People's Procuratorate of Wuhe County

written suggestion from prosecutorial organizations

  V. People's Procuratorate Violation of Supervision [2020]34032200001 number

The court tried Mr. Feng and Mr. Yang in the People's Court of Wuhe County according to law , Gong, Yang, Anhui * * * Co., Ltd. Private lending disputes (2015) Wu Min Er Chu Zi No. 00968 The trial activities of the case of civil mediation statement were reviewed, This case present Reviewed and closed.

It is found that, two thousand and fifteen December 14, Feng Moumou, a resident of Chengguan Town, Wuhe County, filed a lawsuit to the People's Court of Wuhe County, requesting the court to order Yang Moumou and Gong so-and-so , Yang, Anhui * * * Co., Ltd. (a private enterprise) repaid the principal of the restitution claim of 951600 yuan. In order to confirm his claim, Feng submitted four IOUs to the court, which are: due to business needs, the borrower is Yang and Yang, who borrowed three hundred thousand yuan today. May 20, 2014; Due to business needs, the borrower Yang and Gong borrowed 30000 yuan from Feng so-and-so , May 29, 2014; Due to business needs, we borrowed three hundred thousand yuan from Mr. Feng, the borrowers Mr. Yang and Mr. Yang, on August 3, 2014; We have borrowed from Feng Moumou three hundred and twenty-one thousand six hundred yuan only. The borrowers are Yang Moumou and Gong so-and-so , Yang.

Yang in the IOU Gong so-and-so It is a husband and wife relationship, and Yang is their common son. Anhui * * * Co., Ltd two thousand and eight It is a private enterprise established in March 2003, mainly engaged in the construction and installation of various scaffolds such as steel pipe racks and bamboo racks. Its legal representative is Gong so-and-so 。

After the case was filed by Wuhe Court, there was no material to show that the defendant was served with a copy of the indictment, a notice of response and a subpoena. On January 18, 2016, the Wuhe Court presided over the mediation in accordance with the summary procedure. At that time, the defendant only participated in the mediation, and the two parties reached the following mediation agreement through consultation: 1. The defendant Yang and Gong so-and-so Anhui * * * Co., Ltd. repaid the plaintiff Feng's loan principal of 1014600 yuan and interest in three installments, 300000 yuan for the first two installments, and the balance was paid off before December 30, 2016; 2. 3. If the defendant fails to repay on time, the plaintiff has the right to apply to the court for compulsory execution. After the mediation agreement is reached, Mr. Yang Replace Gong so-and-so Sign the mediation record. After the mediation statement is made, Mr. Yang And replace Gong so-and-so Anhui * * * Co., Ltd. signed on the receipt of the mediation statement.

The Court believes that five People's Court of He County（ two thousand and fifteen ）Wumin Erchu Zi Di 00968 number The civil mediation statement violated the law in the trial procedure.

（1） Illegal service procedure

The first paragraph of Article 125 of the Civil Procedure Law of the People's Republic of China stipulates: "The people's court shall send a copy of the indictment to the defendant within five days after filing the case...". In this case, after the Wuhe Court filed the case, there was no material to show that the service procedure had been performed to the defendant.

（2） Illegal mediation procedure

The second paragraph of Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning Civil Mediation of People's Courts stipulates that "all parties shall be present at the same time during mediation". The so-called "all parties shall be present at the same time" means that all parties of the plaintiff and defendant shall be present during the mediation, unless there is a written agent entrusted, none of them can be absent. Five parties should participate in the mediation of this case, namely, the plaintiff Feng and the defendant Yang Gong so-and-so , Yang Mouhe Anhui * * * * Co., Ltd., but only two people actually participated in the mediation, Mr. Feng and Mr. Yang The other three defendants were unable to appear in court because they did not receive the court summons, nor did they have a written power of attorney to entrust Mr. Yang to act as an agent for mediation. The court of first instance presided over the mediation in the absence of the parties, which violated the mediation procedures prescribed by law. In addition, according to Item 39 of the Several Provisions of the Supreme People's Court on the Application of Ordinary Procedure to the Trial of Economic Dispute Cases of First Instance: "After mediation, if the parties reach a mediation agreement, they shall sign and seal the mediation agreement." so-and-so If he did not participate in the mediation, he could not sign the mediation agreement so-and-so ”It was Yang who signed on behalf of the mediation record without obtaining the agency right, which also violated the legal provisions.

（3） The mediation statement signing procedure is illegal

Article 133 of the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the People's Republic of China stipulates that: "The mediation statement shall be delivered directly to the parties themselves, and service by lien is not applicable. If the parties themselves cannot sign for any reason, it can be signed by the designated receiver". According to this article, the mediation statement made in this case shall be delivered directly to Gong so-and-so I and the legal representative of Anhui * * * Co., Ltd., or Gong so-and-so And the agent designated by the legal representative of Anhui * * * Co., Ltd. But there is no material to show Gong so-and-so And the legal representative of Anhui * * * Co., Ltd. appointed Yang as the receiver, and the court of first instance asked Yang to sign the mediation statement on his behalf, which was illegal in the signing procedure.

To sum up, the People's Court of Wuhe County (2015) Wu Min Er Chu Zi No. 00968 The civil mediation statement violated the legal provisions in the trial procedure. In accordance with the provisions of the third paragraph of Article 208 of the Civil Procedure Law of the People's Republic of China, we hereby put forward a procuratorial proposal that your court should strictly abide by the legal provisions on service, mediation and receipt procedures when hearing mediation cases in the future, and promote substantive justice with procedural legality.

Please give a written reply to the Court within one month after receiving the procuratorial proposal.

Sincerely

People's Court of Wuhe County

two thousand and twenty year six month twenty-eight day