(Cover article of Procuratorial Daily Minsheng Weekly on September 2)  

　　 It's all caused by "affiliation"  

The construction company lent its qualification illegally, but it didn't expect to incur tens of millions of debts. The company almost went bankrupt, and the legal representative was still in prison——

　　 The procurator of the Anhui Provincial Procuratorate listened carefully to the opinions of the person applying for supervision on the supervision matters.  

Due to illegal lending qualification, a construction and installation company (hereinafter referred to as Company A) in Chuzhou City, Anhui Province was involved in a loan dispute lawsuit, which not only led to the company's near bankruptcy, but also the original legal representative Zhong Ming was almost investigated for criminal responsibility.

The case was protested by the Anhui Provincial Procuratorate, and the company finally "solved the problem" from the loan dispute case, but the lesson was also very painful.

　　 Affiliated "recruited" debt  

In April 2012, three people, Jin Jianmin and Jin Jianguo, who wanted to bid for a project in Fengyang County Town, Chuzhou City, discussed the time and won the project in the name of time and with the qualification of company A, each of whom accounted for one third of the shares. After winning the bid, Jin Jianmin and Jin Jianguo transferred their shares to the time side and then withdrew from the partnership, but agreed to help the time side coordinate the funds, which were paid at a monthly interest rate of 2.1%.

In September 2012, Shi Fang signed an Internal Contracting Construction Contract with Party A, which agreed that Party A would contract the above project to the project contractor for construction. Later, the project department was set up to carry out construction, and Jin Jianmin was responsible for raising funds. From August 2012 to May 2014, the total principal borrowed from Jin Jianmin was 11.35 million yuan. Before October 2013 (the total loan was 8.5 million yuan), Shifang paid the interest on time, but after that, Shifang did not pay the interest or repay the principal.

In February 2016, Jin Jianmin filed a lawsuit with the court of Fengyang County, requiring Company A to repay the principal and interest of the loan together with the local party. Shortly afterwards, the court of Fengyang County issued a first instance judgment, affirming the loan relationship between the time side and Jin Jianmin and the amount of the loan principal of 11.35 million yuan, and judging that Company A and the time side jointly returned the loan principal of 11.35 million yuan and paid the corresponding interest to Jin Jianmin. Company A appeals against it.

　　 Facing bankruptcy risk  

In February 2017, Chuzhou Intermediate People's Court held after hearing that Company A failed to provide effective evidence to prove that Jin Jianmin had maliciously colluded with the local party to damage its interests, should be responsible for the behavior of its project department, rejected the appeal and upheld the original judgment. After the judgment of the second instance, Jin Jianmin applied to the court for compulsory execution. The court sealed the account of Company A and deducted more than 10 million yuan from the account of other projects under construction of the company. Subsequently, Company A's application for retrial to the Anhui Provincial High Court was rejected. The company still refused to accept it and applied to Chuzhou Procuratorate for supervision. After examination, Chuzhou Procuratorate believed that there was a mistake in the application of law in the court's second instance decision, and submitted to Anhui Provincial Procuratorate for protest.

At this time, Zhong Mingzheng, the legal representative of Company A, was criminally investigated for refusing to execute the verdict, and the company changed its legal representative.

Zhang Kede, deputy director of the Sixth Procuratorial Department of Anhui Provincial Procuratorate, learned when reviewing the case that Company A could not carry out its normal operation and was facing the risk of bankruptcy.

"Whether the original judgment of this case is correct not only concerns the life and death of Company A, but also whether its original legal representative, Zhong Ming, can be convicted and punished. Therefore, the handling of this case must be accurate," said Zhang Kede.

In the process of handling the case, on the one hand, the prosecutor went to the place where the case occurred to learn about the implementation of the case from the enforcement court, and on the other hand, he learned about the progress of handling the criminal case from the prosecutor in the case of Zhong Ming's suspected refusal to implement the verdict.

On the other hand, the procuratorate also presided over public hearings and expert argumentation meetings to communicate whether the original judgment was wrong, where it was wrong, and where the procuratorial organ protested. After that, Zhang Kede submitted the case to the joint meeting of prosecutors for full discussion, and finally believed that there was a mistake in the application of law in the civil judgment of second instance.

　　 Adoption of protest opinions  

On May 30, 2019, the Anhui Provincial Procuratorate filed a protest to the Anhui Provincial High Court. The reasons for the protest focus on whether Company A should bear the responsibility for repayment.

The Anhui Provincial People's Procuratorate believed that the time party was not an employee of Company A, it contracted the project by borrowing the company's qualifications, and borrowing money from Jin Jianmin was not an act of duty. When Fang borrowed money in his own name, the seal of the Project Department affixed later was his private seal. Company A was not aware of his borrowing, which did not constitute a joint borrowing. Jin Jianmin knew that the borrower was an individual of the current party and was affiliated with the current party before he lent the loan. When the current party was unable to repay the loan, he asked the current party to affix the seal of the Project Department on the loan slip with the intention of transferring the debt to Company A. Jin Jianmin did not meet the conditions of a bona fide third party in the apparent agency, and the borrowing behavior of the current party did not constitute an apparent agency.

After the Anhui Provincial Procuratorate filed a protest, the Anhui Provincial High Court also ruled to bring the case up for trial. On July 19, 2019, Fengyang County Court granted Zhong Ming a guarantor pending trial after learning that the procuratorial organ had lodged a protest against the civil judgment of the case.

On March 30, 2020, the Anhui Provincial High Court made a judgment, adopted the protest opinion of the procuratorial organ, corrected the wrong judgment in the original trial, and rejected Jin Jianmin's other claims.

Based on the above judgment of Anhui Provincial High Court, Fengyang County Procuratorate, which handled the case of Zhong Ming's refusal to execute the judgment, decided to withdraw the prosecution. On May 15, Fengyang County Court lifted the bail pending trial of Zhong Ming and ruled that the procuratorial organ should be allowed to withdraw the case. On June 5, Fengyang County Procuratorate made a decision not to prosecute on the grounds that Zhong Ming did not constitute a crime.

During this period, Company A applied to the court for execution reversal. The court of Fengyang County ruled that Jin Jianmin returned more than 10.75 million yuan and fruits to Company A.

　　 A construction and installation company in Chuzhou presented a banner to the Anhui Provincial Procuratorate.  

　　 Postscript  

　　 Three suggestions for reviewing the "affiliated" case  

"In the process of affiliated operation, the actual constructor will inevitably borrow money, buy building materials on credit, lease equipment, etc. Once the actual constructor fails to fulfill the payment obligation, the third person will often try to make the construction enterprise that lent the qualification bear the responsibility." Wei Shaomin, assistant prosecutor of the Sixth Procuratorate of Anhui Provincial Procuratorate, said that in judicial practice, Generally, the court will judge that construction enterprises bear responsibility. Some construction enterprises, especially private enterprises, are in trouble or even face bankruptcy because they are sentenced to bear huge debts.

Wei Shaomin said that, of course, the behavior of construction enterprises lending qualifications should be subject to administrative punishment, and should be solved by strengthening administrative supervision and other means. It should not be judged that they should bear civil liabilities that should not be borne by them because of the administrative illegality of their behavior.

The reporter learned that the project department will be established in the construction of the project, and the project department will organize the construction. For this reason, Zhang Kede put forward his own suggestions from the perspective of how the procuratorial organs review and judge.

First of all, it is necessary to check whether the behavior of the head of the project department belongs to job behavior. This should be judged from whether the person in charge of the project department has a labor relationship with the construction enterprise, such as whether a labor contract has been signed, whether wages have been paid, and whether social security has been paid.

Secondly, it is necessary to check whether the behavior of the person in charge of the project department and the operator constitutes agency by estoppel. This is judged by whether the third person (creditor) has reason to believe that the behavior of the person in charge of the project department can represent the construction enterprise and the behavior of the person in charge of the project department can represent the project department when signing the loan and other related contracts. If there is reason to believe that the third person is a bona fide third person; Otherwise, the third person will not be a bona fide third person, and the behavior of the person in charge of the project department, the operator and other actors will naturally not constitute apparent agency.

Third, we should pay attention to the examination of whether the construction enterprise is a joint actor. This should be judged from whether there is evidence that the construction enterprise and the head of the project department are the common contract subject when the transaction occurs. "However, in the case of borrowing qualification disputes, few construction enterprises can be identified as common subjects, and more are identified as agency by estoppel."

"After the procuratorial organ puts forward supervision opinions, it should pay attention to tracking the court trial, and fully elaborate the procuratorial organ's opinions by attending the retrial court, communicating with the judges, attending the trial committee and other ways to improve the supervision effect." Zhang Kede introduced.

It is understood that when the retrial of the protest case against the loan dispute opened, the procurators in court listened carefully to the court investigation and court debate, and further comprehensively mastered the case. When the Judicial Committee (Civil and Commercial Affairs Professional Committee) of Anhui Provincial High Court discussed the case, Li Weidong, Deputy Procurator General of Anhui Provincial Procuratorate, led the undertaking prosecutor to attend as a nonvoting delegate, and issued supplementary opinions based on the previous court trial and the report of the collegial panel, laying the foundation for the court to finally adopt the protest opinion.

(All parties involved in the case are pseudonyms)