synonymtrustee(Trustee) generally refers to the trustee
This term is provided by the "Rule of Law Encyclopedia" project leading group office of China Law Society.
An entrustment contract, also known as an entrustment contract, refers to a contract whereby one party entrusts another party to handle affairs and the other party promises to do so.In an entrustment contract, if another party is entrusted to handle affairs, it is the principal;The person who promises to handle affairs for the other party is the trustee or the trustee.
Chinese name
Consignee
Origin
Civil Law Course Book I
Also called
trustee
Include
Engaging in civil and commercial activities or litigation
（1） Provisions of the Civil Code of the People's Republic of China
Article 922 The agent shall handle the entrusted affair in accordance with the instructions of the principal.If it is necessary to change the instructions of the trustor, it shall be approved by the trustor;If it is difficult to contact the principal due to an emergency, the agent shall properly handle the entrusted affair, but shall report the situation to the principal in a timely manner afterwards.
Article 923 The agent shall personally handle the entrusted affair.With the consent of the principal, the agent may delegate.If the sub delegation is approved or ratified, the principal may directly instruct the sub entrusted third party in respect of the entrusted affair, and the agent shall only be responsible for the selection of the third party and its instructions to the third party.If the sub entrustment is not approved or ratified, the agent shall be liable for the acts of the sub entrusted third party;However, in case of emergency, the agent needs to entrust a third person in order to protect the interests of the principal.
Article 924 The agent shall report on the handling of the entrusted affair as required by the principal.When the agency contract terminates, the agent shall report the results of the entrusted affair.
Main obligations
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（1） Obligation to handle the entrusted affairs according to the instructions of the client
In the entrustment contract, the basic obligation of the trustee is to handle the entrusted affairs according to the instructions of the trustee (Article 922 of the Civil Code).The trustee's handling of entrusted affairs according to the instructions of the trustee has the following meanings:
First of all, when the client has instructions, it should follow the instructions of the client as far as possible to handle the entrusted affairs;
Secondly, when the situation is urgent, the trustee may change the instructions of the principal and properly handle the entrusted affairs;
Finally, the trustee has the reporting obligation after changing the instruction.When changing the instructions of the trustor, if the trustee is unable to contact the trustor, it shall timely report the change to the trustor.If the trustee's negligence in reporting causes losses to the trustor, the trustee shall be liable for compensation.
（2） Obligation to handle entrusted affairs personally
The first sentence of Article 923 of the Civil Code stipulates that the trustee shall personally handle the entrusted affairs.The reason why the trustee is required to handle the entrusted affairs in person is to prevent the trustee from losing the trust of the trustor and damaging the interests of the trustor.If the client agrees to sub entrust, there is certainly no need to prohibit it by law.If an emergency occurs and it is difficult to get in touch with the principal, the agent may, as a last resort, delegate.
Sub entrustment, also known as re entrustment, refers to the act that the trustee, with the consent of the trustor, transfers part or all of the affairs entrusted by the trustor to a third person, and the entrustment contract relationship directly occurs between the trustor and the third person.The trustee is responsible for selecting the third person.In the delegation relationship, the entrusted third person is called the secondary trustee.The content of the sub entrustment may be the same as that of the original entrustment.The sub entrustment includes the following two situations: first, the sub entrustment is approved or ratified by the trustor.For the sub entrustment made by the trustee, if the trustor agrees or confirms, the trustee can directly instruct the sub entrusted third person, the sub trustee, to delegate the entrusted affairs, and the sub trustee is directly responsible to the trustor for the entrusted affairs. The rights and obligations arising from the entrustment relationship naturally arise between the trustor and the sub entrusted third person.The trustor shall pay remuneration to the trustee, issue instructions, prepay expenses and compensate for losses;The trustee should also diligently perform the obligations of the trustor in good faith.At the same time, the trustee can also issue instructions to the sub trustee.Since the appointment of the secondary trustee and the trustee's instructions to the secondary trustee have been agreed by the trustor, the trustee is only responsible for the appointment of the secondary trustee and its instructions to the secondary trustee.If the trustee causes losses to the principal due to careless selection or wrong instructions, the trustee shall be liable for compensation.Second, the sub entrustment is not approved or ratified by the trustor.If the entrustment of the trustee is not reported to the trustor or the trustor does not agree despite the notification, the third party of the entrustment shall be regarded as the performance assistant of the trustee, and the behavior of the third party of the entrustment in handling the affairs shall be regarded as the trustee's own behavior.Therefore, if the act of a third person handling the affairs of a sub delegation without consent causes losses to the principal, it shall be deemed as losses caused by the act of the agent.The agent shall be liable for the acts of the third party who has delegated without consent or ratification.
Any delegation made by the trustee shall generally be approved or ratified by the trustee.Without the consent or ratification of the trustor, the acts of the entrusted third party shall be deemed as the acts of the trustee, and the trustee shall be responsible for the acts of the third party.However, in an emergency, a sub delegation made by the agent for the benefit of the principal shall be regarded as a sub delegation agreed by the principal, and the agent shall only be responsible for its selection and instructions to the sub agent.
In a paid entrustment contract, the trustee shall perform the duty of care of a good administrator. If the trustee lacks such care, he is at fault.The trustee shall be liable for the damages suffered by the trustor.In a gratuitous commission contract, the trustee is only liable for the losses caused to the principal by his intentional or gross negligence.The trustee has a certain scope of authority when handling entrusted affairs.When the trustee handles the affairs beyond the authority, if it causes losses to the principal, it shall be liable for damages to the principal regardless of whether the trustee is at fault or not.
In the entrustment contract relationship, there is sometimes more than one trustee.If the trustor entrusts two or more trustees to jointly handle the entrusted affairs, if one or more of the trustees violates the trustee's obligations and causes losses to the trustor, the trustor may claim compensation from all the trustees or any of them, that is, if there are several trustees, they shall be jointly and severally liable.However, if one or more of the agents' acts without consultation with other agents damage the interests of the principal, the faultless agent may exercise the right of recourse against the agent who performed the acts after assuming joint and several liabilities.The agent who is jointly and severally liable must be the person entrusted by the principal to jointly handle the entrusted affair.If the trustor entrusts different trustees to handle different affairs, each trustee shall be responsible to the trustor for its own affairs, and there is no joint and several liability.
（3） Reporting obligations
The agent shall, at the request of the principal, report on the handling of the entrusted affair at any time or regularly.At the end of the entrusted affair or the entrustment contract, the agent shall report the whole process and results of the entrusted affair to the client, and submit necessary supporting documents, such as various accounts, income and expenditure calculations, etc. (Article 924 of the Civil Code).
（4） Obligation to transfer property
The property obtained by the trustee for handling the entrusted affair shall be transferred to the trustor (Article 927 of the Civil Code).These properties include money, goods and their interests, rights, etc.Whether it is obtained in the name of the principal or in the name of the agent itself, whether it is obtained by the sub principal or directly by the agent itself when handling the entrusted affairs, the agent shall return it to the principal.The right of the trustor to request the trustee to deliver the property may be transferred.
common problem
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（1） The identity certification materials of the entrusted person and the person telling the case on behalf that the party concerned should submit for prosecution or private prosecution
The litigants can entrust their agents to complete the litigation.Therefore, if a lawsuit is entrusted, the identity certification materials of the agent shall be submitted at the same time to prove the identity and entrustment of the agent.There is also a special identity person in the criminal private prosecution case, that is, telling on behalf of others.A person who tells on behalf of the victim and sues in the name of the victim when the victim cannot tell in person.When telling on behalf of the victim, the private prosecutor (party) is still the victim, and the status of the person telling on behalf of the victim in the proceedings is similar to the legal representative of the victim, representing the victim in the prosecution.On behalf of the tellers, they can still entrust lawyers and other professionals with professional ability to act as agents ad litem.If a person brings a private prosecution on behalf of the teller, he shall provide the identity certification materials of the person acting as the teller to prove his identity and relationship with the victim, and show that he meets the conditions for acting as the teller.
Specifically, in accordance with relevant laws, judicial interpretations and the second paragraph of this article, if an agent entrusts another person to act on his behalf in litigation, the agent's identification documents include the following:
1. Power of attorney signed or sealed by the trustor.The power of attorney must specify the entrusted items and authority.The agent ad litem must have the special authorization of the client to admit, abandon or change the claim, settle the dispute, file a counterclaim or appeal on behalf of the client.
2. If the client is a lawyer, he shall submit his lawyer's practice license and the certification materials of the law firm.
3. If the client is a grass-roots legal service worker (in a civil administrative case), it shall submit the legal service worker's practice certificate, the letter of introduction issued by the grass-roots legal service, and the certification materials that one of the parties is located in the jurisdiction.According to the Reply of the Ministry of Justice on the Civil Economic and Administrative Litigation Cases in which the grass root legal service workers cannot represent any party who is not in the jurisdiction, and the provisions of Item 4 of Article 24 of the Detailed Rules for the Work of Legal Service in Towns and Towns, the party who is in the jurisdiction is the grass root legal service workers who represent civil, economicOne of the conditions that administrative cases should meet.Grass roots legal service workers cannot represent the civil, economic and administrative litigation cases in which neither party is in the jurisdiction.
4. The close relatives of the parties concerned shall submit their identity documents and evidentiary materials proving that they are close relatives of the client.If the household registration certificate can prove the close relatives, the household registration certificate shall be provided. If the household registration certificate cannot prove, the villagers' committee, the residents' committee or the public security police station can apply for the issuance of evidence materials.
5. If the entrusted person is a staff member of the party concerned, he/she shall submit his/her identity card and the certification materials proving that he/she has a legal labor and personnel relationship with the party concerned.
6. Citizens recommended by the community or unit where the party concerned is located shall submit their identity cards, recommendation materials, and certification materials that the party concerned belongs to the community or unit.
7. Citizens recommended by relevant social organizations shall submit identity documents and certification materials that meet the conditions specified in Article 87 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China.Including: social organizations are non-profit legal person organizations registered or exempted from registration according to law;The principal is a member of the social organization, or the domicile of one party is located in the activity area of the social organization;Agency affairs belong to the business scope specified in the articles of association of the social organization;The recommended citizen is the person in charge of the social organization or the staff member who has legal labor and personnel relations with the social organization.In addition, patent agents can act as litigation agents in patent dispute cases upon the recommendation of the All China Patent Agents Association.
According to the provisions of the Procedural Law and judicial interpretation, the power of attorney sent or entrusted by citizens of the People's Republic of China living abroad from abroad, or the power of attorney sent by foreigners living outside the territory of the People's Republic of China to Chinese lawyers and Chinese citizens, should be notarized and authenticated in accordance with relevant regulations before being recognized.
If a private prosecution case is told on behalf, the identity certification materials of the person telling it on behalf are as follows: first, the identity materials of the person telling it on behalf, such as the copy of his/her ID card or the copy of his/her household registration certificate.The second is the certification materials that prove that the person acting as the teller is the legal representative or close relative of the victim.
Relevant laws: Article 6 of the Opinions on the People's Court's Implementation of the Reform of the Registration System
Related cases
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Case name: If the lessee fails to pay the rent to the lessor as agreed, the lessee constitutes a fundamental breach of contract, and the lessor or its authorized trustee's recovery of the leased property does not constitute an infringement on the lessee
（1） Case gist
A finance lease contract is a contract whereby the lessor purchases the lease item from the seller, provides it to the lessee for use, and the lessee pays the rent according to the lessee's choice of the seller and the lease item.The lessor and the lessee may agree on the ownership of the leased property after the expiration of the lease term, but the leased property shall belong to the lessor before the expiration of the lease term.The lessee fails to pay the rent to the lessor as agreed, which makes the purpose of signing a financial lease contract between the lessor and the lessee impossible to achieve, and the lessee constitutes a fundamental breach of contract;If the lessee still fails to pay the rent within a reasonable period after being urged to do so, the lessor may demand payment of all the rent, or may terminate the contract to take back the lease item.The action of the lessor or its authorized trustee to take back the leased property does not constitute an infringement on the lessee, and the claim of the lessee for infringement losses claimed by the lessor or its authorized trustee should not be supported according to law.
（2） Case Details
The plaintiffs Kong and Xu claimed that they signed a Sales Guarantee Agreement with the defendants Jining X Company and Jinan X Company on December 31, 2013, which stipulated that Kong, the plaintiff, purchased a Volvo excavator (model: EC55BPRO, factory number: 56611) from Jinan X Company, and the commodity price was 355000 yuan.The plaintiff shall pay RMB53250 to Jinan X Company before taking delivery of the goods. The actual payment is RMB44000, and the difference is RMB9250. The defendant shall guarantee to borrow money from Jinan X Company, with a monthly interest rate of 1% and a period of 6 months. The method and amount of repayment shall be notified by the defendant separately;The Plaintiff is guaranteed by the Defendant to lend (finance) CNY301750 to WoX for a period of 36 months;The ownership of goods under this agreement belongs to Jinan X Company before the plaintiff has delivered all the price to Jinan X Company or paid off all the mortgage loans (borrowings).
The defendant Jining X Company argued that if the plaintiff failed to make payment to Jinan X Company, mortgage financing institution or other fund lenders on time, the defendant must assume the responsibility of advance payment to Jinan X Company.The defendant's advance payment for this reason is deemed as the plaintiff's fundamental breach of contract, and it has the right to take back the sold goods and dispose of them separately, and can recover losses from the plaintiff at the same time;If the plaintiff fails to pay on time, Jinan X Company or the defendant has the right to control the machine by means of GPS forced shutdown, dismantling the computer version, etc.The losses caused to the machine itself, the plaintiff and the third party shall be borne by the plaintiff.
The court found out after hearing that, in view of Kong's consent, according to the plaintiff's choice, he purchased leased equipment from a designated supplier and leased the equipment to the plaintiff. Kong, the plaintiff, also agreed to lease the equipment to Vox. Kong, the plaintiff, witnessed the signing of the Financial Leasing Agreement with Vox on January 2, 2014,The agreement stipulates that the lessee confirms and agrees that the lessor is not the manufacturer or supplier of the leased equipment;The lessor and the lessee agree that the lessor is the sole owner of the leased equipment, and the lessee has no objection to this, and waives all rights to defend the ownership of the leased equipment;During the lease period, the lessee shall not sublease the leased equipment to any third person or hand over the leased equipment to any third person for use without the prior written approval of the lessor.Under this Agreement, if the lessee has any of the following circumstances, it is a breach of contract and shall be liable for breach of contract:...... (6) The lessee fails to pay any rent or any amount due on time:...... In the event of any of the above violations, the lessor can take one or more of the following remedies:...... (2)Take back the leased equipment immediately and decide on specific disposal measures without prior notice to the lessee;(3) Declare the early expiration of this Agreement, and require the lessee to pay the rent due and payable under this Agreement and all rents and other payables that have not yet matured within the lease term as specified in Article 2At the same time, it is agreed that the rent of each phase is 10019.24 yuan, a total of 36 phases, and the lease period is 36 months.After the above agreement was signed, the plaintiff Kong, Jinan X Company and Wo X Company all performed the agreement as agreed.However, the plaintiff failed to pay WoX from February 2016 until December 2016.The defendant towed the vehicle away on March 15, 2016 based on the authorization of Vox.Later, under the coordination of Qufu Public Security Bureau and the court, the defendant delivered the excavator involved in the case to the academy police station of Qufu Public Security Bureau on May 5, 2017, and then the police station delivered the excavation to the plaintiff Xu.The plaintiffs Kong and Xu thought that the defendant should pay compensation for the loss during the period when his vehicle was towed away and detained, and appealed to this court, requesting: (1) to order the defendant to compensate for the loss of 260160 yuan;(2) The litigation fees and assessment fees of this case shall be borne by the defendant.
（3） Judgment result
The People's Court of Rencheng District, Jining City, Shandong Province made a civil judgment (2017) Lu 0811 Min Chu No. 9778 on March 30, 2018: rejected the claims of the plaintiffs Kong and Xu.
After the judgment was pronounced, the parties did not appeal, and the judgment has become legally effective.
（4） Judgment reasons
The effective judgment of the court held that the Sales Guarantee Agreement signed by the plaintiff Kong with the defendant Jining X Company and Jinan X Company and the Financial Lease Agreement signed by the plaintiff Kong with Wo X Company were all the true intentions of the parties, did not violate the prohibitive provisions of laws and regulations, and were valid agreements, which should be fully and strictly performed by all parties.The plaintiff, Kong, has formed a financial leasing relationship with WoX;The plaintiff should pay the installment (rent) to WoX on time as agreed, and it failed to pay the installment (rent) from February to December 2016 as agreed, which made the purpose of the financial leasing contract signed between WoX and the plaintiff impossible to achieve, and constituted a fundamental breach of contract;The defendant was entrusted by Wo X Company to take back the leased equipment. Wo X Company showed its true intention and desire to terminate the Financial Leasing Agreement signed with the plaintiff and take back the leased equipment by its own behavior. Therefore, the defendant, based on the authorization of Wo X Company to take back and occupy the leased equipment, does not constitute an infringement on the original lawsuit.The Court does not support the plaintiff's claim to the defendant for the loss during his possession according to law.
（5） Case analysis
1. Concept of finance lease contract.A finance lease contract is a contract whereby the lessor purchases the lease item from the seller, provides it to the lessee for use, and the lessee pays the rent according to the lessee's choice of the seller and the lease item.The lessor and the lessee may agree on the ownership of the leased property after the expiration of the lease term, but the leased property shall belong to the lessor before the expiration of the lease term.
2. Formation of financial leasing contract relationship.The Sales Guarantee Agreement signed by the plaintiff Kong with the defendant Jining X Company and Jinan X Company on December 31, 2013, and the Financial Leasing Agreement signed with WoX Company witnessed by the plaintiff Kong on January 2, 2014, are all true intentions of the parties and do not violate the prohibitive provisions of laws and regulations. The above agreements are legal and effective,All parties shall fully and strictly perform.
3. The plaintiff failed to pay the rent as agreed, which constituted a fundamental breach of contract.The plaintiff violated the Sales Guarantee Agreement signed with the defendant Jining X Company and Jinan X Company, and the Financial Lease Agreement signed with Wo X Company, and failed to pay rent to the lessor for 10 periods as agreed, which made the purpose of signing the financial lease contract between the lessor and the plaintiff impossible to achieve, constituting a fundamental breach of contract;It is not improper for the lessor to terminate the Financial Leasing Agreement signed with the plaintiff and take back the leased property based on the contract and legal provisions.
4. The defendant's recovery of the leased property based on the lessor's authorization does not constitute an infringement on the plaintiff.
