[introduction of the lawyer in this case]
Zhang Xinhui, senior partner of Liaoning Tongfang law firm. Lawyer Zhang Xinhui has long provided perennial legal advisory services for well-known real estate development companies, banks, state-owned enterprises and listed companies; He is good at litigation cases of banks, companies and commercial enterprises, and has appeared in the Supreme People's court, Liaoning Provincial Higher People's court and other courts to host cases.
Lawyer Zhang Xinhui is currently a member of the Liaoning Provincial Committee of the Chinese people's Political Consultative Conference / member of the proposal review committee, deputy director of the human resources, environment and Legal Affairs Committee of Liaoning Jiusan Society, director of the finance and Taxation Professional Committee of Liaoning Province, director of the finance and insurance professional Committee of Shenyang Lawyers Association, director of Liaoning Lawyers Association, executive director of Shenyang Lawyers Association, and arbitration member of Shenyang arbitration committee.
Lawyer Zhang Xinhui has successively won the titles of "top ten legal aid lawyers in Shenyang", "excellent lawyers in Liaoning Province", "model of honest lawyers in Shenyang", "political and legal cadres and policemen satisfied by the people of Liaoning Province", "the first outstanding young lawyers of Liaoning Provincial Lawyers Association", etc.
[referee points]
1. Support requests for principal, interest, default interest and compound interest according to law;
2. Confirm that the bank has the mortgage right to the contracted management right of rural land;
3. Confirm the joint and several guarantors to bear the joint and several guarantee liability according to law;
As for the question of whether 80000 tons of rice is entitled to pledge, because there are many disputing parties and many cases are involved, a separate judgment will be made after the facts of the relevant cases are clarified.
[basic case]
(for the sake of simplicity, the lender is China Minsheng Bank Co., Ltd. Panjin branch (hereinafter referred to as "Minsheng Bank"), the borrower is Liaoning Wufeng Agricultural Technology Co., Ltd. (hereinafter referred to as "Wufeng technology company"), and the mortgagor is Zhenlai Wufeng Agricultural Technology Co., Ltd. (hereinafter referred to as "Zhenlai Wufeng company")
Minsheng Bank provided a loan of RMB 220 million to Wufeng technology company, and Wufeng technology company provided 80000 tons of rice as pledge guarantee to guarantee the loan; Zhenlai Wufeng company provided rural land contract management right as mortgage guarantee; Zhenlai Wufeng company, Heilongjiang Jiansanjiang agricultural reclamation Wufeng industry and Trade Co., Ltd., ma * *, Zhu * * and ma * * provided joint and several liability guarantees. Because the debtor failed to repay the aforesaid loan on time after the loan was due, Minsheng Bank filed a lawsuit to demand repayment of the principal and interest of the loan, confirmed that it had the priority right to receive repayment of the pledged property and the mortgaged property, and requested the relevant guarantors to assume joint and several guarantee liabilities.
However, industrial and Commercial Bank of China and Jinzhou bank also filed lawsuits against Wufeng science and Technology Co., Ltd. for financial loan and guarantee contract disputes, claiming that each of them had the right to pledge the 80000 tons of rice involved in the case. In the above-mentioned lawsuit, the Jinzhou directly under the Central Grain Reserve took part in the lawsuit as a third party, claiming that the ownership of the rice involved in the case belonged to the Jinzhou directly under the central grain reserve, and Wufeng science and technology company was entrusted to keep it on its behalf. Wufeng science and technology company took the grain under the central authority stored and kept on its behalf as pledge without authorization, which violated the mandatory provisions of the regulations on the administration of central grain reserve and also damaged the national interests, The pledge is invalid.
After investigation and trial by the court, the focus of the dispute in this case is whether Minsheng Bank has the priority to receive compensation for 80000 tons of rice and rural land contractual management rights.
The agency highlights of this case are:
1. For some cases with large disputes over facts, the court should try to make a judgment on some of the legal relationships that have been tried and found out, so as to protect the interests of the client;
2. Under the existing legal framework, by interpreting the relevant policy documents of the State Council, the court is requested to confirm the validity of the mortgage of the rural land contractual management right.
[judgment result]
1. Wufeng technology company shall repay the loan principal of RMB 220 million and corresponding interest, default interest and compound interest (as of October 13, 2015, the interest was RMB 2667998.89, and the default interest and compound interest were RMB 812350.55) of Minsheng Bank within 10 days from the effective date of this judgment. The interest, default interest and compound interest from October 14, 2015 to February 5, 2016 shall be calculated according to the interest rate standard agreed in the contract;
2. Minsheng Bank has the mortgage right to the rural land contract management right provided by Zhenlai Wufeng company, and has the mortgage right to the mortgaged property within the scope of the above-mentioned first credit limit, and has the priority right to be compensated for the mortgaged property within the scope of the above-mentioned first credit limit;
3. Zhenlai Wufeng company, Heilongjiang Jiansanjiang agricultural reclamation Wufeng industry and Trade Co., Ltd., ma * *, Zhu * * and ma * * shall bear joint and several liabilities for the first debt of Liaoning Wufeng agricultural science and Technology Co., Ltd;
4. The guarantor in the above two and three items has the right to recover from Wufeng technology company after assuming the warranty liability.
The case acceptance fee and preservation fee shall be jointly borne by Wufeng technology company, Zhenlai Wufeng company, Heilongjiang Jiansanjiang agricultural reclamation Wufeng industry and Trade Co., Ltd., ma * *, Zhu * * and ma * *.
[reasons for adjudication]
1. In this case, there is a big dispute over whether Minsheng Bank has the pledge right to 80000 tons of rice. It involves many cases such as several banks claiming the pledge right of the rice involved in the case and the third party claiming the ownership of the rice involved in the case by the Jinzhou directly under the central grain reserve. Waiting for the trial results of other cases will make it difficult to solve this case in a timely manner.
Objectively speaking, the borrower Wufeng Technology Co., Ltd. has entered the bankruptcy procedure, and the mortgagor Zhenlai Wufeng Co., Ltd. is about to go bankrupt. It applies to the court for a preliminary judgment on the loan and guarantee facts that have been found out. For the issues that are controversial and cannot be found out for the time being, it will be judged separately after the facts are found out, which is most conducive to protecting the interests of creditors. At the same time, it also reflects the timeliness of the court to resolve disputes and avoid the long trial cycle of the whole case.
The court held that "in view of the fact that some of the facts in this case have the above-mentioned problems that need to be further tried and confirmed, and the fact that this part of the facts is controversial and the trial cycle is too long, the facts involved in the first, third and fourth claims of China Minsheng Bank Panjin branch have been ascertained. In accordance with Article 153 of the Civil Procedure Law of the people's Republic of China "When a people's court hears a case, if some of the facts are clear, it may make a judgment on that part first" and make a corresponding judgment on the part with clear facts. "
2. The Court confirmed the validity of the mortgage of the rural land contractual management right, breaking through the relevant provisions of Article 37 of the security law, Article 133 of the property law, Article 52 of the interpretation of the security law, and Article 15 of the interpretation of the Supreme People's Court on the application of laws to the trial of cases involving rural land contractual disputes that the "rural land contractual management right" shall not be mortgaged. It is the judicial support for the State Council's mortgage financing policy on land contractual management rights. At the same time, it is also the embodiment of the court's reasonable and legal application of laws in combination with national policies in the new era and new policy environment.
The court held that "with regard to the issue that the Panjin branch of Minsheng Bank requires to enjoy the mortgage right of the rural land contractual management right provided by Zhenlai Wufeng company, and has the priority to receive compensation within the scope of the claim. The maximum mortgage contract signed by the Panjin branch of Minsheng Bank and Zhenlai Wufeng company also belongs to the true intention of both parties, and has gone through the mortgage registration and filing procedures, and obtained Certificate of mortgage registration and filing of rural land contractual management right. According to Article 203 of the property law of the people's Republic of China (hereinafter referred to as the property law), in order to guarantee the performance of the debt, if the debtor or a third party provides the guarantee property for the creditor's rights that will occur continuously within a certain period of time, if the debtor fails to perform the due debt or if the parties agree to realize the mortgage right, the mortgagee has the right to have priority to be paid for the guarantee property within the maximum amount of creditor's rights. Therefore, the request of Panjin branch of China Minsheng Bank that the mortgaged property provided by Zhenlai Wufeng company enjoy the priority of compensation within the scope of the request shall be supported. "
[relevant provisions]
Article 37 of the guarantee law of the people's Republic of China: the following properties shall not be mortgaged: (2) the right to the use of collectively owned land such as cultivated land, homestead, private plots of land and private hills, except as provided in Item (5) of Article 34 and paragraph (3) of Article 36 of this law;
Article 34 of the guarantee law of the people's Republic of China: the following properties can be mortgaged: (5) the land use right of barren hills, ditches, hills, beaches and other barren lands contracted by the mortgagor according to law and mortgaged with the consent of the employer;
Article 133 of the property law of the people's Republic of China, where rural land such as barren land is contracted through bidding, auction and public consultation, the contracted land management right may be transferred, invested, mortgaged or transferred in other ways in accordance with the rural land contract law and other laws and relevant provisions of the State Council.
Article 203 of the property law of the people's Republic of China: in order to guarantee the performance of the debt, if the debtor or a third party provides guarantee property for the creditor's rights that will occur continuously within a certain period of time, if the debtor fails to perform the due debt or the situation of realizing the mortgage right as agreed by the parties occurs, the mortgagee has the right to have priority in the repayment of the guarantee property within the limit of the maximum amount of creditor's rights.
Article 153 of the Civil Procedure Law of the people's Republic of China, if a part of the facts of a case tried by a people's court are already clear, the people's court may make a judgment on the part first.
[lawyer's opinion]
1. As for the facts of the case that have been found out, the court may apply to make a judgment on the facts that have been found out according to Article 153 of the Civil Procedure Law of the people's Republic of China. For issues that are controversial and cannot be ascertained for the time being, it is most beneficial to protect the interests of creditors to make another judgment after the facts are ascertained. At the same time, it also reflects the timeliness of the court to resolve disputes and avoid the long trial cycle of the whole case.
In this case, the parties at that time have no objection to the total amount of the creditor's rights. The court has found out some facts about the mortgage of the rural land contractual management right and the guarantor's guarantee responsibility. However, there is a big dispute over whether Minsheng Bank has the pledge right to the 80000 tons of rice involved in the case. Many banks involved claimed the pledge right of the rice involved in the case, and the third party's Jinzhou directly under the central grain reserve claimed the ownership of the rice involved in the case. Waiting for the results of other cases will lead to difficulties in timely settlement of this case. In the event that the borrower has entered the bankruptcy procedure and the mortgagor is about to go bankrupt, the agent applies to the court to make a judgment on the facts that have been found out, which protects the interests of the client to the maximum extent and strives for the time benefit for the client to clear the creditor's rights.
2. According to the current provisions, the mortgage of rural land contractual management rights is generally recognized as invalid. According to Article 37 of the security law, Article 133 of the property law, Article 52 of the interpretation of the security law, and Article 15 of the interpretation of the Supreme People's Court on the application of laws to the trial of cases involving rural land contract disputes, the rural land contract management right shall not be mortgaged. Therefore, in combination with the new policies of the State Council on the development of rural finance and the local laws and regulations of Heilongjiang Province, where the mortgage is located, which has been included in the pilot project of mortgage financing of land contractual management right, the lawyer expounds and interprets the effectiveness of the mortgage right. Finally, the court supported the claim for mortgage of land contractual management right according to law.
According to the opinions of the general office of the State Council on the development of financial services for "agriculture, rural areas and farmers" (GBF [2014] No. 17) and the opinions of the CPC Central Committee and the State Council on comprehensively deepening rural reform and accelerating agricultural modernization, we encourage and support the innovation of rural mortgage (pledge) guarantee, and allow the management right of contracted land to be mortgaged to financial institutions for financing. The notice of the general office of the China Banking Regulatory Commission on doing a good job in rural financial services in 2013 also stipulates that it supports the exploration of rural land contractual management rights in areas with clear legal relations. The Interim Measures of Heilongjiang Province on mortgage loan of rural land management right is a local regulation listed in the pilot project of mortgage of rural land contractual management right in Heilongjiang Province. The land contractual management right involved in this case is legally obtained by the mortgagor through signing the land contractual management right contract, and has obtained the consent of the employer and gone through the mortgage registration formalities. According to the above policies and regulations, the contracted management right of the rural land involved in the case belongs to the scope of the land contracted management right that can be mortgaged, and the mortgage is legal and effective.
The recommended reason for this case is that the first judgment on the part of finding out the facts in this case is the practice of Article 153 of the Civil Procedure Law of the people's Republic of China. Through the interpretation of the policies and local regulations of the State Council and the China Banking Regulatory Commission, this case breaks through the restrictions on the mortgage of rural land contractual management rights in the security law and the property law. Before the mortgagor went bankrupt, it helped the bank to clear the main collateral (rural land contractual management right), which greatly promoted the clearing efficiency and reduced the loss of financial assets of the bank.