Recently, the Supreme People's Procuratorate released the second batch of typical cases of procuratorial organs implementing the Civil Code. The head of the Sixth Procuratorate Office of the Supreme People's Procuratorate said that this batch of typical cases fully demonstrated the important role of civil procuratorial supervision in the implementation of the Civil Code, which is of great significance for improving the quality and efficiency of civil procuratorial supervision.

The person in charge said that three years after the promulgation and implementation of the Civil Code, the civil procuratorial department of the national procuratorial organ, with the important instructions of General Secretary Xi Jinping Opinions of the CPC Central Committee on Strengthening the Legal Supervision of Procuratorial Organs in the New Era In order to follow, we will continue to strengthen the supervision of civil effective judgments, continue to strengthen the supervision of civil execution, further deepen the supervision of civil trial activities, deepen the supervision of false litigation, and adhere to As the basic value pursuit, "handle every case well with high quality and efficiency", perform duties in accordance with the law in an integrated manner, comprehensively and actively, and earnestly safeguard social fairness and justice.

There are eleven typical cases in this batch, including civil and commercial cases, supervision of discretionary cases, protest against the donation contract dispute between Mr. Feng and Mr. Li, protest against the private loan dispute between Mr. Rui and Mr. Cui and Mr. Qu, protest against the loan contract dispute between a Dalian Airlines Micro Loan Co., Ltd. and Mr. Zhu, Mr. Hou and Mr. Cheng, and protest against the loan contract dispute between Mr. Chen, Mr. Chen Chen Mouqiang and Song Moukun, a logistics company in Shandong Province, an Internet of Things Technology Co., Ltd. protested the dispute over the responsibility of motor vehicle traffic accidents, Wang Moufu and an asset management company and other financial loan contract disputes, a sewage treatment plant and a street office in Chongqing protested the contract dispute, and Huang and Yu supported the divorce dispute lawsuit, Hong protested a dispute over a housing sales contract with an affordable housing development company, Li and Huang applied for enforcement supervision, and a real estate company protested a series of disputes with Lin and Li to eliminate obstruction.

The person in charge introduced that this batch of typical cases had distinctive civil procuratorial characteristics. From the content of the cases, the general principles of the Civil Code, property rights, contracts and other civil code chapters with relatively high application frequency of supervision practice were involved. From the perspective of specific legal issues, the evaluation of discretion, the application of the principle of public order and good customs, illegal lending of credit cards and other hot and difficult practical issues were involved, From the perspective of supervision type, it involves the whole process and all links of civil procuratorial work such as supervision of civil effective judgment, supervision of execution, support for prosecution, etc. From the perspective of supervision mode, it includes case handling practices such as case precision supervision, case type supervision, procuratorial reconciliation and extended participation in social governance. From the perspective of procuratorial performance, it covers digital procuratorial model application, investigation and verification, judicial assistance, etc.

The person in charge said that, in the next step, the civil procuratorial departments of procuratorial organs at all levels should take the opportunity to learn the second batch of typical cases of implementing the Civil Code, continue to do a good job in the precise supervision of civil procuratorial work, so that the quality, efficiency and effect of procuratorial work are organically unified with fairness and justice, and ensure the implementation of various rights and systems stipulated in the Civil Code, We will work hard to make the people feel fair and just in every judicial case.

Notice on Printing and Distributing Typical Cases of Implementing the Civil Code (the Second Batch)

The People's Procuratorates of all provinces, autonomous regions and municipalities directly under the Central Government, the PLA Military Procuratorate, and the Xinjiang Production and Construction Corps People's Procuratorate:

In order to fully implement Xi Jinping's thought of the rule of law, ensure the uniform and correct implementation of the Civil Code, and further guide procuratorial organs at all levels to handle civil procuratorial supervision cases with high quality and efficiency, the Supreme People's Procuratorate has compiled 11 typical cases of implementing the Civil Code (the second batch). Now it is printed and distributed to you for reference.

Supreme People's Procuratorate

December 19, 2023

Case 1

Civil and commercial cases supervision cases of discretionary power

Keywords

Regulate discretion Uniform judgment standards Case like supervision Procuratorial recommendations

[Similar case problems]

The Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code"), as a basic law that is fundamental, stable and long-term, provides a systematic legal basis for the unified application of laws in the field of civil and commercial trials. The uniform and correct implementation of the Civil Code is inseparable from the standardized exercise of the judges' discretion. In 2022, the Political and Legal Affairs Commission of the Beijing Municipal Committee of the Communist Party of China deployed the Beijing procuratorial organs to focus on the discretion of civil and commercial cases and carry out special supervision in key areas. In the special supervision, it was found that in some cases, the discretion was improperly exercised in the application of law, interpretation and reasoning, and the unification of judgment standards.

First, the exercise of discretion is inconsistent with the principle of law application and the spirit of legislation. The Civil Code systematically integrated nine civil laws and passed To adjust and improve the compilation methods such as "addition, deletion and modification", the accurate understanding of the conflict between the old and the new legal rules, the provision of filling in white space, and whether the Civil Code is retroactive when adjudicating have become important subjects for the unified and correct implementation of the Civil Code. Taking the guarantee system as an example, the Civil Code has greatly improved and developed the guarantee system on the basis of summarizing civil legislation and judicial practice. Among them, as for the question of "whether the main text of the judgment should specify that the guarantor has the right of recourse after assuming the guarantee responsibility", the judicial interpretation of the original Guarantee Law clearly stipulates that it should be specified, but the Interpretation of the Civil Code Guarantee System deleted this article based on the fact that it belongs to a clause that has been consensus in judicial practice, However, the internal legislative logic and spirit still tend to believe that this article should continue to be followed as a trial idea. In the special supervision, it was found that in some cases of private loan disputes and loan contract disputes, there was no unified standard for this problem, and the cases with no clear views were inconsistent with the theoretical views of the Supreme People's Court, and increased the litigation burden of the parties, which was not conducive to the governance of litigation sources.

Second, the interpretation of discretionary matters affecting the rights of the parties is insufficient. Legal documents should publicly quote and apply the legal provisions, clarify the reasons for the application of the law in combination with the facts of the case, fully discuss the legitimacy and rationality of the discretionary results, and improve the credibility and authority of judicial decisions. The liability for breach of contract is a high incidence area of the exercise of discretion, which is closely related to the legitimate rights and interests of the parties. The Civil Code has a separate section on the liability for breach of contract, and makes new provisions on issues such as the actual loss and the loss of obtainable benefits are subject to the foreseeable rules, the judicial termination when the non monetary debt cannot be performed, which requires judges to accurately apply, and fully explain the considerations of whether to adjust the liquidated damages. It was found in the special supervision that some cases were adjudicated The "Court believes" part only expresses "to be determined according to the principle of fairness and good faith", and does not explain the process of conclusion formation and calculation method, which is detrimental to the acceptability of the referee.

Third, the judgment criteria of the same type of cases are not unified. Similar handling of similar cases is an inevitable requirement to enhance judicial credibility. The Civil Code has solved the problem of unifying the legal basis in terms of form, content, ideology and other legislative aspects. However, due to differences in the application of laws, relevant fields still exist in judicial practice The problem of "different judgments in the same case". In case of "circular trade" cases, some courts adopt the standard of formal transaction determination and decide that the sales contract is valid and the buyer pays for the goods; Some courts adopted the substantive transaction determination standard, ruling that the sales contract was invalid and rejecting the buyer's claim for payment. Another example is the case of vacating houses after the rural housing sales contract is confirmed to be invalid. In the case that the houses involved in the lawsuit do not meet the conditions for demolition, some courts decide to vacate houses and determine the compensation standard by referring to the location compensation price of surrounding areas; Some courts held that the disputes between the two parties must be solved together after the introduction of the demolition compensation policy, and rejected the litigants' claims for vacating houses.

[Performance process of procuratorial organs]

Supervision opinions On April 10, 2023, the Beijing People's Procuratorate issued procuratorial recommendations to the Beijing Higher People's Court: first, further strengthen the judicial standardization of the exercise of discretion, promote the construction of a unified judicial standard mechanism, strengthen the research and guidance of similar cases, and establish an information sharing, communication and consultation mechanism for the exercise of discretion in similar types of civil and commercial cases. The second is to further strengthen the trial supervision and management, clarify the responsibilities of the trial subjects at all levels, strictly implement the collegial review system, improve the discussion rules and procedures of the judges' meeting, strengthen the supervision and management of the trial committee's exercise of discretion on difficult and complicated cases with large differences in the standards of discretion, and improve the performance appraisal index system, misjudged cases and accountability mechanism. The third is to focus on strengthening the interpretation and reasoning of discretion, actively respond to the judicial needs of the people, strengthen the demonstration of the methods, basis and factors of discretion in the judicial documents, and enhance the acceptability and recognition of the parties to the results of discretion. Fourth, strengthen power constraints, prevent and punish the abuse of discretion, continue to carry out honest judicial education, actively promote the construction of a clean government risk prevention and control mechanism, establish and improve the law enforcement fault accountability system, strengthen the implementation of the "three provisions", and conduct a comprehensive assessment of cases directly involved by judges suspected of duty crimes.

Monitoring results On June 19, 2023, the Beijing Higher People's Court replied that it had taken a series of rectification and implementation measures according to the procuratorial recommendations. First, actively promote the construction of the mechanism of unified judgment standards for civil and commercial cases, establish a working platform for unified judgment standards for civil cases in the courts of the whole city, give full play to the role of the judicial committee in studying and supervising major civil and commercial cases, give full play to the guiding role of reference cases in the unified judgment standards, and increase the power of upgrading jurisdiction, We will improve the mechanism for finding, researching and analyzing the problems of inconsistent application of laws. The second is to strengthen the restriction and supervision of the exercise of discretion in civil and commercial cases, strictly implement the reporting system of major sensitive cases, effectively play the role of case retrieval, strengthen the role of the judges' meeting as a platform for unified law application, trial supervision and management, and resolution of differences of opinion, and improve the collegial panel's review The working linkage mechanism between the professional judges' meeting and the judicial committee. Third, strengthen the assessment of case assessment, refine case assessment standards, vigorously carry out special assessment, and deepen the rigid application of case assessment results. Fourth, we should conscientiously carry out thematic education, actively promote the construction of a clean government risk prevention and control mechanism, pay close attention to the implementation of the "three regulations", and explore the establishment of a prevention and early warning mechanism.

Typical significance

（1） In handling cases, procuratorial organs should study and judge the law of the exercise of discretionary power in depth, promote the unification of judgment standards, and ensure the uniform and correct implementation of the Civil Code. The Civil Code is a basic civil substantive law, and is also the main basis for adjudication in civil proceedings. Each article of the Civil Code obtains the verdict through the combination of the judge's application, interpretation and specific cases in the trial. Due to the complexity of social life, the abstraction of the concepts of the relevant provisions of the Civil Code and other factors, the Civil Code inevitably leaves a certain space for the judges' discretion. In addition, there are differences in judges' professional ability, legal literacy, trial experience, life experience, etc., which lead to the non-uniformity of judgment standards in judicial practice and the long-term existence of different judgments in the same case, directly affecting judicial justice and the people's sense of judicial gain. The Opinions of the Central Committee of the Communist Party of China on Strengthening the Legal Supervision of Procuratorial Organs in the New Era clearly proposes to strengthen the supervision of the exercise of discretion in judicial work. The Beijing Municipal People's Procuratorate thoroughly implemented the central deployment requirements. At the beginning of the implementation of the Civil Code, it focused on the key areas of improper discretionary exercise of power in civil and commercial cases and organized special supervision. It found that In the case of "circular trade", the case of vacating the house after the confirmation of the invalidity of the rural housing sales contract, the standard of judgment in the case of the dispute over the liability of the liquidation obligor to damage the interests of creditors involving the starting time of the limitation of action is not uniform, and there are problems in the fact finding, evidence acceptance, law application, interpretation and reasoning when the judges exercise their discretion, It is an important judicial practice for procuratorial organs, as national legal supervision organs, to put forward procuratorial suggestions on similar cases to Beijing Higher People's Court from the perspective of discretion to ensure the unified and correct implementation of national laws.

（2） Procuratorial organs should pay attention to handling cases "Case supervision" and "case like supervision" work together to improve the overall effectiveness of civil procuratorial supervision. Case supervision is the most basic way of civil procuratorial supervision. Its obvious advantage is to achieve individual justice and safeguard the legitimate rights and interests of specific parties by supervising and correcting cases. However, from the perspective of the duties and missions of the procuratorial organs and the requirements of high-quality development of procuratorial work, civil procuratorial supervision should not stop at case supervision, but should be guided by breaking the weakness of law enforcement and implementation, strengthening the judicial supervision and restriction of law enforcement, strengthening the analysis of system concepts and laws, taking the initiative to link the characteristics of individual cases, timely finding frequent and common problems, and through case like supervision, Promote civil procuratorial supervision "from point to surface" to improve the overall efficiency. In the special supervision, the Beijing Municipal People's Procuratorate studied and formulated the case retrieval mechanism, defined the case retrieval as a necessary procedure for discretionary procuratorial supervision, strengthened the analysis and judgment of typical cases and the analysis and application of case data, and summarized and analyzed 36 typical cases based on the main situations of improper exercise of discretionary power, By strengthening the judicial standardization of discretion, strengthening trial supervision and management, preventing and punishing the abuse of discretion, the governance layer put forward systematic suggestions to the court. Through the combination of "case supervision" and "case like supervision", while trying to make people feel fair and just in cases, We will further promote the construction and improvement of laws to ensure their unified and correct implementation, and achieve the organic unity of political, legal and social effects.

Case II

Protest case of dispute over donation contract between Feng and Li

Keywords

Gift contract Invalid confirmation Conjugal property public policy

Basic Case

He (male) and Feng (female) are husband and wife. They have a son and a daughter. Their son is under age. Since August 2017, Mr. He has known Mr. Li (female), who is engaged in management work in foot baths, because he often consumes in foot baths, and then has an extramarital affair with Mr. Li. Mr. Li knows that Mr. He has a family and children. From August 2017 to September 2019, He made 14 transfers to Li through his bank card, totaling more than 200000 yuan; From August 2017 to November 2019, in order to maintain the relationship between the two, Mr. He transferred 278 transfers to Mr. Li via WeChat, including "520", "1314" and other special meanings, totaling more than 170000 yuan. From August 2017 to October 2019, Mr. Li transferred a total of more than 90000 yuan to Mr. He through WeChat, and paid more than 50000 yuan for foot massage on his behalf. In January 2020, Feng filed a lawsuit to the People's Court of Xuanhan County, Sichuan Province, on the ground that Mr. He's donation of Mr. Li's property infringed his property rights, requesting confirmation that Mr. He's donation of Mr. Li's property during the marriage relationship was invalid, and requesting Mr. Li to return the donated property and interest. The first instance judgment of Xuanhan County People's Court rejected Feng's claim. Feng refused to accept the judgment of first instance and appealed to Dazhou Intermediate People's Court. Dazhou Intermediate People's Court held that during the existence of the husband and wife relationship, Mr. He violated his duty of loyalty and transferred more than 370000 yuan to Mr. Li. His property disposition was not ratified by Mr. Feng, and the donation was invalid. 50% of the donation belongs to Mr. Feng, and Mr. He has no right to dispose. He donated 370000 yuan to Li, and after deduction of more than 140000 yuan transferred from Li to He, the balance was more than 230000 yuan. 50% of the more than 230000 yuan belongs to Mr. Feng, and Mr. Li should return it. The second instance decision of Dazhou Intermediate People's Court revoked the first instance decision of the case, and Li returned more than 110000 yuan to Feng and paid interest. Feng refused to accept the judgment of second instance, and his application for retrial to Sichuan Higher People's Court was rejected.

[Performance process of procuratorial organs]

Acceptance and review Feng refused to accept the judgment of second instance and applied to Dazhou People's Procuratorate for supervision. After examination, Dazhou People's Procuratorate believed that the act of donation in this case was invalid and all donated property should be returned, so it submitted to Sichuan People's Procuratorate for protest. The Sichuan Provincial People's Procuratorate further ascertained the facts of the case by accessing the original trial files and asking the parties concerned. Through searching and sorting out the judgments of relevant cases, it is found that for the issue of whether one spouse's donation is partially effective or completely invalid during the existence of the marital relationship, some regions such as Jiangsu Province and Beijing have issued relevant trial opinions, but Sichuan and other regions have not clearly stipulated such cases, and the judicial practice has different standards for handling such cases. The Sichuan Provincial Procuratorate communicated with the Sichuan Provincial Higher People's Court to understand the trial ideas of the court, and further clarified the necessity of the application of the law and supervision of the case based on the value measurement and judicial guidance of the case.

Supervision opinions The Sichuan Provincial People's Procuratorate, based on the facts and evidence identified after examination, believes that: First, the act of donation involved in the case is an invalid civil act, and its legal consequences should be the return of all property, and the partial return of the final judgment, which belongs to the true error of applying the law. Second, the final judgment partially returned the donated property and directly divided the joint property of husband and wife, which went beyond the litigants' claims. The third is that the final judgment change recognition can violate the gift behavior of good customs, which damages the property rights and interests of the non fault party of the husband and wife, and is inconsistent with the core socialist values of honesty and justice. On May 23, 2022, the Sichuan Provincial People's Procuratorate filed a protest to the Sichuan Provincial Higher People's Court.

Monitoring results The Sichuan Higher People's Court adopted the protest opinion of the procuratorial organ in the retrial, and made a civil judgment on October 31, 2022, changing the judgment according to law that Mr. Li returned more than 230000 yuan to Mr. Feng (that is, transferred more than 370000 yuan as gifts, deducted more than 140000 yuan from Mr. Li's advance) and paid interest.

Typical significance

（1） In handling the case, the procuratorial organ should comprehensively analyze and determine the effect of the act of donation by one spouse in combination with the provisions of the Marriage Law on the right to equal disposal of property, the subjective mentality of the actor, and the connotation of public order and good customs. At present, China's legislation does not clearly stipulate the effect of the act of a spouse donating property to a third party, and there are disputes in theory and practice, one of the reasons is that Difference in judgment of "public order and good customs". After the implementation of the Civil Code, the identification of "public order and good customs" has also taken a general approach. There is a large flexible interpretation space for some articles, which is reflected in the difficulty in accurately distinguishing different factors of legal acts. When they violate the public order and good customs, how will they affect the effectiveness of legal acts? Therefore, in judicial practice, gift acts are effective There are three kinds of judgments: partial validity and invalidity. The dispute over the donation of the common property of husband and wife to the third party should not be determined simply. It should be analyzed according to the specific case. In addition to considering "public order and good customs", it should also comprehensively investigate the subjective mentality of the donor and recipient. In this case, Mr. He donated the property of a third party, Mr. Li, especially the transfer of money with special meanings such as "520" and "1314", which obviously did not belong to the daily needs of Mr. He and Mr. Feng's family life, nor was it an act of consensus between husband and wife, so it did not comply with the provisions of Article 17 of the Marriage Law and the Judicial Interpretation (I) of the Marriage Law on the equal disposal of husband and wife's property. In this case, the purpose of the transfer and collection of money by Mr. He and Mr. Li is to maintain extramarital affairs. The extramarital affairs and transfer of money by the two people violate the legal rights of Mr. Feng as a spouse, which is not in good faith subjectively. Based on the above analysis, the donation is against public order and good customs and should be deemed invalid. Article 157 of the Civil Code clearly stipulates that property acquired based on invalid acts shall be returned. In this case, the procuratorial organ supervises the act of one of the spouses donating their common property to a third party without authorization, which infringes on the property rights and interests of one of the spouses, and requires the third party to return all the donated property, which not only protects the legitimate rights and interests of the innocent party in the marital relationship and the children in marriage, but also urges the procuratorial and judicial courts at the provincial level to reach a judicial consensus on such cases and uniformly clarify the standards for the application of the law.

（2） The procuratorial organ should accurately grasp the legislative spirit of the civil code, and establish a good family ethics through supervision and error correction guidance. In order to better promote the family virtues and reflect the core socialist values, Article 1043 of the Civil Code has added to the provisions of the Marriage Law that couples should be faithful to each other, respect each other, and maintain equal, harmonious and civilized marriage and family relations "The family should establish a good family style, carry forward family virtues, and attach importance to the construction of family civilization". The procuratorial organ should deeply understand the legislative purpose and spirit of the Civil Code, and pay attention to advocating the construction of good family ethics in law enforcement and case handling. In this case, Mr. Li accepted the donated property based on "extramarital affairs". If some of the donated funds are effective, it will open up a legal path for the husband and wife to transfer their common property by donating property to a third party, which is contrary to the value orientation of husband and wife's loyalty, and will damage the maintenance of marital relationship and marital property order. The procuratorial organ, through protest supervision, gives negative judgment to the third party's behavior of intervening in marriage and making profits from it, guides the society to form a correct view of marriage, money and family, and promotes the society to develop good family ethics.

Case 3

Rui Mouhao sues Cui Moufeng and Qu Moufeng

Civil Loan Dispute Protest Case

Keywords

Cash out of credit card Invalidation of contract Application of the Civil Code Digital prosecutorial

Basic Case

Cui and Qu are husband and wife. On June 17, 2021, Cui Moufeng borrowed money from Rui Mouhao. After Rui Mouhao swiped the card of 23000 yuan through the POS machine provided by Cui Moufeng, Cui Moufeng issued a debit note for Rui Mouhao, which stated that "Rui Mouhao borrowed twenty-three thousand yuan (23000 yuan) today, and the fund came from the credit card of China Construction Bank (4895 ××××× 1004), and returned it to the borrower before August 16, 2021: Cui Moufeng June 17, 2021". Later, Cui Moufeng repaid a total of 6600 yuan to Rui Mouhao, and the balance of 16400 yuan remained unpaid. Rui Mouhao sued Cui Moufeng and Qu Moufeng to the People's Court of Laizhou City. The court found that the private lending relationship between Rui and Cui was established, and the evidence submitted by Rui could prove the fact that Cui borrowed 23000 yuan from him and still owed 16400 yuan. Rui failed to prove that the loan was based on the common intention of the husband and wife or used for the husband and wife's common life, production and operation, and it was decided that Cui repaid the principal of Rui by 16400 yuan, Reject Rui's claim against Qu.

[Performance of procuratorial organs]

Acceptance and review The People's Procuratorate of Laizhou City, Shandong Province, found in the performance of its duties that the case of private lending disputes involved the situation of obtaining loans from financial institutions for re lending, and there was a definite error in the application of the law, so it accepted and reviewed it in accordance with its authority. The court of first instance identified the case as a private lending dispute and confirmed that the private lending relationship was established. The procuratorial organ found out the relevant legal basis strictly from the identification of the legal relationship of private lending, the special issues related to the use of credit cards, held discussions with the staff of banks and other financial institutions, and searched the judgments of the original court on the same type of cases, focusing on the following aspects to conduct a comprehensive review of the cases:

The first is to examine whether the source of private lending funds meets the regulatory requirements for self owned funds. According to the provisions of Articles 130, 140, 224 and 227 of the Payment and Settlement Measures printed and distributed by the People's Bank of China, credit cards refer to special carrier cards issued by commercial banks to individuals and units to purchase, consume and deposit cash with banks from special units, and have consumption credit. The credit card can only be used by the legal cardholder himself, and the cardholder shall not get cash to rent or lend the credit card. It can be seen from the relevant regulations on the use of credit cards that credit cards are characterized by consumer credit and have the functions of bank credit line and overdraft. The credit right of the cardholder is obtained based on the credit status of the cardholder, which is exclusive, and the funds within the credit line of the credit card belong to bank credit funds, not the cardholder's own funds. Therefore, cardholders cannot lend bank credit funds to others as their own funds.

Second, review whether the private lending contract is effective and whether the private lending relationship is established. The source of funds for private lending shall be the lender's own funds. In the private lending relationship between Rui and Cui, the cardholder Rui used The bank credit funds lent to Cui Moufeng by means of POS card swiping, rather than his own funds. Rui's behavior belongs to the situation of "obtaining loans from financial institutions for re lending" as stipulated in Article 13 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases, and also constitutes the Civil Code The first paragraph of Article 153 "The civil legal act violating the mandatory provisions of laws and administrative regulations is invalid", so the private lending contract between Rui and Cui is invalid and the private lending relationship is not established.

Third, it is necessary to review the supervision of this case. This case was found in the performance of duties and accepted for review on its own authority. The supervision standard of combining legality with necessity should be adhered to. The private lending behavior of the lender in this case, Rui Erhao, who borrowed the credit funds from the credit card and lent them to Cui Erfeng, not only increased the financing cost, damaged the interests of the card issuing bank, affected the financial credit environment, but also disrupted the credit order and the national financial management order. The court of first instance wrongly affirmed the legal relationship of the case The validity determination error of the private lending contract of "borrowing loans from financial institutions for lending" is a typical applicable law error. Initiating a retrial of such cases, strengthening the understanding of the invalidity of private lending contracts for borrowing loans from financial institutions, can also effectively curb a large number of potential illegal use of credit cards for borrowing credit funds; In the long run, it is conducive to regulating the financial order and the steady and healthy development of private lending.

Supervision opinions The People's Procuratorate of Laizhou City found that in the loan dispute cases due to cash out and lending of credit cards that were tried by the original court, several judgments found that the private loan contracts were invalid, which was diametrically opposite to the judgment results of this case, and there were different judgments in the same case. The procuratorial organ believed that the original judgment of the case was wrong in applying the law, and the court was inconsistent in applying the law to similar issues, and the behavior of the parties also hindered the order of financial management, so it filed a protest with the Yantai People's Procuratorate according to law. The Yantai People's Procuratorate lodged a protest to the Yantai Intermediate People's Court.

Monitoring results After the procuratorial organ protested, the Yantai Intermediate People's Court instructed the Laizhou People's Court to retry the case. The Laizhou People's Court made a retrial decision on February 28, 2023, believing that the procuratorial organ's reasons for protest were valid and should be adopted. The original trial found that the folk lending relationship in the case was wrong and should be corrected, The first item of the original judgment "Cui Moufeng repaid Rui Mouhao's loan principal of 16400 yuan" was revoked, and Cui Moufeng was judged to return Rui Mouhao 16400 yuan.

Extended work The Laizhou People's Procuratorate, by summing up the common features of private lending litigation in the field of illegal use of credit cards, constructed and applied the civil procuratorial supervision model of "private lending - credit card overdraft loan contract", handled four supervision cases in the form of retrial procuratorial suggestions, and the court ruled to retrial and change the judgment. In 2022, the Yantai People's Procuratorate will promote and apply the model to all districts and municipal courts, and discover 93 supervision clues, handle 24 supervision cases, and involve more than 2.76 million yuan. The formed "Supervision Model for Arbitrage of Credit Card Funds and Lending Other Human Cases", as the No. 5 big data legal supervision model of Shandong People's Procuratorate, will be promoted and applied throughout the province.

Typical significance

（1） The procuratorial organ should strengthen the examination of the validity of relevant contracts when handling the supervision cases of private lending disputes, and strengthen the supervision of the situation of obtaining loans from financial institutions for re lending. The overdraft function of the credit card determines that the domestic capital of the credit line cashed out by the cardholder is owned by the bank and cannot be lent as its own capital. At the same time as the implementation of the Civil Code, the Supreme People's Court revised the judicial interpretation of private lending to further emphasize that private lending should be lent with its own funds, reducing the impact of The standard for determining the invalidity of private lending contracts such as "borrowing loans from financial institutions for re lending", so the private lending contracts lent by the cardholder with the borrowed credit funds are invalid and are not protected by the Civil Code. When handling such cases, the procuratorial organ shall strictly examine whether the loaned funds are self owned funds. At the same time, the cardholder's behavior of obtaining credit funds to avoid cash withdrawal fees and gain benefits is a fraud against the card issuing bank, which violates the principle of good faith, and may affect their personal credit evaluation. Article 1029 of the Civil Code also clearly stipulates the credit evaluation of civil subjects. The supervision of such acts will help to strengthen personal credit awareness, prevent the occurrence of credit irregularities, and play a good role in legal supervision for the establishment of a good social credit environment and credit system.

（2） The procuratorial organs should use digital procuratorial work to supervise similar cases, strengthen communication with other organs, form joint forces in supervision, and jointly maintain the financial order in the credit field. With the widespread use of credit cards, the use of credit cards to obtain credit funds for lending has emerged in large numbers, resulting in a large number of private lending disputes. The procuratorial organ actively summarized the general characteristics of private credit card lending cases, constructed a legal supervision model and applied it, realized the extension from case handling to case like supervision, gave play to the big data penetration effect, unified the application of law, corrected the problem of different judgments in the same case, realized the promotion of legal supervision from point to surface, and maintained the Civil Code Standard authority and judicial justice. On the basis of case handling, the procuratorial organ actively extends its procuratorial functions, makes and issues supervision and procuratorial suggestions to the court on similar cases, urges the court to start self-examination and self correction of cases in relevant fields, starts retrial of cases that wrongly identify private lending relationships, and withdraws relevant documents published on the judgment document website; We made and issued procuratorial suggestions to banks, took the lead in convening a joint meeting to standardize the use of credit cards, and jointly established a long-term working mechanism to prevent and investigate the illegal use of credit cards with the financial supervision department and the public security organ, which effectively cracked down on the illegal use of credit cards to obtain credit funds for lending.

Case 4

Dalian Air Micro Loan Co., Ltd

With Zhu, Hou, Cheng, etc

Protest case of loan contract dispute

Keywords

Borrowed loan Actual user Entrusted agent Responsible subject

Basic Case

Zhu, Hou and Cheng are ordinary employees of Dalian Binbin Group Co., Ltd. (hereinafter referred to as Binbin Group). In 2014, a Binhai Group borrowed 105 million yuan from an aviation microfinance company in Dalian (hereinafter referred to as an aviation microfinance company) for business needs, including 25 million yuan of loans involved in this case. The loan involved in the case is a loan for agriculture, forestry, animal husbandry and fishery. In order to achieve the purpose of borrowing, a small aviation loan company proposed that the loan involved in the case must be a natural person as the borrower. A bank group instructed Zhu, Hou, and Cheng, employees of the company, to lend money to a small airline loan company in their own names and promised that the company would bear the responsibility for repayment. On May 8 and 9, 2014, Mr. Zhu, Mr. Hou and Mr. Cheng respectively signed a Loan Contract with an aviation small loan company, with a total loan amount of 25 million yuan. A shore group, a real estate development company, an investment group limited company were the guarantors, and a real estate development company provided mortgage guarantee.

When a bank group failed to repay the loan when it was due, an aviation small loan company sued Zhu, Hou and Cheng to the People's Court of Zhongshan District, Dalian City respectively. The People's Court of Zhongshan District, Dalian made a judgment, ordering Zhu, Hou and Cheng to repay the principal and interest of the loan; An aviation small loan company has the priority of repayment of the collateral; The guarantor, a Bin Group, a real estate development company and an investment group limited company, shall bear joint and several liability for repayment. After the case entered the execution procedure, three employees were enforced by the court because of the location of the public buildings involved in the case and the difficulty in auction disposal.

[Performance process of procuratorial organs]

Acceptance and review The Dalian Zhongshan District People's Procuratorate accepted the case according to the application of the party concerned. Dalian People's Procuratorate and Dalian Zhongshan District People's Procuratorate set up an integrated case handling team to carry out investigation and verification work around the dispute focus of "whether an aviation small loan company knows the entrustment relationship between employees and the group, and whether the actual borrower of the Loan Contract is an employee or the group". First of all, verify the whereabouts and use of the loan involved in the case by accessing the relevant bank transfer flow. The loan involved in the case was transferred out and remitted into the bank account of Sun Mingang, an outsider of the case, on the day when it was remitted into the account of the three employees. There was no other daily record between Sun Mingang and the three employees except for this amount, and there were frequent transactions with a shore group. Secondly, verify the signing of the loan contract by asking the parties to the case. The loan involved in the case is a loan for agriculture, forestry, animal husbandry and fishery, which is characterized by policy support loans. The business scope of a Binhai Group enterprise is not related to this. A small aviation loan company proposed that the loan involved in the case must be a natural person as the borrower. The three employees then signed on the blank signature page in the Group Finance Department Office under the guidance of the staff of an aviation small loan company according to the instructions of a Binhai Group company, and were unaware of the specific contents of the contract and the amount of the loan. After the funds were transferred to the personal accounts of the three employees, the three employees remitted the funds to the account of Sun Mingang, an outsider of the case, according to the company's instructions.

Supervision opinions After full investigation and demonstration, the procuratorial organ believed that the borrowing behavior involved in the case was formed by consensus between a Binhai Group and an aviation small loan company to avoid financial regulatory policies. Zhu and three other employees were entrusted by a Binhai Group to borrow from an aviation small loan company. The actual borrower and user were both a Binhai Group. An aviation small loan company knew that the loan involved in the case was entrusted by a Binhai Group to its employees to handle in their personal name, and the legal provisions of the entrustment relationship should be applied to this case to determine that a Binhai Group should bear the responsibility for repayment. In March 2021, Dalian Zhongshan District People's Procuratorate filed a protest against the dispute over the loan contract between Zhu and an aviation small loan company with Dalian People's Procuratorate, which filed a protest to Dalian Intermediate People's Court according to law.

Monitoring results The Dalian Intermediate People's Court ruled for retrial and instructed the Dalian Zhongshan District People's Court to proceed with the trial. The People's Court of Zhongshan District, Dalian made a judgment that Zhu should still bear the responsibility of repayment. Zhu appealed to the Dalian Intermediate People's Court. In the second instance, an aviation small loan company submitted the Credit Investigation Report on Zhu's Application for a Loan of 10 Million Yuan to the court. The report stated that "Zhu is engaged in the sea cucumber breeding, processing and sales industry, with an annual operating income of about 30 million yuan and an annual profit of about 10 million yuan. At present, the business is in good condition", However, the company did not have the business qualification, business location, production and operation financial statements, post loan inspection log records and other evidence to prove the existence of Zhu's loan. The Dalian Intermediate People's Court made a retrial judgment, and based on the evidence on the case, combined with many factors such as the huge amount of loans made by an aviation small loan company, the ignorance of the borrower's credit status, the laissez faire and loss of control of the loaned funds, and the financial supervision of loans to special industries, it was determined that the loan involved in the case was a personal loan from an aviation small loan company entrusted by a bank group, An aviation small loan company clearly knew the fact that the borrower involved in the case was a Binhai Group, confirmed that the subject of repayment responsibility was a Binhai Group according to the legal provisions of the entrustment relationship, and ordered Zhu not to bear the repayment responsibility. In March 2023, the People's Procuratorate of Zhongshan District, Dalian submitted the two cases of dispute over Hou and Cheng's loan contract to the Dalian People's Procuratorate for protest. The Dalian People's Procuratorate protested according to law. In August 2023, the retrial of both cases changed the judgment that Hou and Cheng were not responsible for repayment.

Typical significance

（1） The procuratorial organ is handling In the case of "loan by name", the relevant provisions on the entrustment relationship should be accurately applied based on the facts of the case, and the responsible subject should be identified according to law. "Borrowed loan" refers to the act that the actual user signs a loan contract in the name of others to handle the loan procedures, and the loan is used by the actual user. There are differences in judicial practice. In handling such cases, the procuratorial organ should accurately identify the subject of responsibility based on the facts such as contract signing and performance. Generally speaking, the lender is a loan item based on the trust in the identity, qualification and credit ability of the nominal borrower. Based on the relativity of the contract and the autonomy of the will, the nominal borrower should be recognized as the subject of the contract and bear the responsibility for repayment. When lending funds, the lender shall clearly know that the borrower's loan is used by the actual user, and shall re examine whether the borrower knows that the nominal borrower is entrusted by the actual user to borrow money, and correctly distinguish the nominal borrower as "borrowing on behalf of the actual user" or "borrowing for the actual borrower" in combination with the lender's attribute, borrowing purpose, etc., and accurately apply the Civil Code Relevant provisions on the entrustment relationship shall identify the responsible subject. Referring to the spirit of the national court financial trial work conference, if a commercial bank, as a lender, knows the agency relationship between the actual user and the nominal borrower when signing a loan contract, the loan contract directly binds the lender and the actual borrower. As a small loan company, the lender in this case clearly knew the agency relationship between the trustee and the client when signing the contract. In order to avoid financial supervision and achieve the purpose of illegally granting policy support loans to actual users, it signed a loan contract with the employees of the company entrusted by the actual loan using company. All parties expressed the same intention to the real borrower, The contract involved in the case should directly bind the small loan company and the actual user, and the actual user should bear the responsibility for repayment.

（2） The procuratorial organ should pay attention to the use of integrated case handling mechanism, strengthen case investigation and verification, and effectively improve the quality and efficiency of supervision. In the case of "loan by name", the fact of contract signing is of great significance to determine whether the lender knows that the nominal borrower is the agent of the actual user of the loan. In this case, the municipal and district procuratorates set up an integrated case handling team to comprehensively sort out the facts of the case around the focus of the dispute, carry out investigation and verification, accurately analyze and judge the legal application issues involved in the case, analyze the legal relationship between the lender and the borrower company and its employees, and improve the quality and efficiency of the case handling. Employees of the company borrowed money from a small loan company in their own name, and their own failure to fulfill the corresponding duty of care should be subject to negative qualitative evaluation. However, when the lender was to avoid financial supervision and knew that the company's employees were entrusted by the company to borrow money, it allowed workers to get rid of huge debts through legal supervision, which also reflected the spirit of equal protection of the civil code, and achieved political and legal effects The organic unity of social effects.

Case V

Chen Moushan, Chen Mouxiao, Chen Mouqiang

With Song Moukun and Shandong Logistics Co., Ltd

An Internet of Things Technology Co., Ltd

Protest case of liability dispute of motor vehicle traffic accident

Keywords

Traffic accident liability dispute Traffic safety planning Digital prosecutorial Social governance

Basic Case

Xu Mouqin is the wife of Chen Moushan and the mother of Chen Mouxiao and Chen Mouqiang. On April 12, 2021, Song Moukun drove a heavy semi trailer tractor (the registered owner was a logistics company in Shandong, the actual owner was Ge Mou) and Xu Mouqin drove a two wheeled electric vehicle, which caused Xu Mouqin to die on the same day due to invalid rescue. The traffic police department determined that Song Moukun was mainly responsible for the accident and Xu Mouqin was secondary responsible. On September 8 of the same year, Chen Moushan, Chen Mouxiao and Chen Mou forcefully appealed to the People's Court of Junan County, Shandong Province, asking Song Moukun, a logistics limited company in Shandong (hereinafter referred to as a logistics company), an Internet of Things technology limited company (hereinafter referred to as a technology company) to compensate for their death compensation, funeral expenses All kinds of losses such as mental consolation money totaled 526854 yuan and bear legal costs.

The People's Court of Junan County held that Chen Moushan, Chen Mouxiao and Chen Mouqiang's request for compensation from a logistics company was unfounded and did not support it; Insured amount of the vehicle involved in the accident in a technology company For the commercial third party insurance of 1 million yuan, because the compulsory traffic insurance part of the case has been settled, the part exceeding the compulsory traffic insurance shall be borne by a technology company for 70%. Therefore, it is judged that the remaining losses (death compensation, emotional consolation, funeral expenses, etc.) of Chen Moushan, Chen Xiaoxiao and Chen Mouqiang that exceed the compulsory traffic insurance amount to 749850.50 yuan, and a technology company will compensate 524895.35 yuan within the compensation limit of the commercial third-party insurance.

After the judgment came into effect, Chen Moushan, Chen Mouxiao and Chen Mouqiang applied to the People's Court of Junan County for compulsory execution, but because a technology company had no property to enforce, the People's Court of Junan County ruled to terminate the execution. Chen Moushan, Chen Mouxiao and Chen Mouqiang applied to the People's Court of Junan County for retrial, requesting that the original judgment be annulled according to law. The Junan County People's Court did not make a ruling within the time limit.

[Performance process of procuratorial organs]

Acceptance and review Chen Moushan, Chen Mouxiao and Chen Mouqiang applied to the People's Procuratorate of Junan County, Shandong Province for supervision, claiming that when they learned that a technology company was on the verge of bankruptcy and was unable to implement the case, the People's Court of Junan County ruled to terminate the implementation, and the original trial equated traffic safety planning with commercial insurance errors. The Junan County People's Procuratorate, after accepting the examination according to law, submitted to the Linyi City People's Procuratorate for protest. The procuratorial organ focuses on the following issues by reviewing the file, obtaining the traffic safety planning sheet, and asking the parties: First, whether the retrial application of Chen Moushan, Chen Mouxiao, and Chen Mouqiang meets the acceptance conditions of the procuratorial organ. After the first instance judgment came into effect, Chen Moushan, Chen Mouxiao, and Chen Mouqiang did not appeal, because their claims for compensation were supported, and there was no need to appeal. Later, in the implementation process, the rights and interests of the Chinese party could not be realized. At this time, the appeal period had passed, and the application for retrial instead met the acceptance conditions. Second, whether the traffic safety coordination of the involved vehicles is equivalent to commercial third-party insurance. According to the traffic safety co-ordination sheet obtained comprehensively and the business license of a technology company, the business scope of a technology company is Internet of Things traffic safety co-ordination and other businesses, and no insurance business license has been obtained. The traffic safety co-ordination of the vehicles involved in the case is not a third-party commercial insurance. Third, who should bear the loss beyond compulsory traffic insurance. The motor vehicle traffic accident is a general tort, and the principle of fault liability applies. The owner of the accident should bear the tort liability according to the fault. However, in order to provide timely and basic protection for the victims of traffic accidents to a greater extent, the insurance system was established. Under the general background of the insurance system, the order of compensation determined in Article 1213 of the Civil Code is "compulsory motor vehicle insurance - commercial insurance - infringer", where the "infringer" includes the affiliated owner and the affiliated logistics company. As the agreement between the planning company and the participants, the rights and obligations of both parties shall be determined according to the contract.

Supervision opinions After a comprehensive review of the nature of the traffic safety coordination involved in the case and the application of the law, the Linyi People's Procuratorate believed that the basic fact that the effective judgment found that "the vehicle involved in the accident was insured by a technology company for commercial third party insurance with an insurance amount of 1 million yuan" lacked evidence to prove, and it was indeed wrong to apply Article 1213 of the Civil Code, On May 19, 2023, he lodged a protest to the Intermediate People's Court of Linyi City, Shandong Province.

Monitoring results On June 8, 2023, the Intermediate People's Court of Linyi City, Shandong Province ordered the People's Court of Junan County to retry. In the retrial, Chen Moushan, Chen Mouxiao and Chen Mouqiang requested that the actual owner Ge Mou participate in the lawsuit. The People's Court of Junan County, after hearing the case, adopted the protest opinion of the procuratorial organ, ruled to revoke the original judgment, and informed Chen Moushan, Chen Xiaoxiao, and Chen Mouqiang that they could sue separately.

Extended work At the same time of carrying out supervision over the results of effective judgments, the procuratorial organs are able to perform their duties according to law, and comprehensively use various ways to improve the quality and efficiency of supervision. First, strengthen the digital procuratorial thinking, build a model of "supervision of cases related to the management of motor vehicle safety overall planning business", collect more than 5000 pieces of data, involving 1161 operating trucks, 218 transportation enterprises, and 81 overall planning enterprises. After the promotion and application of the model, 13 case clues have been found and 2 supervision cases have been handled. The second is to gather the consensus of procuratorial and legal departments, hold a joint working meeting with the people's court, unify the judgment criteria of cases in the field of traffic safety coordination, and ensure the uniform and correct implementation of the Civil Code. Third, participate in social governance, formulate and issue procuratorial suggestions to Junan County Transportation Bureau, urge it to carry out special actions, resolve 13 risk clues, and promote industry management and source of complaint governance. Fourth, promote the transformation of achievements, form a special research report on social governance issues in the field of road traffic safety coordination and submit it to the municipal party committee and government, and guide the dynamic prevention and control with the "procuratorial special report".

Typical significance

（1） When handling the supervision case of traffic accident liability dispute, the procuratorial organ shall verify the legal relationship involved, reasonably determine the responsibilities of all parties, and ensure the uniform and correct implementation of the Civil Code. Clarifying the legal relationship and the principle of responsibility is the basis and key to accurately apply the Civil Code for legal supervision. When dealing with the liability disputes of motor vehicle traffic accidents, it is necessary to find out whether there are labor relations, affiliation relations, whether to purchase compulsory traffic insurance, commercial insurance and other issues, and then accurately apply the relevant provisions of the Civil Code to determine the compensation liability of each party. Specifically, in this case, there are three main views on the nature and legal application of the traffic safety pooling contract in judicial adjudication: first, the pooling contract is equal to a commercial insurance contract or an analog insurance contract, and the pooling company assumes responsibility within the scope of commercial third-party insurance; Second, the pooling contract is not a commercial insurance contract and should be handled as a general contract dispute; The third is that the pooling company violates the provisions of the Insurance Law and is an invalid contract. The responsibilities of both parties should be determined according to the fault principle. In this case, the procuratorial organ made it clear through handling the case that the traffic safety pooling contract is not an insurance contract, but an industry mutual aid measure. When a traffic accident occurs, the pooling person should not directly compensate the victim for the loss, but should determine the liability of the infringer according to the relevant provisions of the Civil Code on tort liability.

（2） While handling cases according to law, procuratorial organs should strengthen supervision through big data empowerment to achieve case supervision and promote social governance. The procuratorial organ carried out special research on the problems found in the handling of cases, such as the frequent occurrence of road traffic safety coordination cases, the imperfect supervision mechanism, and the inconsistent judgment scale of the court. Through the establishment of a digital supervision model, it enabled big data to find case clues in depth, increased case handling efforts, and gathered consensus between the procuratorate and the law. Through the preparation and issuance of procuratorial suggestions, we have studied and solved the difficulties and blockages of social governance, urged the administrative organs to strengthen supervision and management, prevented the occurrence of risk problems, realized the transformation from case supervision to case like supervision, and then to social governance, promoted the sound and healthy development of road traffic safety coordination business by procuratorial performance, improved the quality of legal supervision, and demonstrated the participation in the modernization construction of the city To help optimize the legal business environment.

Case 6

Wang Moufu and an asset management company

Case of procuratorial settlement of disputes over financial loan contracts

Keywords

Financial Loan Contract Mortgage scope Application of the Civil Code Prosecutorial reconciliation

Basic Case

In May 2014, a commercial company in Kunming (hereinafter referred to as a commercial company) signed the Working Capital Loan Contract with a rural credit cooperative business department in Kunming (hereinafter referred to as a rural credit cooperative), and a commercial company borrowed 15 million yuan from a rural credit cooperative. On the same day, a rural credit cooperative signed a Mortgage Contract with Wang Moufu, agreeing to use a house property in Kunming under Wang Moufu's name as the mortgage guarantee for the Working Capital Loan Contract, and went through the mortgage registration procedures. The mortgage registration certificate recorded "the amount of secured principal creditor's rights is 3.65 million yuan". In November 2016, a rural credit cooperative signed the Creditor's Rights Transfer Agreement with an asset management company, and an asset management company accepted the creditor's rights and subordinate rights according to law, becoming a new creditor. In January 2020, an asset management company filed a lawsuit to the Kunming Intermediate People's Court for a commercial company to repay the loan principal, interest, penalty interest, compound interest, etc. totaling 24 million yuan because a commercial company failed to fulfill its repayment obligation. Wang assumed the mortgage liability within the range of the value of the mortgaged property.

Kunming Intermediate People's Court held that a commercial company failed to repay the principal and interest of the loan in full on schedule, which constituted a breach of contract. Wang signed a Mortgage Contract with a rural credit union and handled mortgage registration. The mortgage has been established according to law, and the mortgage is transferred with the main creditor's rights. An asset management company has the right to discount Wang's collateral or auction The proceeds from the sale have priority in compensation. Wang Moufu objected to the judgment of first instance, considered that the contents of mortgage registration were inconsistent with the provisions of the Mortgage Contract, and the judgment of first instance based on the contents of the Mortgage Contract determined that the application of law to the scope of collateral security involved in the case was wrong, so he appealed to the Yunnan Higher People's Court. The Higher People's Court of Yunnan Province held that the matters recorded in Wang's warrant were not the agreement on the scope of mortgage guarantee involved in the case, and the agreement in the Mortgage Contract signed by Wang should be used as the judgment on the scope of mortgage guarantee involved in the case. The judgment of the first instance was not improper. The judgment rejected Wang's appeal and upheld the original judgment. Wang Moufu refused to accept the second instance decision and applied to the Yunnan Higher People's Court for retrial. The retrial court ruled to reject Wang Moufu's retrial application.

[Performance of procuratorial organs]

Acceptance and review Wang Moufu applied to the People's Procuratorate of Yunnan Province for supervision, claiming that he should bear the mortgage liability according to the matters recorded on the other warrants, and the People's Court found that the mortgage liability was wrong according to the mortgage contract. After accepting the case according to law, the procuratorial organ checked the case file, investigated and verified the real estate center's handling of other warrants on the spot, and fully understood the basic facts of the case and the background of its occurrence. Through investigation in Kunming Real Estate Center, Guandu District Real Estate Center and other places, it is found that the ownership certificate of other items involved in the case was handled in 2014, before the implementation of the Provisional Regulations on Real Estate Registration. At that time, the columns of the real estate register of Yunnan Province did not completely and clearly record the registration items, and the mortgage register did not set the columns of guarantee scope and collateral appraisal value. The parties can only fill in the appraisal value of the house at that time in the column of "the amount of the secured principal's claim", and some directly fill in 0. During the investigation, the Real Estate Center was also unable to issue the proof of the scope of mortgage guarantee of other warrants, and replied to the case handler that the scope of mortgage was subject to the court's judgment due to the system setting problem.

Prosecutorial reconciliation The procuratorial organ believes that the focus of the dispute in this case is whether the mortgage liability should be borne according to the content agreed in the Mortgage Contract or the content recorded in the certificate of other rights. After consulting the case file, investigating and verifying, and listening to the opinions of all parties, the procuratorial organ learned that both parties have the intention of reconciliation, but in terms of payment amount, there is a large gap between the psychological expectations of both parties. In this regard, the procuratorial organ broke the working mode of "handling cases on the basis of cases and handling cases mechanically", determined the working idea of "cooperation between the procuratorate and the law to avoid idle procedures", and from the perspective of equal protection of the legitimate rights and interests of both parties, decided to hold a public hearing of the case and invite the executive judge to participate together. At the hearing, in combination with the case evidence and the relevant provisions of the Civil Code, the parties were analyzed in detail about the litigation interests and risks, and proposed a settlement plan with a small gap, thus leading the interests of both parties to reach an agreement. With the joint efforts of the procuratorate and the court, both parties signed a settlement agreement at the hearing, and the enforcement judge organized the parties to reach an enforcement settlement according to the contents of the procuratorial settlement agreement. Finally, Wang withdrew his supervision application.

Typical significance

（1） When handling mortgage related disputes, the procuratorial organ should comprehensively review the security agreement between the parties, and make a comprehensive judgment on the facts of the case in combination with the mortgage registration. In this case, the real estate register is missing The column of "scope of guarantee" led the parties to fill in specific figures in this column when they went through mortgage registration, resulting in inconsistency between the amount of secured principal creditor's rights recorded in the mortgage registration and the scope of mortgage guarantee agreed in the mortgage contract. Article 61 of the original Judicial Interpretation of the Guarantee Law stipulates: "If the content recorded in the registration of the mortgaged property is inconsistent with the content agreed in the mortgage contract, the content recorded in the registration shall prevail." However, the lack of "guarantee scope" in the registration column of the real estate register is a common phenomenon. In judicial practice, most courts will support the scope of priority compensation according to the guarantee content agreed in the mortgage contract, while a few courts will determine the scope of priority compensation according to the registered content. Different recognition standards lead to significant changes in the scope of priority for the mortgagee to be repaid. The procuratorial organ should accurately understand the provisions of Article 133 of the Civil Code on civil legal acts, deeply explore the relationship between legal acts and the appearance of evidence, correct the flaws of the parties' declaration of will through interpretation of the law, and fundamentally resolve conflicts and disputes.

（2） Procuratorial organs should thoroughly practice the new era The "Maple Bridge Experience" guides the parties to properly resolve conflicts through legal interpretation and reasoning, and penetrates procuratorial reconciliation into the whole process of handling civil procuratorial supervision cases. The procuratorial organ should guide the parties to face the facts rationally, understand and respect the law, resolve disputes from the root, and settle disputes by thoroughly understanding the true demands of the parties. When conducting procuratorial reconciliation, the executive court can be invited to send personnel to witness, urge both parties to reach an implementation reconciliation agreement, and follow up and supervise the implementation, which can ensure the full implementation of the reconciliation agreement on the one hand, and equally protect the legitimate rights and interests of all civil subjects according to law on the other hand. In the handling of this case, the procuratorial organ, taking the introduction of the Civil Code as an opportunity, adhered to the concept of attaching equal importance to protest and appeal termination, and tried to build a diversified pattern of civil procuratorial supervision. Through the idea of prosecution and reconciliation, the procuratorial organ resolved disputes for many years through the coordination of interests, which not only alleviated the court's enforcement pressure, saved judicial resources, but also reduced the litigants' litigation burden, and effectively safeguarded the legitimate rights and interests of the litigants.

Case 7

A sewage treatment plant and a street office in Chongqing

Contract dispute protest case

Keywords

Civil agreement Policy changes rescission of a contract Good faith performance

Basic Case

In August 2005, a company signed an Investment Agreement with a sub district office (the original people's government of a town), stipulating that a company would invest 3 million yuan to build a sewage treatment station, and the sewage discharge standard would be implemented according to the Class I B standard (GB18918-2002). A sub district office would collect a sewage disposal fee from the polluter and pay a sewage fee to a company according to the unit price approved by the price department; It is also agreed that with the expansion of the town, if the sewage treatment station needs to be built again, a company will enjoy the priority of construction under the same conditions; In the course of operation, if the agreement cannot be performed due to force majeure or changes in national policies, both parties shall negotiate to terminate the contract. In July 2009, a company changed its name to a sewage treatment plant. In April 2015, the State Council issued the Notice of the State Council on Printing and Distributing the Action Plan for Water Pollution Prevention and Control, requiring urban sewage treatment facilities in relevant areas to fully meet the Class A discharge standard by the end of 2017. In December of the same year, the Chongqing Municipal People's Government issued a document clarifying the water pollutant discharge control indicators, strengthening urban domestic pollution control and other tasks and measures. In December 2016, the company outside the case built a new sewage treatment plant in the jurisdiction of a sub district office. From July 1, 2018, a street office handed over the sewage in its jurisdiction to an outside company for treatment, stopped supplying sewage to a sewage treatment plant, and did not pay the sewage fee to the plant.

In October 2019, a sewage treatment plant filed a lawsuit to the People's Court of Bishan District, Chongqing, requesting the cancellation of the Investment Agreement. A street office received a copy of the complaint on November 4, 2019, and then a sewage treatment plant withdrew the complaint. On April 20, 2020, a sewage treatment plant sued again, requesting a decree to terminate the Investment Agreement and compensate for the corresponding losses. According to the appraisal entrusted by the court of first instance, the total value of the facilities and equipment of a sewage treatment plant is 1277000 yuan. The court of first instance held that a sub district office had handed over the sewage within the jurisdiction to another company, and a sewage treatment plant had no sewage to treat, so the Investment Agreement could not continue to be performed. It was ordered that the Investment Agreement should be terminated in November 2019, and a sub district office should pay a sewage treatment fee loss of 225000 yuan and a loss of 1277000 yuan of facilities and equipment to a sewage treatment plant.

A sub district office appealed to the Chongqing First Intermediate People's Court against the judgment of first instance. The court of second instance held that the Investment Agreement was terminated due to the inability to continue to perform due to policy reasons. The sewage discharge of a certain sub district was the unified deployment plan of the people's government of Bishan District, not the behavior of a sub district office. Both parties were not at fault for the termination of the Investment Agreement. The amount of losses to be borne by both parties was determined according to the principle of fairness 50%, the first instance judgment was revoked, and the Investment Agreement was terminated on July 1, 2018, the date when a sub district office stopped supplying sewage to a sewage treatment plant, and a sub district office paid 638500 yuan for the loss of facilities and equipment of a sewage treatment plant. A sewage treatment plant refused to accept the second instance judgment, and its application for retrial was also rejected.

[Performance of procuratorial organs]

Acceptance and review A sewage treatment plant refused to accept the effective judgment and applied to the First Branch of Chongqing People's Procuratorate for supervision. The First Branch of Chongqing Municipal People's Procuratorate focused on the following issues: first, the cancellation of the Investment Agreement. A sub district office did not provide evidence to prove that a sewage treatment plant does not have the ability to transform and upgrade, and it is uncertain whether the plant can meet the requirements of national policy changes through transformation to meet the standards. A sub district office claimed that the contract could not be performed due to policy changes, which lacked basis; A sub district office did not notify a sewage treatment plant in advance and negotiated with it, and unilaterally stopped the sewage supply, resulting in the complete shutdown of the plant, which is the unilateral act that makes the purpose of the contract impossible to achieve; After a sewage treatment plant sues for termination of the contract, the contract shall be terminated on November 4, 2019, the date when a subdistrict office receives a copy of the complaint. Second, the identification of the responsibilities of both parties. A sub district office unilaterally terminated the performance of the contract without informing the reason. A sewage treatment plant, based on the trust of the contract, had certain expectations for the performance of the contract or the change of performance. In order to maintain normal operation, the plant incurred land rent, other facilities and equipment daily maintenance fees, basic labor costs and other related operating costs, A sub district office shall bear the liability for compensation for the losses caused to a sewage treatment plant during the period when the contract is not terminated.

Supervision opinions The First Branch of the Chongqing Municipal People's Procuratorate, after understanding the relevant policies of investigation and reviewing the reasons for the termination of the contract and the determination of the responsibilities of both parties, believed that the two parties did not negotiate to terminate the contract when a sub district office stopped supplying sewage, and a sub district office did not send a notice to no longer perform the contract, and should be liable for the losses caused to a sewage treatment plant by its unilateral termination of performance, The judgment of the second instance was wrongly applied to the law, so a protest was filed with the Chongqing Municipal People's Procuratorate. The Chongqing People's Procuratorate filed a protest to the Chongqing Higher People's Court on September 9, 2022.

Monitoring results The Chongqing Higher People's Court adopted the protest opinion of the procuratorial organ after trial, and made a retrial civil judgment on June 19, 2023: rescind the second instance judgment and maintain the first instance judgment. After the retrial decision was made, the First Branch of Chongqing Municipal People's Procuratorate contacted and paid a return visit to a sewage treatment plant in a timely manner, actively urged the government to pay damages in a timely manner, and the two parties reached a settlement agreement on the payment method of case funds, effectively solving the business dilemma of enterprises caused by huge economic losses due to government contract breach, It has helped private enterprises adapt to the development needs quickly and successfully. The enterprises involved in the case have now transformed from sewage treatment enterprises to green plant potted breeding enterprises, and have achieved good operating results.

Typical significance

（1） In handling cases, the procuratorial organ should accurately understand and grasp the impact of national policy adjustment on contract performance, apply the legal provisions of the Civil Code on contract dissolution according to law, and ensure that the observant party terminates the contract according to legal conditions and procedures. Article 533 of the Civil Code provides for the change of circumstances in the form of legislation for the first time, absorbing and improving the application conditions of the judicial interpretation of the original Contract Law on the change of circumstances system. The determination of the change of circumstances shall comply with "Unforeseeable at the time of conclusion of the contract", "Unforeseeable changes in objective circumstances after the contract is concluded", correctly understand and grasp whether the national policy adjustment constitutes a change in circumstances, and accurately study and judge whether the policy adjustment is unforeseeable at the time of conclusion of the contract, Whether the policy change will lead to the failure to achieve the purpose of the contract or the obvious injustice to one party in continuing to perform the contract, and clarify the fact that the contract cannot be performed. When the contract is still possible to be performed and the continued performance is not obviously unfair, the principle of change of circumstances should be carefully and strictly applied. The relevant policy documents of this case only put forward requirements for the sewage discharge standard. A sewage treatment plant can still continue to perform the contract by upgrading to meet the discharge standard. The change of national policy is not enough to cause the agreement to fail to perform. A sub district office unilaterally intercepts and stops the sewage without giving notice for consultation, which means that before the expiration of the performance period, it shows that it has failed to perform the main debt, which constitutes a fundamental breach of contract. A sewage treatment plant, as the observant party, has the right to unilaterally terminate the contract. Based on its formation right attribute, the unilateral intention to terminate the contract becomes effective once it reaches the other party. According to the provisions of the Civil Code, the parties claim to terminate the contract by bringing a lawsuit in accordance with the law, and the contract shall be terminated when the copy of the indictment is delivered to the other party.

（2） The procuratorial organ should be able to perform its duties according to law in handling cases, insist on achieving accurate supervision by strengthening investigation and verification in handling cases, actively extend procuratorial functions in combination with the actual situation of cases, and improve the quality and efficiency of supervision. On the one hand, investigation and verification, as an important means and method for procuratorial organs to perform their legal supervision functions in the new era, should use supervision thinking to guide investigation and verification, determine the direction of investigation and verification according to the types of cases and factual disputes, and identify the facts of cases through diversified investigation and verification means, It provides an important guarantee for procuratorial organs to correctly and effectively perform their legal duties. In this case, the procuratorial organ took the initiative to verify the policy changes with the water department and other relevant administrative organs, visited relevant towns and streets to understand the sewage treatment situation under their jurisdiction, accurately studied and judged the impact of the national policy adjustment on the performance of the contract involved in the case, corrected the acts of the administrative organ that could not achieve the purpose of the contract due to the unilateral termination of the performance of its obligations in bad faith, and maintained and protected the legitimate rights and interests of private enterprises. On the other hand, the procuratorial organ should actively extend its procuratorial functions, while effectively correcting the wrong judgments of the court, combine the interpretation of the law and reasoning, the publicity of the rule of law and the supervision according to law, and combine the handling of cases according to law with the service to ensure economic and social development. For cases involving economic contract disputes between the government and enterprises, we should promote government agencies to establish the concept of good faith performance through active performance of duties, guide government departments and other relevant units to be honest and keep promises in the process of performing contracts and handling such disputes, actively maintain the government's public trust, and create a good business environment. At the same time, we will further follow up the follow-up implementation of cases through extended performance of duties, actively coordinate and solve the practical difficulties of private enterprises, and serve to ensure the high-quality development of private economy.

Case 8

The divorce dispute between Huang and Yu supported the lawsuit

Keywords

Anti domestic violence Protection of rights and interests of women and children Support prosecution

Basic Case

Huang (female) and Yu (male) The marriage was registered on February 26, 2010, and both parties have a daughter, Yu XX. After marriage, Yu not only contracted the drug habit, but also repeatedly committed domestic violence against Huang. On February 15, 2020, Mr. Yu beat Mr. Huang after drinking, causing multiple injuries to his head and abdomen, and was sent to the hospital for emergency treatment. Due to long-term drug addiction, Yu was successively detained by the public security organ for administrative detention and forced isolation for drug rehabilitation for two years. After the expiration of compulsory isolation and drug rehabilitation, Mr. Yu still did not stop committing domestic violence against Mr. Huang, which led to Mr. Huang's unbearable desire to jump from a building and commit suicide. On November 2, 2022, Mr. Huang applied to the People's Procuratorate of Jinniu District, Chengdu for support in suing for divorce because of Mr. Yu's long-term practice of domestic violence, drug abuse, unemployment, no income source and difficulty in raising his daughter alone.

[Performance of procuratorial organs]

Acceptance The People's Procuratorate of Jinniu District, Chengdu, through preliminary examination and judgment, believes that Huang has suffered from domestic violence committed by his drug abusing husband for many times during his marriage relationship, and his legal rights and interests have been violated, and his own ability to safeguard his rights is weak. The support for the prosecution of Huang meets the legislative purpose of the Civil Code on prohibiting domestic violence and protecting the legal rights and interests of women and children, and should be accepted according to law.

Review process After accepting the case, the People's Procuratorate of Jinniu District carried out the following work: First, investigation and verification. The prosecutor asked Huang about his marriage, family and domestic violence in detail, listened carefully to Huang's wishes and demands for divorce, property division, child rearing, etc., and also visited the community where Huang lived to learn about Huang's family life, work income, marital relationship, etc. After investigation and verification, it was found out that Mr. Yu contracted drug abuse during his marriage with Mr. Huang and was forced by the public security organ to isolate for two years, and that Mr. Yu repeatedly committed domestic violence against Mr. Huang. Second, in accordance with the Law of the People's Republic of China on Legal Aid, coordinate legal aid institutions to provide legal aid lawyers for them, hold case seminars with legal aid institutions, listen to their opinions and legal aid lawyers, discuss and make suggestions on issues related to the case. Third, in view of the fact that Huang Mou reflected that he could not obtain the domestic violence alarm record, the drug abuse administrative punishment document of Yu Mou and other evidence problems, the hospital issued the Notice of Assistance in Investigation to the public security organ, requesting the public security organ to provide assistance in accordance with the law to prove that Yu Mou contracted the drug abuse habit during the marriage relationship with Huang Mou and was forcibly isolated by the public security organ for drug rehabilitation, As well as the fact that Mr. Yu has repeatedly committed domestic violence against Mr. Huang, it has laid a solid foundation for supporting the prosecution opinion. Fourth, judicial assistance was carried out simultaneously. According to the investigation, Mr. Huang is unemployed and has no source of income. He raises his daughter alone and lives with her in a rented house with a monthly rent of only 200 yuan. The payment of school related fees for her daughter has been delayed for a long time, and the family's economic situation is poor. According to the newly revised Law of the People's Republic of China on the Protection of Women's Rights and Interests and the requirements of the Notice of the Supreme People's Procuratorate and the All China Women's Federation on Deepening Attention to Women in Difficulties and Strengthening Judicial Assistance Activities, the court quickly granted 23000 yuan of judicial assistance through the green channel of judicial assistance to alleviate the difficult living situation of Mr. Huang. Fifth, comprehensive assistance was carried out in an all-round way. In order to prevent Mr. Yu's continued domestic violence from causing physical and mental damage to Mr. Huang and his daughter, the hospital took the initiative to contact the local police station to focus on Mr. Huang's family and deal with and stop domestic violence in a timely manner; Communicate with the district drug control office and the local sub district office, strengthen the regular hair detection and drug control education guidance for Yu, and prevent the re smoking from interfering with the normal life of Huang and his daughter. In view of the living difficulties of Mr. Huang, such as unemployment without income and delay in paying his daughter's study fees, he actively contacted the employment service management department in the district to find and provide employment opportunities and jobs for him; Actively coordinate with the education department of the district and the school. The school will reduce service fees, meals and other fees by more than 4000 yuan every year, and psychological counselors will regularly provide psychological counseling for their daughters. Sixth, actively carry out law popularization and rights protection guidance. In view of Mr. Huang's concern about his personal safety due to domestic violence, the prosecutor introduced laws and regulations on anti domestic violence such as the Civil Code, the Law of the People's Republic of China on the Protection of Women's Rights and Interests, and guided him to protect his personal safety through legal means such as reporting to the public security organ and applying for habeas corpus to the people's court.

Support prosecution opinions After examination, the People's Procuratorate of Jinniu District, Chengdu City believes that the third paragraph of Article 1079 of the Civil Code stipulates: "Divorce shall be granted if mediation fails under one of the following circumstances:...... (2) Domestic violence or maltreatment or abandonment of family members; (3) Gambling, drug abuse and other bad habits remain incorrigible..." During the existence of the marriage relationship, Mr. Yu not only repeatedly committed domestic violence against Mr. Huang, but also had a habit of taking drugs for a long time and was subject to administrative punishment, which damaged the civil rights and interests of Mr. Huang. The relationship between Mr. Huang and Mr. Yu has really broken. As a woman who was a victim of domestic violence, Mr. Huang sued for divorce in accordance with the provisions of the Civil Code. On December 26, 2022, the People's Procuratorate of Jinniu District made a decision in accordance with the law to support Mr. Huang in suing for divorce, suggesting that the court should carry out mediation work in a timely manner in accordance with the provisions of the third paragraph of Article 1079 of the Civil Code. If mediation is invalid, a judgment should be made according to the law.

Judgment result After the People's Court of Jinniu District of Chengdu accepted the divorce case between Huang and Yu, the People's Procuratorate of Jinniu District appeared in court to support the prosecution, not only read out the opinions supporting the prosecution, but also showed and explained the evidence collected with assistance, and also cooperated with the judge to carry out court education on Yu's domestic violence, drug abuse, and other bad habits, to educate him to abide by the law, quit drug addiction, and prohibit domestic violence, Earnestly fulfill the obligation of upbringing and education. After being presided over by Jinniu District People's Court, Mr. Huang and Mr. Yu reached a mediation agreement on divorce, daughter visit and other matters in court. On March 14, 2023, the People's Court of Jinniu District made a civil mediation statement: 1. Mr. Huang and Mr. Yu divorced voluntarily; 2、 Mr. Yu is supported by Mr. Yu, and Mr. Huang does not need to pay maintenance fees (including living expenses, education expenses, and medical expenses). If the medical expenses still need to be paid after the insurance reimbursement exceed 5000 yuan, Mr. Yu and Mr. Huang will bear 50% of the expenses respectively with official bills; 3、 Mr. Huang can visit Mr. Yu at any time, and the specific visiting method and time shall be negotiated between Mr. Yu and Mr. Huang; 4、 Huang voluntarily gave up other claims. After the divorce, the two parties agreed that their daughter, Yu, would live together with Huang and be raised and cared for by Huang.

Typical significance

（1） In handling cases, procuratorial organs should fully and accurately grasp the legislative spirit of the Civil Code and protect the legitimate rights and interests of women victims of domestic violence according to law. "Housework" is not out of the law. The Marriage and Family Code of the Civil Code clearly stipulates that marriage and family are protected by the state, domestic violence is prohibited, and the legitimate rights and interests of women and minors are protected. It also stipulates that the implementation of domestic violence and drug abuse are legal circumstances for divorce. The newly revised Law of the People's Republic of China on the Protection of Women's Rights and Interests also explicitly prohibits domestic violence against women, and newly stipulates that state organs and other institutions can support women whose rights and interests have been violated to sue in the people's court, which further reflects the unique value of supporting litigation in safeguarding the legitimate rights and interests of vulnerable groups such as women and children. In practice, women who are victims of domestic violence often lack legal awareness and ability to safeguard their rights, and are in a weak position, so they should become one of the key targets of prosecution. In this case, Mr. Yu has repeatedly committed domestic violence, and has the habit of drug abuse. His behavior directly endangers the physical and mental health and personal safety of Mr. Huang and his minor daughter. The procuratorial organ accurately grasps the legislative spirit and principles of the Marriage and Family Code of the Civil Code, applies the provision of the third paragraph of Article 1079 of the Civil Code that divorce should be allowed if mediation is invalid under legal circumstances, supports domestic violence women to safeguard their rights according to law by supporting litigation, effectively protects their legitimate rights and interests, rebuilds a good growth environment for minors, and enables the Civil Code This "treasure book" of civil rights protection has really landed, and "code" brightens people's minds.

（2） The procuratorial organs should adhere to the principle of performing their duties in an integrated way, comprehensively and actively, so as to achieve the best protection effect of supporting prosecution. Domestic violence directly harms the physical and mental health and personal safety of the victims of domestic violence and their minor children. In performing their duties and handling cases, procuratorial organs should pay attention to the system concept, take measures according to the cases, perform their duties in accordance with the law, comprehensively perform their duties, and actively perform their duties, rescue and solve difficulties, convey warmth, and protect the legitimate rights and interests of vulnerable groups such as women in difficulty and minors according to the law. In this case, the procuratorial organ, centering on prominent issues such as physical and mental protection and living difficulties of domestic violence women and minor children, actively assisted domestic violence women to apply for legal aid while supporting prosecution according to law, and simultaneously carried out judicial assistance, collaborative protection, rights protection guidance, life and employment assistance, etc "Integrated assistance+diversified assistance+long-term protection" can actively solve the legitimate rights and interests and living difficulties of domestic violence women and their minor children, and maximize the institutional value of supporting prosecution and protecting vulnerable groups.

Case 9

Hong and an affordable housing development company

Protest case of housing sales contract dispute

Keywords

House delivery Property fee Overdue house delivery Privity of contract

Basic Case

Jiangcheng Yiyuan Community is a resettlement community built by an affordable housing development company. Some of the remaining resettlement houses (all first-hand houses) are auctioned by an affordable housing development company according to the state-owned assets disposal methods and procedures. Before the auction, the auction company issued the Notice to Bidders, which stated that: please consult the property management department for property management, parking matters, property fees, utilities and other related fees. Interested bidders should carefully read the auction materials, survey the target property, consult the transfer tax and property fee standards, and proofread the loan conditions. After paying the auction deposit, they should fill in and sign the Bidding Certificate according to the above corresponding identity documents, and sign for the auction materials. The auction target shall be subject to the status quo. The bidder must understand and check the specific situation of the proposed auction target in all aspects, and the bidder must conduct on-site investigation and check on the use performance, quality and other conditions of the target, and fully evaluate the possible risks of bidding for the target and voluntarily bear them. Once a bidder enters the auction site and raises a placard to respond, he or she will acknowledge the status of the auction target and be willing to take responsibility for his or her participation in the auction according to the status of the auction target.

On June 21, 2018, Hong bought a house in the community through on-site auction, and signed the Commercial Housing Sales Contract with an affordable housing development company. The contract stipulates that the Seller shall deliver the commercial housing that has passed the comprehensive acceptance and conforms to the contract to the Buyer for use before December 21, 2018, and the overdue delivery shall be liable for breach of contract. The Early Stage Property Service Contract signed between an affordable housing development company and a property company stated that the property service fee should be paid by the owner annually, but no specific payment time was agreed. On July 24, 2018, an affordable housing development company sent a notice to Hong to collect the key. When Hong claimed the key from a property company with a copy of the notice and ID card, he was required to pay the property fee and energy consumption fee for one year. The property company refused to deliver the house key to Hong because there was a dispute between the two parties over whether the property fee should be prepaid.

On June 25, 2019, Hong appealed to the People's Court of Jiande City, asking an affordable housing development company to deliver the key and pay liquidated damages for overdue delivery. The court refused to deliver the key to Hong Mou with the third party custodian of the key without justified reasons, and an affordable housing development company constituted overdue delivery of the house, and the judgment supported Hong Mou's all claims. An affordable housing development company refused to accept the judgment of first instance and appealed to the Hangzhou Intermediate People's Court. The court believed that Hong purchased the house involved in the case through auction. According to the contents of the Bidding Instructions, Hong should have known the property company about the payment method of property fees in advance before bidding for the house involved in the case. In the event that Hong has no evidence to prove that the property company recognized that the bidder could get the key first and then pay the property fee before bidding, Hong should pay the property fee first and then get the key as required by the property company. An affordable housing development company has notified Hong Mou in writing to deliver the house before the delivery time agreed in the contract, which does not constitute overdue delivery of the house, so it changed its judgment and rejected all of Hong Mou's claims. Later, Hong refused to accept the judgment of second instance and applied for retrial to Zhejiang Higher People's Court, which ruled on April 24, 2020 to reject Hong's application for retrial.

[Performance process of procuratorial organs]

Acceptance and review Hong refused to accept the effective judgment of the second instance and applied to the Hangzhou People's Procuratorate for supervision. In order to find out the facts, the procuratorial organ reviewed the following issues by consulting the case files and asking the parties to fully understand the case: First, whether the contents of the Instructions to Bidders can be regarded as having reached an agreement with the property company on the payment method of property fees, and whether the buyer should bear adverse consequences. The auction company is entrusted by an affordable housing development company to carry out the auction. The auction is a way to reach a commercial housing sales contract, which is different from the property fee payment after the delivery of commercial housing. The Bidding Instructions only remind the owner to consult the property company about the property fee standard and payment method, and there is no clear property fee payment method and payment standard, The specific contents that do not belong to the invitation to offer in the commercial housing purchase and sale relationship are not binding on the owner, and the owner should not bear the adverse consequences only because of the prompt in the Instructions to Bidders. The second is whether the property company can refuse to deliver the house key on the ground that the owner has not paid the property fee in advance. After the conditions for the delivery of houses in this case were met, an affordable housing development company entrusted a property company to handle the delivery procedures uniformly. The subject of the commercial housing sales contract between an affordable housing development company and the buyer, and the property service contract between the owner and the property company are different, belonging to different legal relationships. In this case, the property company refused to deliver the house key, which in essence formed a lien. Since the owner belongs to an individual, the movable property retained by the creditor should belong to the same legal relationship with the creditor's rights. The property company in this case retained the house key based on different legal relationships, without legal basis. The mediation of the case was fruitless. The Hangzhou People's Procuratorate believed that an affordable housing development company had not actually fulfilled its obligation to deliver the house, and the overdue delivery of the house constituted a breach of contract, so it filed a protest with the Zhejiang People's Procuratorate according to law.

Supervision opinions After examination, the People's Procuratorate of Zhejiang Province believes that, in the absence of agreement in the Instructions to Bidders and the Commercial Housing Sales Contract, the payment of property fees is not a contractual obligation in the housing sales contract between Hong and an affordable housing development company. The property company's acquisition of key control is also based on the entrustment of an affordable housing development company, not the property service relationship with Hong. The property company refuses to deliver the house on the ground that Hong has not paid the property fee in advance, and the corresponding liability for breach of the Commercial Housing Sales Contract shall be borne by the client's affordable housing development company. The application of law in the original judgment was indeed wrong, and the Zhejiang Provincial People's Procuratorate filed a protest to the Zhejiang Provincial Higher People's Court on December 21, 2020.

Monitoring results The Higher People's Court of Zhejiang Province adopted the protest opinion of the procuratorial organ, and adjudged that an affordable housing development company delivered the key of the house involved in the case to Hong, and paid Hong a penalty of 8000 yuan for delaying the delivery of the house.

Typical significance

（1） The procuratorial organ shall accurately identify the responsibility for house delivery in handling the case of supervision over disputes over house sales contracts, and safeguard the legitimate rights and interests of the house buyers to receive houses according to the contract. The delivery of houses generally includes the developer's notice of acceptance, the presentation of materials related to the delivery of houses, and the buyer's acceptance of houses. In practice, It is a common practice for developers to "pay the property fee before paying the house" in the housing delivery link, but the legitimate rights and interests of buyers should not give way to the so-called common practice. The developer's house delivery and the property company's charges are based on different legal relationships and involve different legal subjects. Based on the commercial housing sales contract, the developer has the obligation to deliver the house. After it entrusts this obligation to the property company, the property company should perform the obligation of delivering the house according to the provisions of the housing sales contract. Its external performance is mainly to deliver the key of the house to the buyer, who will realize the actual control and use of the house. Based on the property service contract, the owner has the obligation to pay the property fee, but the property fee payment is not an additional condition and pre procedure for house delivery. In the absence of a clear agreement that the property fee should be paid at the time of delivery, the developer entrusted the property company that delivered the key to add the property fee paid in advance by the buyer as a condition for delivery, which violated the buyer's right to accept the house according to the agreement. If the property company refuses to deliver the key, resulting in the buyer's failure to accept the house within the delivery period agreed in the contract, the developer, as the client, shall bear the corresponding responsibility for overdue delivery.

（2） The procuratorial organ should strengthen the concept guidance of the Civil Code in handling cases, and promote the standardization and legalization of the property management industry. The property service industry has the characteristics of both social and service-oriented people's livelihood economy. In order to guide the standardized development of the industry, the Civil Code, on the basis of existing norms, summarizes the existing judicial standards in practice The "property service contract", as a typical contract, is a separate chapter, which clarifies the rights and obligations of the property service provider and the owner. The newly added property service provider in Article 944 of the Civil Code shall not rush to pay property fees by cutting off water and electricity. The prohibitive provisions are of great significance for standardizing the order of property management and safeguarding the legitimate rights and interests of owners. Similarly, the property company shall not use the way of refusing to pay the house to urge the payment of property fees and abuse its advantageous position to infringe upon the legitimate rights and interests of the owner. Through case handling, the procuratorial organ has made it clear that property companies have no right to require property buyers to pay property fees in advance by delivering keys, which reflects the judicial guidance of the Civil Code to strengthen and standardize property management behavior, and also provides a reference sample for relevant groups to safeguard their legitimate rights and interests, forming the social effect of "handling one case, governing one area".

Case 10

Li and Huang's application for supervision

Keywords

mortgage Priority claim Project fund distribution Implementation supervision

Basic Case

On January 5, 2012, Mr. Zou borrowed 6 million yuan from Mr. Li and Mr. Huang, and signed the Mortgage Loan Contract. The contract agreed that the loan term would be three months, from January 5, 2012 to April 4, 2012. At the same time, it agreed that Mr. Zou would mortgage his property located in a community on Zhuhai Avenue, Zhuhai City. On January 16 of the same year, both parties handled mortgage registration at Zhuhai Real Estate Registration Center, and the performance period of registered main debt was from January 5, 2012 to April 4, 2012. Zou confirmed the loan involved on December 25, 2014. In December 2019, Mr. Li and Mr. Huang sued Mr. Zou in the People's Court of Hengqin New District, Zhuhai City, Guangdong Province for a private loan dispute involving 6 million yuan. During the trial, Mr. Zou did not raise a plea of limitation of action. In January 2020, the court made a civil mediation statement according to law, which confirmed that Mr. Zou would repay the principal and interest of 6 million yuan before February 10, 2020 Mr. Huang enjoys the priority of compensation within the scope of creditor's rights in respect of the house involved in the case.

In 2014, Zou and others borrowed another 41 million yuan from a real estate development company in Ruijin City, an outside company, and were unable to repay the loan. A real estate development company in Ruijin City sued Zou and others to the Jiangxi Ganzhou Intermediate People's Court, which made a property preservation decision in December 2014 and sealed up Zou's properties and other properties involved in the above case, In July 2015, a civil judgment was made, ordering Zou and others to repay a total of 41 million yuan of loan principal and corresponding interest. After the judgment came into effect, Ganzhou Intermediate People's Court designated the case to be executed by Jiangxi Ruijin People's Court in August 2016. After the case was filed and executed, the Ruijin People's Court ruled in November 2016 to seal up the property involved in the case, and in May 2017 to auction it. In January 2019, the execution court issued an auction notice after entrusted evaluation, and the property involved in the case was auctioned at 6.095 million yuan. In March 2019, the execution court ruled that the mortgage set on the house property involved in the case was extinguished, and the house seal was lifted, and the house involved in the case was owned by the bidder.

After knowing that the mortgaged property was auctioned, the registered mortgagees of the house involved in the case, Mr. Li and Mr. Huang Since February 2019, the execution court has repeatedly claimed the priority of mortgage repayment and applied to participate in the distribution of execution funds. However, the execution court has not accepted the application of Mr. Li and Mr. Huang on the grounds that the limitation of action for the main creditor's rights involved in the mortgage registration has expired. In November 2019, the execution court directly distributed the auction proceeds of the real estate involved in the case to a real estate development company in Ruijin City, an ordinary creditor.

[Performance of procuratorial organs]

Acceptance and review In January 2022, Mr. Li and Mr. Huang applied to Ruijin Municipal People's Procuratorate for supervision, claiming that they were the only mortgagee of the property involved in the case and enjoyed the priority of compensation according to law. The execution court did not accept their application to participate in the distribution of the case funds, and it was wrong to directly distribute the auction funds of the property involved in the case to ordinary creditors. Ruijin People's Procuratorate accepted the supervision application of Mr. Li and Mr. Huang according to law. The procuratorial organ focused on the mortgage of the real estate involved in the case, the application of Mr. Li and Mr. Huang to participate in the execution of the distribution and whether the court's execution was improper. In the process of review, the procuratorial organ carried out the following investigation and verification: First, the procuratorial organ retrieved the registration information of the real estate involved in the case, and found out that in January 2012, Mr. Li and Mr. Huang were the only registered mortgagees of the real estate involved in the case. Before the disposal of the real estate involved, the mortgage registration involved in the case was not cancelled, and the executive court has inquired about and learned about the mortgage of the real estate. The second is to obtain the service of legal documents, and find out that the executive court has not legally served the relevant case related property appraisal report to the registered mortgagee, Mr. Li and Mr. Huang, and has not prepared the executive property distribution plan. Third, we investigated with the enforcement judge and found out that the enforcement court did not accept their application for participation in distribution on the grounds that the limitation of action for the main creditor's rights involved by Mr. Li and Mr. Huang had expired.

Supervision opinions Ruijin People's Procuratorate, after conducting a comprehensive and objective review of the situation that Mr. Li and Mr. Huang's mortgage priority has not been guaranteed in accordance with the law, believes that the enforcement court did not accept and support Mr. Li and Mr. Huang's application for participating in the distribution of enforcement funds based on the mortgage priority in accordance with the law, which does not comply with the law, the enforcement procedure is illegal, and the payment distribution is wrong. Therefore, on April 13, 2022, a procuratorial proposal was issued to Ruijin People's Court according to law, suggesting that the implementation of the distribution of funds should be reviewed again to protect the legitimate rights and interests of Mr. Li and Mr. Huang according to law.

Monitoring results On June 21, 2022, the People's Court of Ruijin City replied to the People's Procuratorate of Ruijin City by letter, stating that the appraisal report of the house involved in the case had not been delivered to Mr. Li and Mr. Huang, nor had they accepted and replied to their application for participation in the distribution. It would seriously investigate, timely promote the redistribution of the case funds, and protect the legitimate rights and interests of Mr. Li and Mr. Huang. In view of the great differences between the parties to the case in terms of the distribution of the subject money, the difficulty in promoting the redistribution of the case money, the procuratorial organ was able to perform its duties according to law, continued to follow up the implementation of the rectification of the procuratorial recommendations, and worked with the court, which ultimately facilitated the parties to reach an implementation settlement agreement, and the mortgagee, Mr. Li and Mr. Huang, received 4.5 million yuan from the auction of the real estate involved in the case, The eight year long dispute over the implementation of the property involved has been thoroughly resolved.

Typical significance

（1） When handling cases involving mortgage execution supervision, the procuratorial organ should accurately identify the priority right of the mortgagee to be repaid, so as to protect the legitimate rights and interests of the mortgagee. Article 410 of the Civil Code stipulates that the mortgagee has the priority to be compensated for the money obtained from the conversion of the mortgaged property or the auction or sale of the mortgaged property. Provisions of the Supreme People's Court on Auction and Sale of Property in Civil Enforcement by the People's Court Article 28 stipulates that the original security interest and other priority rights to be repaid on the auction property shall be extinguished by auction, and the proceeds from auction shall have priority in paying off the creditor's rights of the holder of security interest and other priority rights to be repaid, unless otherwise agreed by the parties. The judicial interpretation of the Supreme People's Court on the Civil Procedure Law stipulates that creditors who have priority and security interest in the property sealed up, detained or frozen by the People's Court may directly apply for participation in the distribution and claim the priority of compensation. In this case, the execution court has found out that the real estate involved in the case has mortgage registration during the execution process. In the case that Zou has not paid off the due debts, Mr. Li and Mr. Huang can directly apply to participate in the distribution of the auction price of the mortgaged real estate and claim the priority of compensation. Therefore, the execution court, knowing that the real estate involved in the case has been mortgaged, failed to accept the application of the mortgagee, Mr. Li and Mr. Huang, to participate in the distribution of the real estate auction execution funds according to law, which hindered the legal realization of the priority of compensation. The procuratorial organ should supervise it and protect the legitimate rights and interests of the mortgagee according to law.

（2） When handling cases involving mortgage enforcement supervision, procuratorial organs should accurately grasp the relevant provisions of not actively invoking the limitation of action, and supervise according to law Violation of the law of "substituting execution for trial". Article 193 of the Civil Code stipulates that the people's court shall not apply the limitation of action on its own initiative. The period of limitation of action is related to the substantive rights. The parties should first raise a plea of limitation of action in the trial procedure, and it should be determined by the people's court. The enforcement agency cannot directly make substantive treatment on whether the period of limitation of action for the main debt has gone through. In this case, although the main debt performance period of the real estate mortgage certificate registration involved in the case was from January 5, 2012 to April 4, 2012, from the formal point of view, when Mr. Li and Mr. Huang claimed the distribution of the real estate execution involved in the case in 2019, the limitation of action for the main debt involved in the mortgage registration had expired, but the execution court did not cancel the mortgage registration, nor did the relevant effective judgment determine that the mortgage involved in the case had been extinguished, In addition, if there is another effective mediation statement confirming that the mortgagee has the priority to be repaid, the distribution application of the registered mortgagee claiming the priority to be repaid will not be accepted on the ground that the duration of the mortgage has expired, and it will directly rule that the mortgage is extinguished, which belongs to "taking the execution as a proxy". The procuratorial organ should accurately grasp the relevant provisions of the Civil Code, and supervise the wrong execution of the execution court's initiative in applying the limitation of action and ruling on the elimination of mortgage.

Case XI

A real estate company and Lin Mouzhi, Li Mou

Series of Protests to Eliminate Obstruction Disputes

Keywords

Remove nuisance Illegal possession Property protection Civil protest

Basic Case

In May 2010, Shangluo Urban and Rural Construction Bureau approved an equipment company to build a commercial and residential building. An equipment company and Shi Mouhu agreed to cooperate in the construction, and agreed that the first to third floors of the completed building would belong to an equipment company, and the rest would be sold by Shi Mouhu. Later, Shi Mohu contacted Zhao Moyu to invest in partnership, and Zhao Moyu made an oral agreement with Chen Momin to invest in partnership without Shi Mohu's knowledge. In April 2015, a real estate company obtained the land use right of the project involved in the case by way of transfer, and handled the construction land planning license, construction project planning license, construction license, and commercial housing sales license according to law to develop the above commercial residential buildings. Shi Mouhu negotiated with a real estate company orally to continue to fulfill the cooperative construction agreement of the building with a equipment company. A construction company with Shi Mouhu as the legal representative carries out construction, Zhao Mouyu as the project manager, and Chen Moumin as the site construction director. In 2015, Chen Moumin borrowed 550000 yuan from Lin Mouzhi. Chen Moumin issued an IOU and agreed to take the two houses built in the project involved as the guarantee. If Chen Moumin is unable to repay when due, the house involved in the case will be owned by Lin Mouzhi. On the same day, Chen Moumin privately obtained the commercial housing sales contract that is no longer used from the sales department of the project involved in the case, agreed that a real estate company would sell the house involved to Lin Mouzhi, agreed on the house number, area, price, delivery time and other matters, and stamped the official seal of a real estate company and the seal of the legal representative. In the same year, Chen Moumin borrowed 200000 yuan from Li Mou, and issued a IOU and a letter of commitment, promising to mortgage the project house and not return the project house to Li Mou when due. The money was actually paid to Chen's account. Chen Moumin failed to repay the loan when it was due. In April 2016, Lin and Li went to the house corresponding to the commercial housing sales contract and letter of commitment to replace the door lock and place items. A real estate company failed to stop it, so it filed a lawsuit with the People's Court of Shangzhou District, Shangluo City in January 2017, requesting Lin and Li to hand over the occupied houses and compensate for the losses. The court made a judgment of first instance, holding that a real estate company was the legal owner of the house involved in the case, and that Lin and Li had no legal basis to occupy the house, so it decided that Lin and Li vacated the house to a real estate company. Lin and Li appealed. In August 2019, the Intermediate People's Court of Shangluo City issued a judgment of second instance, dismissing the claim on the ground that a real estate company was the nominal developer of the house involved in the case, not the owner of the house or other obligees, did not enjoy the right to exclude nuisance. A real estate company objected and applied to the Shaanxi Higher People's Court for retrial, which ordered the Shangluo Intermediate People's Court to retrial. Shangluo Intermediate People's Court made a retrial judgment, and upheld the second instance judgment for the same reason.

[Performance process of procuratorial organs]

Acceptance and review In April 2021, a real estate company applied to the People's Procuratorate of Shangluo for supervision, which, after examination, submitted a protest to the People's Procuratorate of Shaanxi Province. The procuratorial organ also found out the following facts by reading the files, asking the parties, and investigating and verifying with the relevant administrative authorities: on January 19, 2020, a real estate company made up the land overbuilding and adjusted the land use life transfer fees involved in the case. On May 26, 2020, Shangluo Natural Resources Bureau and a real estate company re signed the Transfer Contract of State owned Construction Land Use Right, and obtained the construction land use right certificate. On January 18, 2021, a real estate company obtained the real estate right certificates of three houses involved in the case. Chen Moumin and Zhao Mouyu both agreed that the two parties orally agreed that the development and construction of the property involved in the cooperative development case would be carried out in the name of a real estate company, and the settlement would be made after the housing sales. Chen Moumin, Lin Mouzhi and Li Mou agreed to pay the debt with a house without the consent of Zhao Mouyu and Shi Mouhu, and there was no evidence to prove that the loan was used for the development of the property involved in the case.

Supervision opinions After examination, the People's Procuratorate of Shaanxi Province believed that a real estate company was the legal owner of the house involved in the case and had the right to request the removal of the obstruction. Li and Lin did not provide sufficient evidence to prove that Chen was the actual obligee of the property and obtained the rights related to the housing involved in the case. The effective judgment rejected the lawsuit request of a real estate company on the ground that a real estate company did not enjoy the basic right to exclude the obstruction of the house involved in the case, and the application of law was wrong. In January 2022, the Shaanxi Provincial People's Procuratorate filed a protest to the Shaanxi Provincial Higher People's Court.

Monitoring results The Higher People's Court of Shaanxi Province adopted the protest opinion, rescinded the original retrial and second instance judgments, and upheld the first instance judgment of the People's Court of Shangzhou District.

Typical significance

（1） The procuratorial organ shall confirm the legal obligee of the fixed object, implement the real right protection spirit of the Civil Code, and strengthen the judicial protection of property rights when handling the case of real right exclusion of obstruction disputes. Based on the claim of real right, the subject of right to exclude the obstruction should be the legal obligee of the thing, so when handling such cases, it should correctly determine whether the claimant is the legal obligee of the thing. According to Article 352 of the Civil Code, the ownership of buildings, structures and ancillary facilities built by the right holder of construction land use belongs to the right holder of construction land use, unless there is evidence to the contrary. This case belongs to the case where the party without real estate development qualification borrows the qualification of a real estate development enterprise with real estate development qualification to carry out development and construction. A real estate company obtained the state-owned land use right certificate by way of transfer, handled the housing development and construction procedures involved in the case according to law, obtained the housing ownership certificate, and did not revoke the housing ownership certificate according to law In case of change or other evidence to the contrary, it shall be identified as the legal owner of the house involved in the case, and has the right to require the unauthorized owner to remove the obstruction. The real right owner exercises the right to possess, use, benefit and dispose of his property within the scope permitted by law. The Civil Code has established the protection system of real right in China's civil law, and has stipulated the rights enjoyed by the right owner when the real right is infringed. When the real right holder is unable to fully exercise the real right function due to the illegal act of others, the real right holder can exercise the right of claim for confirmation of real right and the right of claim for elimination of obstruction, eliminate the obstacles or violations of real right, and restore the perfect state of real right. The procuratorial organ corrected the wrong effective judgment through protest, excluded the illegal occupation of the house involved in the case by others, and effectively safeguarded the legitimate rights and interests of the obligee.

（2） In handling cases, procuratorial organs should implement the concept of precise supervision, accurately identify the nature of the rights of all parties, and implement the principle of property rights priority. The illegality of nuisance is the prerequisite for the establishment of the claim of excluding nuisance. Therefore, we should accurately identify the nature of the legal relationship between the parties and correctly judge whether the actual possessor's possession has legal basis. In this case, Chen Moumin issued a letter of commitment to Mr. Li that the house involved in the case was a loan guarantee, and Lin Mouzhi signed a Commercial Housing Sales Contract with a real estate company. Whether Mr. Li and Mr. Lin can obtain the real right of security or the expectant right of real right of housing involved in the case against the ownership of a real estate company based on the commitment and the Commercial Housing Sales Contract is the key point of the case review. According to the provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases Article 23: The essence of the housing purchase contract involved in the case is to conclude a commercial housing sales contract as a guarantee for Chen's private loan contract. At the same time, Mr. Li, Mr. Lin and Mr. Chen expressed their intention to guarantee the loan with the house involved, but they did not go through mortgage registration and the mortgage was not effectively established. Therefore, Mr. Li and Mr. Lin do not have the right to expect the real right of the house involved, nor can they occupy the house owned by others according to the guarantee intention of both parties. A real estate company has the right to exclude illegal possession according to law. There are various legal relationships between the actors of the case, and the protection of property rights is intertwined with the protection of creditor's rights. The procuratorial organ should establish a penetrating review thinking, take the expression of the true intention of the parties as the core, accurately identify the legal relationship between the parties and the nature of the rights, uphold the principle of priority of property rights, protect the dominant interests and property rights of the property owner, and implement the property rights protection system of the Civil Code. At the same time, accurate supervision is used to guide creditors to claim their rights rationally according to law.