the supplementary agreement of Liaoning Shenghua and wire workshop for withdrawal and liquidation of accounts receivable provided by the plaintiff and the record of inquiry of Shenyang Public Security Bureau Shenbei New District branch to the defendant, it is stated that the defendant contracted the wire workshop and was responsible for the profits and losses of the wire business. Therefore, there is a contractual relationship between the plaintiff and the defendant. As for the amount of arrears, the amount of arrears should be 3253910.44 yuan according to the supplementary agreement of Liaoning Shenghua and wire Workshop on withdrawal and liquidation of accounts receivable and the audit results of the audit report.
Relevant provisions:
Article 60 of the contract law of the people's Republic of China: the parties shall fully perform their obligations as agreed.
The parties shall abide by the principle of good faith and perform the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
Article 107 If a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, it shall be liable for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
Article 109 If a party fails to pay the price or remuneration, the other party may require it to pay the price or remuneration.
Article 114 the parties may agree that in case of breach of contract, one party shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method for calculating the amount of compensation for losses arising from the breach.
If the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or the arbitration institution to appropriately reduce them.
Article 9 of the provisions of the Supreme People's Court on Several Issues concerning economic crime suspects in the trial of economic dispute cases: the limitation of action for victims to request protection of their civil rights shall be suspended during the period when public security organs and procuratorial organs investigate and deal with economic crime suspects. If the public security organ decides to cancel the suspected economic crime case or the procuratorial organ decides not to prosecute, the limitation of action shall be recalculated from the day after the case is cancelled or the decision is not to prosecute.
Article 144 of the Civil Procedure Law of the people's Republic of China: if the defendant refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, he may make a judgment by default.
Article 253 if the person subjected to execution fails to perform his obligation to pay money within the period specified in the judgment, written order or other legal documents, he shall pay double the interest on the debt during the period of delay in performance. If the person subjected to execution fails to perform other obligations within the time limit specified in the judgment, ruling or other legal documents, he shall pay a penalty for delay in performance.
[lawyer's opinion]: I. This case should be a civil case. When the lawyer accepted the entrustment of the case, the criminal case of the case in the public security organ had not been revoked. The background of the criminal case was that ye qianmeng was arrested on January 26, 2014. On March 4, 2014, the procuratorate was arrested on suspicion of embezzling funds. On May 4, 2014, the public security organ transferred the case for prosecution. After examination, the procuratorate returned the case to the public security organ for supplementary investigation. The public security organ requests to withdraw the prosecution during the supplementary investigation, and the procuratorate agrees. On September 2, 2014, the public security organ changed the compulsory measures for ye qianmeng to obtain bail pending trial and released him. On September 2, 2015, the compulsory measures for ye qianmeng to obtain bail pending trial were removed due to the expiration of the time limit for obtaining bail pending trial. Wang sunlong was always on bail due to physical reasons, and then the compulsory measures were removed due to the expiration of the time limit for obtaining bail pending trial. The pending situation of the case at that time required the lawyer to first judge whether the defendant in the case constituted a crime, and whether the defendant constituted a crime or not determined the lawyer's different agency ideas. Upon examination, the two defendants have dual identities in the plaintiff company, namely, the manager appointed by the company to be responsible for sales and the contractor of the workshops under the company. If considering from the identity of the defendant's sales manager, the defendant used part of the proceeds from the sale of the company's products to pay his personal debts, it should be suspected of a criminal offence. However, according to the contents of the contract agreement signed by both the plaintiff and the defendant and the supplementary agreement of Liaoning Shenghua and wire workshop for withdrawal and liquidation of accounts receivable signed after the completion of the contract, it should be clear that the creditor's right and debt relationship between the second defendant and the plaintiff based on the contract agreement should be a civil case. After clarifying the contents of the case, the lawyer applies to the public security organ for withdrawing the case. According to Article 25 of the provisions on handling economic crime cases by public security organs issued by the Supreme People's Procuratorate and the Ministry of public security, in the process of investigation, if the public security organ finds any of the following circumstances, it shall cancel the case in a timely manner: (1) within 12 months from the date of lifting the compulsory measures against the suspect, It still cannot be transferred for examination and prosecution or other treatment according to law. After many negotiations with the public security organ, the public security organ made a decision to cancel the case. Subsequently, the lawyer filed a civil lawsuit in this case.
2、 Grasp the main evidence of the case and prove the facts of the case. During the trial, the defendant raised different opinions on whether there was a contract relationship between the two parties, the subject of the case, the amount of arrears, etc. In this case, there is a long time span, a lot of evidence and confusion, and the name of the subject has been changed many times, but the main evidence is the contract agreement, which can prove that the two parties have a contract relationship; The signing subjects of the supplementary agreement between Liaoning Shenghua and wire Workshop on withdrawal and liquidation of accounts receivable are the plaintiff and the defendant of the case, which proves that the defendant has actually recognized the plaintiff's subject identity and can prove that the subject of the case is correct; The audit report issued by the relevant accounting firm entrusted by the public security organ can prove the amount of arrears of the case because the defendant did not raise any objection at that time. This requires lawyers to be able to grasp the main evidence, clear the context of the case, make correct judgments and prove the facts of the case.
[key points of adjudication]: accurately judge the criminal and civil nature of economic cases, and seize the main evidence that can determine the facts of the case from the jumble of evidence.
[basic case]: on February 11, 2009, Liaoning Shenyang Kaiyuan Cable Manufacturing Co., Ltd., as the subcontractor, signed a contract agreement with the defendant, which agreed that the subcontractor provided the existing wire production equipment to the contractor for use, and the contractor was responsible for custody and maintenance; The contract period is from January 1, 2009 to December 31, 2009, and the contract fee is 1.6 million yuan per year. The scope of contract is the wire production and wire operation of Liaoning Shenghua Kaiyuan Cable Manufacturing Co., Ltd; The contract fee is owned by Liaoning Shenyang Kaiyuan Cable Manufacturing Co., Ltd. After the end of the contract period, on April 25, 2010, the two parties jointly signed the supplementary agreement on the accounts receivable of Liaoning Shenghua and wire workshop for share withdrawal and liquidation. After the reconciliation between the plaintiff and the defendant, the second defendant still owed the plaintiff 3866986.62 yuan in accounts receivable. After the agreement was signed, the whereabouts of the two defendants were unknown. In 2014, the plaintiff reported the case. Shenyang Public Security Bureau Shenbei New District Branch accepted the criminal case of the second defendant suspected of misappropriating funds. After the audit entrusted by the public security organ, the appraisal conclusion was that the second defendant owed the plaintiff 3253910.44 yuan. On January 31, 2018, Shenbei New District branch of Shenyang Municipal Public Security Bureau made a decision to cancel the case (Shen Gong (Shen Bei) Xi'an Zi (2018) No. 002), believing that the second defendant should not be investigated for criminal responsibility, and the criminal case was cancelled. The plaintiff filed a lawsuit in this case, requiring the defendant to bear 3253910.44 yuan and interest. In the lawsuit, the defendant Wang sunlong did not appear in court, and the court tried the case in absentia according to law.
[judgment result] judgment of first instance:
1、 The defendants ye qianmeng and Wang sunlong shall pay the plaintiff Liaoning Shenghua Cable Co., Ltd. 3253910.44 yuan within 10 days from the date when this judgment becomes legally effective;
2、 The defendants ye qianmeng and Wang sunlong shall pay the plaintiff Liaoning Shenghua Cable Co., Ltd. the interest within ten days from the date when this judgment becomes legally effective (calculated at the annual interest rate of 24% from March 14, 2018 to the date when the principal is paid off)
3、 Other claims of the plaintiff Liaoning Shenghua Cable Co., Ltd. were rejected.
If the obligation to pay money is not performed within the period specified in this judgment, the debt interest during the period of delayed performance shall be doubled.
After the judgment of the first trial, the defendant appealed.
The second trial judgment on June 20, 2019: the appeal was rejected and the original judgment was upheld.
[reason for judgment]: the focus of the dispute in this case is whether there is a contractual relationship between the plaintiff and the defendant, whether the defendant should bear the civil liability for paying the arrears and the amount of arrears. According to the supplementary agreement of Liaoning Shenghua and wire workshop for withdrawal and liquidation of accounts receivable provided by the plaintiff and the record of inquiry of Shenyang Public Security Bureau Shenbei New District branch to the defendant, it is stated that the defendant contracted the wire workshop and was responsible for the profits and losses of the wire business. Therefore, there is a contractual relationship between the plaintiff and the defendant. As for the amount of arrears, the amount of arrears should be 3253910.44 yuan according to the supplementary agreement of Liaoning Shenghua and wire Workshop on withdrawal and liquidation of accounts receivable and the audit results of the audit report.
Relevant provisions:
Article 60 of the contract law of the people's Republic of China: the parties shall fully perform their obligations as agreed.
The parties shall abide by the principle of good faith and perform the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
Article 107 If a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, it shall be liable for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
Article 109 If a party fails to pay the price or remuneration, the other party may require it to pay the price or remuneration.
Article 114 the parties may agree that in case of breach of contract, one party shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method for calculating the amount of compensation for losses arising from the breach.
If the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or the arbitration institution to appropriately reduce them.
Article 9 of the provisions of the Supreme People's Court on Several Issues concerning economic crime suspects in the trial of economic dispute cases: the limitation of action for victims to request protection of their civil rights shall be suspended during the period when public security organs and procuratorial organs investigate and deal with economic crime suspects. If the public security organ decides to cancel the suspected economic crime case or the procuratorial organ decides not to prosecute, the limitation of action shall be recalculated from the day after the case is cancelled or the decision is not to prosecute.
Article 144 of the Civil Procedure Law of the people's Republic of China: if the defendant refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, he may make a judgment by default.
Article 253 if the person subjected to execution fails to perform his obligation to pay money within the period specified in the judgment, written order or other legal documents, he shall pay double the interest on the debt during the period of delay in performance. If the person subjected to execution fails to perform other obligations within the time limit specified in the judgment, ruling or other legal documents, he shall pay a penalty for delay in performance.
[lawyer's opinion]: I. This case should be a civil case. When the lawyer accepted the entrustment of the case, the criminal case of the case in the public security organ had not been revoked. The background of the criminal case was that ye qianmeng was arrested on January 26, 2014. On March 4, 2014, the procuratorate was arrested on suspicion of embezzling funds. On May 4, 2014, the public security organ transferred the case for prosecution. After examination, the procuratorate returned the case to the public security organ for supplementary investigation. The public security organ requests to withdraw the prosecution during the supplementary investigation, and the procuratorate agrees. On September 2, 2014, the public security organ changed the compulsory measures for ye qianmeng to obtain bail pending trial and released him. On September 2, 2015, the compulsory measures for ye qianmeng to obtain bail pending trial were removed due to the expiration of the time limit for obtaining bail pending trial. Wang sunlong was always on bail due to physical reasons, and then the compulsory measures were removed due to the expiration of the time limit for obtaining bail pending trial. The pending situation of the case at that time required the lawyer to first judge whether the defendant in the case constituted a crime, and whether the defendant constituted a crime or not determined the lawyer's different agency ideas. Upon examination, the two defendants have dual identities in the plaintiff company, namely, the manager appointed by the company to be responsible for sales and the contractor of the workshops under the company. If considering from the identity of the defendant's sales manager, the defendant used part of the proceeds from the sale of the company's products to pay his personal debts, it should be suspected of a criminal offence. However, according to the contents of the contract agreement signed by both the plaintiff and the defendant and the supplementary agreement of Liaoning Shenghua and wire workshop for withdrawal and liquidation of accounts receivable signed after the completion of the contract, it should be clear that the creditor's right and debt relationship between the second defendant and the plaintiff based on the contract agreement should be a civil case. After clarifying the contents of the case, the lawyer applies to the public security organ for withdrawing the case. According to Article 25 of the provisions on handling economic crime cases by public security organs issued by the Supreme People's Procuratorate and the Ministry of public security, in the process of investigation, if the public security organ finds any of the following circumstances, it shall cancel the case in a timely manner: (1) within 12 months from the date of lifting the compulsory measures against the suspect, It still cannot be transferred for examination and prosecution or other treatment according to law. After many negotiations with the public security organ, the public security organ made a decision to cancel the case. Subsequently, the lawyer filed a civil lawsuit in this case.
2、 Grasp the main evidence of the case and prove the facts of the case. During the trial, the defendant raised different opinions on whether there was a contract relationship between the two parties, the subject of the case, the amount of arrears, etc. In this case, there is a long time span, a lot of evidence and confusion, and the name of the subject has been changed many times, but the main evidence is the contract agreement, which can prove that the two parties have a contract relationship; The signing subjects of the supplementary agreement between Liaoning Shenghua and wire Workshop on withdrawal and liquidation of accounts receivable are the plaintiff and the defendant of the case, which proves that the defendant has actually recognized the plaintiff's subject identity and can prove that the subject of the case is correct; The audit report issued by the relevant accounting firm entrusted by the public security organ can prove the amount of arrears of the case because the defendant did not raise any objection at that time. This requires lawyers to be able to grasp the main evidence, clear the context of the case, make correct judgments and prove the facts of the case.
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