Brief introduction of the case
Plaintiff: Pan.
Defendant: On September 9, 200 1 09/KLOC-0, a branch of China Industrial and Commercial Bank Yuyao Branch, Li Xiangpan, the former director of a branch, borrowed RMB 1 10,000, and issued the following receipt: Pan Cash110,000 was received today for discounting bank acceptance bills. The maturity date is 200 1 year1February 20th. The receipt is stamped with the official seal of a branch company. After Li Yin died in a traffic accident, Pan borrowed 1 10,000 yuan from a branch with the receipt, but failed to appeal to the court.
In April, 2002, Pan sued a branch for a loan dispute, and the civil judgment No.93 of Ningbo Intermediate People's Court (200 1) won the case in the first instance, and it was decided that a branch should return the loan of 6,543,800 yuan to Pan.
In September 2002, the case was tried by the Higher People's Court of Zhejiang Province for the second time, and the civil judgment of Zhejiang Fa Min Zhong Zi (2002)No. 108 stated that "the reason for borrowing was obviously fictitious", and Pan "failed to provide evidence to prove that a branch did receive the money (one million yuan)", and Pan "claimed that there was no factual basis". It is not a duty behavior for Li, the former director of a branch bureau, to issue a receipt. At the same time, a newspaper in Hang Cheng also appeared a large-scale false report accusing Pan of seeking illegitimate interests, which had a bad influence on Pan's personal reputation.
At the end of 2002, the author and lawyer Yao Jie accepted Pan's entrustment to apply for retrial as an agent. Since then, the case was reviewed by the Supreme People's Court, and the Zhejiang Higher People's Court upheld the original effective judgment. the Supreme People's Court ordered the Zhejiang Higher People's Court to retry, during which it held several sessions. After a lapse of four years, the original judgment of the second instance was finally revoked by the Judicial Committee of Zhejiang Higher People's Court on June 5, 2006, which upheld the fair judgment of Ningbo Intermediate People's Court. In the first half of 2006, Pan successfully recovered his1000000 yuan from Yuyao Industrial and Commercial Bank.
During the retrial, two attorneys also went to Yuyao to investigate and collect evidence. After many years, they still collected several key new evidences that were extremely beneficial to Pan, thus laying a good evidence foundation for retrial and revision of sentence, finally effectively protecting Pan's legal property, and at the same time saving the bad influence of wrong judgment on his personal reputation.
Controversy focus 1. Whether the fictitious reasons for borrowing can directly deny the objective facts of borrowing; 2. The burden of proof for accepting the loan shall be borne by the lender or the borrower; 3. Whether a branch should bear civil liability for the borrowing behavior of its former head Li.
Trial judgment
judgement of first instance
The Intermediate People's Court of Ningbo City, Zhejiang Province made (200 1) the civil judgment of Yong Min Zi Chu No.93 on April12002.
After trial, the Intermediate People's Court of Ningbo City, Zhejiang Province held that the receipt stamped with the official seal of the defendant's business issued by Li, the former director of the defendant's certain branch, was a confirmation of the debt-the act of issuing the receipt to the plaintiff as the person in charge of the defendant should be recognized as a duty act, so the plaintiff had the right to ask the defendant to repay the debt as agreed, and the plaintiff's claim could be supported. As a branch of a financial institution with a business license, the defendant can become the subject of this case according to the relevant provisions of the Civil Procedure Law. The defendant argued that "the plaintiff's litigation object did not match, and the branch did not receive the loan, which was Li's personal behavior" was inconsistent with the facts and was not adopted. According to Article 84 of General Principles of Civil Law of People's Republic of China (PRC) and General Principles of Civil Law of People's Republic of China (PRC), the defendant branch was sentenced to return the debts owed by the plaintiff Pan.
second instance judgement
The Higher People's Court of Zhejiang Province made the civil judgment (2002)No. 108 on September, 2002.
The Zhejiang Higher People's Court held that the main evidence of Pan's prosecution was the receipt issued by Li, the former director of a branch office, in the name of the branch office on September 1. According to the contents recorded in the receipt and Pan's statement, the reason why a branch borrowed from Pan at that time was to discount the face value of the bank acceptance bill, and Pan submitted the bill (copy) as evidence. It can be seen from the verified contents of the above draft and discount voucher that Zibo City Commercial Bank accepted the discount of the draft, and the holder of the draft was Qilu Petrochemical Co., Ltd. on the day when the receipt was issued, and the branch was not the holder of the draft, nor was it the discount bank that accepted the draft. Therefore, it can be considered that the reasons for borrowing recorded in the receipt are obviously fictitious. 200 1, 1 and Pan reported the situation to Yuyao Sub-branch on February 3, 2006, and in the statements of the first and second trial investigations in our hospital, they all claimed that Li presented the original and photocopy of the draft when he issued the "receipt", and submitted the draft (photocopy) as evidence to prove the reason for borrowing. In the same way, according to the above-mentioned identification and discount facts of the holder, Pan's statement about the reason why Li held the bill at that time and borrowed money from a branch was not established and was not adopted by our court.
In addition, regarding Pan's claim that he lent a branch office 6,543,800 yuan in cash, because Li, who issued the "IOU", has died, there is no other relevant evidence to confirm this part of the facts except Pan's own statement, and a branch office also denied it, and Pan failed to provide evidence to prove that a branch office has actually received the money to confirm it, so Pan's claim lacks factual basis, and our hospital will not adopt it. According to the spirit of Article 43 of China's General Principles of Civil Law, only the legal representative or other staff of an enterprise as a legal person can bear the responsibility for the disputes caused by the receipt issued by Li, the former director of a branch. The so-called behavior of performing duties includes the scope of duties and the behavior required by the legal representative or staff in the job activity itself.
According to the above reasons for borrowing money and the fact that a branch has not actually received the loan, combined with the general practice analysis of counter business operation of commercial banks, it is obvious that the possibility of borrowing money from Pan by a branch of Li Dai can be ruled out, and the act of issuing "receipt" can certainly not be regarded as the act of performing duties. The consequences of stealing the name of the unit shall be borne by the thief according to law, and have nothing to do with the stolen unit. To sum up, the reasons for appeal put forward by the Appellant's Sub-branch are valid, and the Appellee Pan's claim to ask the Sub-branch to return the loan of 6,543,800 yuan based on the Receipt lacks factual and legal basis, so our court will not support it according to law.
In addition, as far as this case is concerned, there are omissions in the seal management of a branch company. However, in view of the fact that whether the management negligence caused the loss of the appellee Pan in this case has not yet been determined, it does not belong to the scope of this case, so the responsibility of a branch company due to management negligence should not be dealt with in this case.
If the facts were unclear in the original judgment, the law was wrong. In accordance with the provisions of Paragraph 1 of Article 64 and Item 2 and Item 3 of Paragraph 1 of Article 153 of People's Republic of China (PRC) Civil Procedure Law, the civil judgment of Ningbo Intermediate People's Court (20065438+0) No.93 was revoked and Pan's claim was rejected.
Retrial judgment
On June 5, 2006, the Higher People's Court of Zhejiang Province made a civil judgment (2004) Zheminzaizi No.32.
After trial, the Higher People's Court of Zhejiang Province held that the receipt issued in the name of a branch on September 9, 200 1, 19 and stamped with the official seal of a branch stated that the bank acceptance bill of Panmou was received in cash 1 10,000 yuan, and the maturity date was 200/kloc-0, 65438+February 20, and was paid by the industry and commerce department.
Since a certain branch did not deny the authenticity of the official seal stamped on the receipt, it took the receipt as direct evidence to prove the existence of the loan relationship. According to the above meaning, it can be concluded that a certain branch received 6,543,800 yuan in cash from Pan. The original second trial found that the holder of the bill involved in this case was Qilu Petrochemical Co., Ltd., and on the day when the receipt was issued, Zibo Commercial Bank accepted the discount of the bill, and XXX Branch was not the holder of the bill, nor was it the discount bank that accepted the bill.
Accordingly, it can be concluded that the statement that Pan had seen the original draft at that time was false, but the falsity of the borrowing reason was not enough to deny the borrowing fact proved by the receipt. Therefore, Pan believes that the reason for applying for retrial is established, that is, "even if the proof of the reason for borrowing is not adopted, it will not become that the receipt is not adopted".
So-and-so branch denies the fact of borrowing and lending as evidenced by receipt on September 1 day, and should bear the burden of proof. A certain branch argued that there was no record of this entry and provided the corresponding account books. As far as the facts of off-balance-sheet business are concerned, its unilateral statement and account books are not enough to deny the loan relationship between Pan and a certain branch with receipts as evidence.
Regarding the 690,000 yuan withdrawn from Pan's passbook on September 20th, 20001year, a branch office thought that Pan had withdrawn it himself and provided the corresponding withdrawal voucher, but the payer's ID number on the withdrawal voucher was 330219541021022, which was not Pan's ID number. Because a sub-branch failed to check the payer's ID card when handling the withdrawal of large cash deposits from customers' passbooks, it was unable to confirm the payer of the money, so the sub-branch claimed that the deposit of 690,000 yuan was withdrawn by Pan, which was not supported by our hospital.
As the head of a certain department, Li Can represents a certain department. A certain branch believes that the act of Li, the person in charge, stamping the official seal to issue a receipt is a personal act rather than a job act, and cannot provide corresponding evidence to prove it. According to Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Economic Dispute Cases Suspected of Economic Crimes, "If the directly responsible person in charge of the unit and other directly responsible personnel sign an economic contract in the name of the unit, and some or all of the property obtained constitutes a crime, the unit shall be responsible for the consequences caused by the signing and performance of the economic contract, in addition to investigating the criminal responsibility of the perpetrator according to law. Should bear civil liability according to law. Even if Li signed the contract in the name of the company in his special personal capacity and took the property as his own, a branch company should still bear civil liability for the consequences caused by Li's signing and performance of the economic contract. The original second instance found that Li embezzled the name of the unit, and his behavior was at his own risk, lacking facts and legal basis, and should be corrected.
According to the provisions of Article 184, Article 153, Paragraph 1 (3) and Article 64, Paragraph 1 of the Civil Procedure Law of People's Republic of China (PRC), the judicial committee of our hospital decided to cancel the civil judgment of our hospital (2002) Zhejiang Law Zhong Min ZiNo. 108 and maintain the judgment of Ningbo Intermediate People's Court (200 1).