[introduction of the lawyer in this case] Hu Guanglei, partner of Liaoning Tongfang law firm and propaganda member of the Party committee. During his practice, he represented hundreds of litigation cases and handled hundreds of non litigation legal affairs, and accumulated rich practical experience. Especially in civil and commercial, economic, labor and other litigation and non litigation legal affairs. In the process of practicing, he is rigorous in work and has a strong sense of responsibility. He can provide efficient and high-quality legal services for customers.
[referee points]
The comprehensive credit contract, the maximum right pledge contract, the maximum guarantee contract and the bank acceptance bill acceptance agreement signed by the plaintiff and the defendant are the true intentions of the parties, do not violate the mandatory provisions of laws and regulations, and are legal and effective. After the plaintiff advances the bill money to the defendant Shiming company according to the contract, the defendant Shiming company shall repay the advance money to the plaintiff in a timely manner according to the contract. Now the defendant Shiming company fails to repay the advance money to the plaintiff within the time limit, which is a breach of contract and shall bear the liability for breach of contract as agreed in the contract. The plaintiff's claim that the defendant Shiming company repay the outstanding loan principal, the penalty interest agreed in the contract and the case acceptance fee of this case conforms to the contract and the legal provisions, and this court supports it. The plaintiff requests to confirm that it has the right to discount, auction or sell the 30 million shares of Chaoyang Bank Co., Ltd. held by the defendant Shiming company, and has the priority to receive compensation for the proceeds, In accordance with the agreement of the maximum right pledge contract between the two parties, the amount of expansion not exceeding the agreed balance of 45 million yuan has been registered for equity pledge. The plaintiff requires the defendants Furui company, penglian company and Lin Xiaole to assume joint and several liability for the payment of the plaintiff's first, second and fifth claims. The claims comply with the provisions of the relevant maximum guarantee contract and do not exceed the scope of the guarantee. Since the guarantors and creditors have not agreed on the guarantee share, they shall be deemed as joint and several guarantees. The plaintiff may require the debtor to perform the debt according to law, Any Guarantor may also be required to bear all the guarantee responsibilities, and the court shall support it.
[basic case]
On November 13, 2013, the plaintiff and the defendant Lingyuan Shiming Glass Co., Ltd. signed the comprehensive Award
Letter contract, the contract stipulates that the plaintiff shall provide credit for the defendant Lingyuan Shiming Glass Co., Ltd., and the credit line
Used for bank acceptance and bill acceptance. On the same day, the plaintiff and the defendant Lingyuan Shiming Glass Co., Ltd. signed the "most
High value rights pledge contract, which stipulates that the defendant Lingyuan Shiming Glass Co., Ltd. shall use its shares of Chaoyang bank
It is formed by pledging 30 million shares of the Co., Ltd. to the bank acceptance bills continuously provided by the plaintiff
Provide pledge guarantee for liabilities. On the same day, the plaintiff and the defendants Guangdong Furui Industrial Group Co., Ltd. and Guangdong penglian
Supply chain Co., Ltd. and Lin Xiaole respectively signed the maximum guarantee contract, which agreed to be provided by the above defendants
Joint and several liability guarantee. On November 21, 2013, the plaintiff and Lingyuan Shiming Glass Co., Ltd. signed the bank acceptance bill exchange agreement, which agreed that Party A applied for acceptance of nine bills in total, with a total face value of 9 million yuan. Party a signed
50% of the face value of the acceptance bill shall be deposited into the deposit in the account designated by Party B. Maturity date of acceptance bill, B
Party B will charge penalty interest at the daily interest rate of 0.05% based on the overdue days and the amount of payment in transit. After the contract was signed, the plaintiff issued nine bills according to the contract, with a total face value of 90 million yuan, and the maturity date of the bill was May 21, 2014. On the same day, the deposit of 45 million yuan was deposited into the agreed deposit account. The maturity date of the accepted bill has not yet expired, but the defendant Lingyuan Shiming Glass Co., Ltd. has clearly indicated to the plaintiff that it lacks the ability to repay, so it requires the defendant Lingyuan Shiming Glass Co., Ltd. to immediately perform the repayment responsibility. It also claims to confirm that it has the right to discount, auction or sell the 30 million shares of Chaoyang Bank Co., Ltd. It holds, and has the priority to be compensated for the proceeds. In addition, the defendants Guangdong Furui Industrial Group Co., Ltd., Guangdong penglian supply chain Co., Ltd. and Lin Xiaole provided joint and several liability guarantee for the above debts. Therefore, the plaintiff requests the above defendants to bear joint and several liability for repayment.
[judgment result]
1、 The defendant Lingyuan Shiming Glass Co., Ltd. shall, within ten days from the effective date of this judgment, pay the plaintiff Harbin Bank Co., Ltd. Shenyang branch the loan principal of RMB 44305679.35 under the bank acceptance agreement with the No. of 2013 ycz No. 25-10-1 of Shenyang branch
2、 The defendant Lingyuan Shiming Glass Co., Ltd. shall, within ten days from the effective date of this judgment, pay the plaintiff Harbin Bank Co., Ltd. Shenyang branch the overdue penalty interest from May 21, 2014 to the loan payment date (based on the loan principal of 44305679.35 yuan, calculated at the daily interest rate of 0.05); If the debtor fails to perform the obligation to pay money within the period specified in this judgment, the debtor shall pay double the debt interest during the period of delayed performance in accordance with Article 253 of the Civil Procedure Law of the people's Republic of China.
3、 The Shenyang Branch of the plaintiff Harbin Bank Co., Ltd. has the priority right of compensation for the 30 million shares of Chaoyang Bank Co., Ltd. held by the defendant Lingyuan Shiming Glass Co., Ltd. and pledged to the plaintiff within the scope of the payment obligations of the defendant Lingyuan Shiming Glass Co., Ltd. determined in this judgment. The defendants Guangdong Furui Industrial Group Co., Ltd., Guangdong penglian supply chain Co., Ltd Lin Xiaole shall be jointly and severally liable for the payment obligations of the defendant Lingyuan Shiming Glass Co., Ltd. determined in this judgment. After undertaking the guarantee liability, the guarantor has the right to recover from the debtor Lingyuan Shiming Glass Co., Ltd. or require other guarantors in this case to pay off their share of the actual repayment; After the surety of a joint and several suretyship assumes the suretyship liability, the part that cannot be recovered from the debtor shall be shared by the joint and several sureties according to the proportion agreed internally; If there is no agreement, it shall be shared equally.
[reasons for adjudication]
On November 13, 2013, the plaintiff and the defendant Shiming company signed the comprehensive credit contract with contract No.: Shenyang Branch 2013 YSZ No. 25-10. The contract agreed that the plaintiff would provide credit to Shiming company, and the credit line was used for bank acceptance. On the same day, the plaintiff and Shiming company signed the maximum right pledge contract (Contract No. 2013 qgzz No. 25-10) of Shenyang Branch, which agreed that Shiming company pledged 30 million shares of Chaoyang Bank Stock Co., Ltd. held by Shiming company to provide pledge guarantee for the liabilities formed by the bank acceptance bills continuously provided by the plaintiff. On the same day, the plaintiff also signed the maximum guarantee contract with the defendants Furui company, penglian company and Lin Xiaole respectively, which agreed that the above defendants would provide joint and several liability guarantee. On November 21, 2013, the plaintiff signed the bank acceptance bill acceptance agreement with Shiming company numbered as: Shenyang Branch 2013 ycz No. 25-10-1, which agreed that Shiming company applied for acceptance of nine bills with a face value of 9000 yuan, Shiming company shall deposit 50% of the face value of the issued acceptance bill into the account designated by the plaintiff. On the maturity date of the acceptance bill, the plaintiff will charge the penalty interest at the daily interest rate of 0.05% according to the overdue days and the overdue payment amount. After the contract was signed, the plaintiff issued nine bills according to the contract, with a total face value of 90 million yuan, and the maturity date of the bill was May 21, 2014. On the same day, the deposit of 45 million yuan was deposited into the agreed deposit account. Now, although the maturity date of the accepted bill has not yet expired, the defendant Shiming company has clearly indicated to the plaintiff that it lacks the repayment ability. Therefore, the plaintiff has reason to require the defendant Shiming company to immediately perform the repayment responsibility according to the contract law and article 27.8 of the comprehensive investment contract.
[relevant provisions]
Article 60 of the contract law of the people's Republic of China reads: "[strict performance and good faith] the parties shall fully perform their obligations as agreed."
Article 107 of the contract law of the people's Republic of China: "[liability for breach of contract] if a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses."
Article 207 of the contract law of the people's Republic of China reads: "[overdue interest] if the borrower fails to repay the loan within the agreed time limit, it shall pay overdue interest in accordance with the agreement or the relevant provisions of the state."
Article 170 of the property law of the people's Republic of China: "if the debtor fails to perform the due debts or the situation of realizing the security right as agreed by the parties occurs, the security owner shall have the right of priority to be compensated for the security property according to law, unless otherwise provided by law."
Article 173 of the property law of the people's Republic of China: "the guarantee scope of the security right includes the principal creditor's right and its interest, liquidated damages, damages, expenses for keeping the security property and realizing the security right. If the parties agree otherwise, the agreement shall prevail."
Article 176 of the property law of the people's Republic of China: "If the secured creditor's right is guaranteed by both the property and the person, the creditor shall realize the creditor's right according to the agreement if the debtor fails to perform the due obligation or the parties agree to realize the real right for security; if there is no agreement or the agreement is not clear, and the debtor provides the property security, the creditor shall realize the creditor's right first with respect to the property security; if the third party provides the property security, the creditor may realize the creditor's right with respect to the property security, and The guarantor may be required to bear the guarantee liability. After the third party providing the guarantee assumes the guarantee liability, it has the right to recover from the debtor. "
Article 223 of the property law of the people's Republic of China: "the following rights that the debtor or a third party has the right to dispose of may be pledged: (1) bills of exchange, cheques and promissory notes; (2) bonds and savings certificates; (3) warehouse receipts and bills of lading; (4) transferable fund shares and equity; (5) transferable property rights in intellectual property rights such as the exclusive right to use registered trademarks, patents and copyrights; (6) accounts receivable; (7) Other property rights that may be pledged according to laws and administrative regulations. "
Article 226 of the property law of the people's Republic of China: "Where fund units or equity are pledged, the parties concerned shall conclude a written contract. Where fund units or equity registered with a securities registration and settlement institution are pledged, the pledge right shall be established when the securities registration and settlement institution handles the pledge registration; where other equity is pledged, the pledge right shall be established when the administrative department for Industry and Commerce handles the pledge registration. After the fund units or equity are pledged, they shall not be transferred, except with the consent of the pledgor and the pledgee through negotiation. The pledge shall not be transferred The proceeds from the transfer of the fund units and equity by the pledgor shall be paid off in advance or deposited with the pledgee. "
Article 12 of the guarantee law of the people's Republic of China: "If there are two or more guarantors for the same debt, the guarantors shall bear the suretyship liability according to the suretyship share agreed in the suretyship contract. If there is no agreement on the suretyship share, the guarantors shall bear joint and several liability. The creditor may require any one of the guarantors to bear all the suretyship liability, and the guarantors shall have the obligation to guarantee the realization of all the creditor's rights. The guarantors who have undertaken the suretyship liability shall have the right to recover from the debtor or require them to bear joint and several Any other guarantor shall pay off its share. "
Article 14 of the guarantee law of the people's Republic of China: "the guarantor and the creditor may conclude a guarantee contract for a single main contract, or may agree to conclude a guarantee contract for a loan contract or a commodity transaction contract that occurs continuously within a certain period within the limit of the maximum amount of creditor's rights."
Article 18 of the guarantee law of the people's Republic of China: "where the parties agree in the guarantee contract that the guarantor and the debtor shall bear joint and several liability for the debt, it is a joint and several liability guarantee. If the debtor of the joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period specified in the main contract, the creditor may require the debtor to perform the debt, or may require the guarantor to bear the guarantee liability within the scope of its guarantee."
[lawyer's opinion]
On the surface, the case is not complicated, but it has become a major case because of the huge amount of money involved. The amount of the plaintiff's lawsuit is as high as 45 million yuan, and there are many subjects involved, including the principal debtor, the guarantor and the priority right to receive compensation for the pledged equity. Therefore, there are many issues and details to be considered in the process of preparing for filing. If the plaintiff is careless, it will cause incalculable adverse consequences to the parties if he writes a wrong number, omits a party or a claim. In addition, since the repayment date of the principal creditor's right has not been reached when the case is filed, it is necessary to prepare relevant certificates with the debtor that the debtor can not repay the large amount when it is due. Otherwise, the filing court will not file the case. Therefore, in the whole process of case preparation, it is necessary for the attorney to be careful, meticulous, unremitting, and cross check before filing the case.
Sometimes, although the case is simple, due to the large amount of the subject matter and the large number of details involved, the pressure that lawyers face and bear in the process of representing the case is enormous and unimaginable. At this time, the lawyers' ability to withstand pressure and complete their work carefully under great pressure are tested. In the process of acting for the case, the lawyer carefully completed the whole agency work of the case, which was praised by the parties.