Summary of seminar on transfer of non-performing financial creditor's rights
In order to conscientiously implement the central government's spirit of studying and solving the problem of the loss of state-owned assets in the process of transferring financial bad debts. Unify thoughts, clarify tasks, properly and fairly hear cases involving the transfer of financial bad debts according to law, prevent the loss of state-owned assets, ensure the smooth disposal of financial bad debts, and maintain and promote social harmony and stability. The Supreme People's Court invited the the National People's Congress Standing Committee (NPCSC) Law Commission, the Central Political and Legal Committee, the Legislative Affairs Office of the State Council, the Ministry of Finance, the State-owned Assets Supervision and Administration Commission of the State Council, the China Banking Regulatory Commission, the People's Bank of China and the National Audit Office to hold a national symposium on the trial of financial non-performing creditor's rights transfer cases in Haikou, Hainan Province on June 5438+10/October 65438+April 2008. Vice presidents in charge of civil and commercial trials of the Higher People's Court of the municipality directly under the Central Government, the Military Court of the People's Liberation Army and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region and responsible comrades of relevant courts attended the forum. After careful discussion, the comrades attending the meeting reached a consensus on the main issues in the trial of financial bad debt transfer cases. The summary is as follows:
First, the principles to be followed in the trial of such cases
The meeting held that such cases are related to the smooth disposal of financial non-performing assets, the protection of state-owned assets, the protection of employees' interests and social stability. Therefore, the people's courts must attach great importance to such cases and adhere to the following principles in the trial:
(1) Adhere to the principle of safeguarding national economic security. Civil and commercial trial work is an important means for the state to maintain economic order, prevent and resolve market risks and safeguard national economic security. The national courts must obey and serve the state's monitoring of national economic stability and the safety of state-owned assets, proceed from the purpose of the central policy, rely on the basic spirit of civil and commercial laws and regulations, and aim at regulating the financial market, preventing financial risks, maintaining financial stability and ensuring economic security, and properly handle such disputes in accordance with the law to ensure the stability of the national economic order and the safety of state-owned assets.
(2) Adhere to the principle of maintaining enterprise and social stability. The disposal of non-performing financial assets involves significant economic interests of enterprises. Courts across the country should further strengthen their awareness of politics, overall situation, responsibility and safety, proceed from safeguarding the overall situation of national reform, development and stability, handle such disputes fairly and properly according to law, effectively prevent possible mass, sudden and vicious incidents, and earnestly "resolve contradictions, straighten out relations, reassure people and maintain order".
(3) Adhere to the principle of fairness, appropriateness and reasonableness according to law. When trying such cases, the people's courts should combine the application of legal provisions and rules with the realization of the central policy spirit, combine the concepts of autonomy of will and equal protection in civil and commercial law with national economic policies, financial market supervision and social influence, correctly handle the "relationship" between protecting state-owned assets, ensuring the smooth disposal of financial non-performing assets, and maintaining the stability of enterprises and society, and make overall plans. Be just and reasonable, ensure the unity of justice and justice according to law, and ensure the legal effect of the trial.
(four) adhere to the principle of giving priority to mediation and combining mediation with judgment. In order to avoid the intensification of contradictions, maintain social stability and balance the interests of all parties, the people's court should fully explain the spirit of national policy to the parties in the proceedings and clarify their vague understanding of laws and policies. Adhere to the priority of mediation, actively guide the parties to negotiate in the spirit of mutual understanding and accommodation, and try to resolve disputes by mediation as much as possible. If the parties fail to reach a settlement, the people's court shall conduct an appropriate and fair trial according to the relevant laws and regulations and the minutes of this symposium (hereinafter referred to as the minutes).
Second, about the acceptance of the case
The meeting held that in order to ensure that such cases are handled fairly and properly, the people's court should accept such cases that meet the acceptance conditions stipulated in the Civil Procedure Law and the spirit of the relevant provisions of the Summary. If the debtor of a state-owned enterprise knows or should know that the non-performing creditor's rights have been transferred to the financial asset management company and still pays off the original state-owned bank, it shall not object to the transferee's recourse lawsuit. If the debtor of a state-owned enterprise brings a lawsuit to the former state-owned bank to return unjust enrichment after paying off the transferee, the people's court shall accept it. If the debtor of a state-owned enterprise does not know that the bad creditor's rights have been transferred and paid off by the original state-owned bank, it may object to the recourse lawsuit filed by the transferee. If the transferee sues the state-owned bank for returning unjust enrichment, the people's court shall accept it.
If the transferee claims to add the original state-owned bank as a third party in the recourse lawsuit against the debtor of the state-owned enterprise, the people's court will not support it; If a final judgment has been made before the release of the minutes or according to the minutes, the people's court will not support it if the parties consider that the effective judgment is indeed wrong and apply for retrial according to the minutes.
In any of the following circumstances, the people's court shall not accept it:
(1) A financial asset management company and a state-owned bank bring a lawsuit to the people's court for a dispute over a policy-based financial asset transfer agreement;
(2) Creditors claim to pay off the debts of debtors of state-owned enterprises that are closed and bankrupt by the state policy;
(3) Creditors claim to pay off the debts of state-owned enterprise debtors that have been included in the overall plan of national enterprise policy closure and bankruptcy approved by the State Council;
(4) Prior to the release of the minutes, the creditor-debtor relationship between the assignee of the state-owned enterprise and the debtor of the state-owned enterprise has been fulfilled, and the preemptive right holder or the debtor of the state-owned enterprise brings an invalid lawsuit against the bad creditor's rights transfer contract;
(5) After receiving the bad creditor's rights from the financial asset management company, the transferee sued the original state-owned bank on the grounds that the bad creditor's rights were defective;
(VI) The state-owned bank or financial asset management company transfers the bad creditor's rights of the state-owned forest industry enterprise that enjoys the natural forest resources protection project policy, resulting in the transferee claiming creditor's rights from the forest industry enterprise (see the List of Application Forms for Debt Exemption of Financial Institutions of Forest Industry Enterprises in Natural Forest Protection Areas for details);
(seven) in the litigation of invalid bad debt transfer contract, the debtor of the state-owned enterprise can not provide the corresponding guarantee or the preemptive right waives the preemptive right.
Three, the effective conditions of creditor's rights transfer and the legal application of the self-agreed effect.
The meeting held that if the bad creditor's rights were established before the implementation of the contract law and transferred after the implementation of the contract law, the conditions for the transfer of creditor's rights to take effect for the debtor should apply the provisions of the first paragraph of Article 80 of the contract law.
If a financial asset management company agrees or re-agrees with the debtor on its own after accepting the bad creditor's rights, which does not violate the law, the people's court shall consider the agreement valid. If a financial asset management company prohibits resale in the transfer contract of bad debts, it shall recover from state-owned banks, people's governments at all levels, state institutions, etc. , and transferred to a specific third party, etc. The people's court shall determine that this clause is valid. If the state-owned bank transfers the non-performing creditor's rights to the financial asset management company, or the financial asset management company purchases or disposes of the non-performing creditor's rights, the secured creditor's rights will be transferred at the same time without the consent of the guarantor, and the guarantor will continue to bear the guarantee responsibility to the transferee within the original guarantee scope. If it is stipulated in the guarantee contract that the contract change requires the consent of the guarantor or prohibits the transfer of the principal creditor's rights, it is not binding on the transfer of the principal creditor's rights and security rights.
Fourth, about the preemptive right of local governments.
The meeting held that in order to prevent the loss of state-owned assets in the process of disposing of non-performing creditor's rights through the transfer of creditor's rights, the relevant local people's governments, institutions or departments that perform the investor's duties on behalf of the people's governments at the corresponding levels, or group companies holding the state-owned capital of state-owned enterprise debtors may exercise the preemptive right to non-performing creditor's rights.
After the disposal plan, trading conditions, disposal procedures and the way of transferring bad debts to non-state-owned financial institutions as legal persons are determined, if a single (single household) transfers bad debts, the financial asset management company shall notify the preemptive right holder of the debtor's registered place of the state-owned enterprise. If the non-performing creditor's rights are transferred in the form of an overall "asset package", if the registered place of the principal debtor in the asset package belongs to the same jurisdiction, it shall notify the preemptive right holder within the jurisdiction; If the principal debtor in the asset package is registered in different jurisdictions, it shall notify the preemptive right holder of the superior administrative region where the principal debtor is the same.
According to the determined disposal scheme, trading conditions, disposal procedures and methods, the above-mentioned preemptive right holders enjoy the preemptive right under the same conditions. After receiving the notice, the preemptive right holder clearly refuses to buy or fails to make a written reply on whether to exercise the preemptive right within 30 days from the date of receiving the notice, or fails to make a written reply before the auction and bidding date determined by the announcement, or fails to participate in the auction and bidding according to the time and conditions stipulated in the auction announcement and bidding announcement, it is deemed as giving up the preemptive right.
The financial asset management company has completed the transfer of non-performing creditor's rights before the summary is published, and the people's court will not support the above-mentioned preemptive right holder's claim to exercise the preemptive right.
If the debtor advocates buying bad debts first, the people's court will not support it.
Five, about the right of action of state-owned enterprises and related litigation procedures.
The meeting held that in order to avoid the abuse of litigation rights by the parties, if the debtor of a state-owned enterprise raises a defense that the transfer contract of bad debts is invalid on the grounds that the transfer behavior of bad debts damages the state-owned assets, the people's court shall inform him to file another lawsuit with the same people's court and declare the transfer contract of bad debts invalid; If the debtor of a state-owned enterprise does not sue separately, the people's court will not support his defense. If the debtor of a state-owned enterprise files a lawsuit for invalidation of the non-performing creditor's rights transfer contract again, the people's court shall suspend the trial of the assignee's lawsuit for claiming creditor's rights from the debtor of the state-owned enterprise. After the lawsuit for invalidation of the non-performing creditor's rights transfer contract is accepted, the two cases shall be tried together. If the debtor of a state-owned enterprise files a lawsuit for invalidation of the non-performing creditor's rights transfer contract again during the second trial, the people's court shall suspend the trial of the assignee's lawsuit for claiming creditor's rights from the debtor of the state-owned enterprise, and try again after the lawsuit for invalidation of the non-performing creditor's rights transfer contract is accepted and the judgment of first instance is made.
If the assignee's creditor's rights are directly transferred from the financial asset management company after the invalid lawsuit of the bad debt transfer contract filed by the debtor of the state-owned enterprise is accepted, the people's court shall list the financial asset management company and the assignee as the parties to the case; After a financial asset management company is transferred to another transferee, if the transferee obtains the creditor's rights of the transferee, the people's court shall list the financial asset management company, the transferor and the subsequent transferee as the parties to the case.
Six, on the bad debt transfer contract invalid and revocable reasons.
The meeting held that the people's court should, in accordance with the Contract Law, the Regulations on Financial Asset Management Companies and other laws and regulations, and with reference to the relevant national policies and regulations, focus on examining the transferability of non-performing creditor's rights, the transferee's qualification and the fairness and legality of the transfer procedures. If a financial asset management company transfers non-performing creditor's rights under any of the following circumstances, which damages the national interests, social public interests or violates the mandatory provisions of laws and administrative regulations, the people's court shall consider the transfer contract invalid.
(a) The debtor or guarantor is a state organ;
(2) Sensitive information that is legally recognized by the relevant state organs as involving national security, national defense and military industry, and other circumstances that prohibit or restrict the transfer according to law;
(3) Malicious collusion with the transferee to transfer the bad creditor's rights;
(4) The announcement on the transfer of non-performing loans violates the provisions of the Administrative Measures for the Announcement on the Disposal of Assets of Financial Asset Management Companies (Revised), which has a substantial impact on the disposal of non-performing assets in accordance with the principles of openness, fairness, impartiality, competition and merit;
(5) The assets package actually transferred is seriously inconsistent with the contents of the assets package announced before the transfer, which is inconsistent with the Administrative Measures for the Announcement of Asset Disposal of Financial Asset Management Companies (Revised);
(six) according to the relevant provisions, it should be evaluated by a legal and independent evaluation agency, but it has not been evaluated; Or the financial asset management company and the evaluation agency, the evaluation agency and the debtor, the financial asset management company and the debtor, and the three parties maliciously collude to underestimate or omit bad debts;
(seven) according to the relevant provisions should be taken to open tender, auction and other ways to deal with, but not open tender, auction; Or there are less than three bidders for public bidding (excluding three); Or when transferring non-performing creditor's rights by auction, failing to openly select a qualified auction intermediary; Or not in accordance with the provisions of the "People's Republic of China (PRC) auction law" auction;
(eight) according to the relevant provisions, the administrative department shall handle the relevant examination and approval or registration procedures, and it has not been handled before the end of the debate in the court of first instance;
(9) The transferee is a national civil servant, staff of financial supervision institutions, police officers of politics and law, staff of financial asset management companies, debtor managers of state-owned enterprises, intermediaries such as lawyers, accountants and appraisers involved in asset disposal, or a non-financial institution legal person with the participation of the above-mentioned related persons;
(ten) the transferee and the staff of the financial asset management company, the debtor of the state-owned enterprise or the person in charge of the entrusted asset appraisal institution who participated in the transfer of non-performing debts have lineal relatives;
(eleven) there are other transfer situations that harm the national interests or social public interests.