Publication date: 2016-12-20
Ningxia High People's Court of the Hui Autonomous Region
Civil Judgment
(2016) Ningmin Zhongzi No. 188
Appellant (Plaintiff of the first instance): Appellant (Plaintiff of the first instance) ): Industrial and Commercial Bank of China Co., Ltd. Shizuishan Branch. Residence: Shizuishan City, Ningxia Hui Autonomous Region: Shizuishan City, Ningxia Hui Autonomous Region.
Responsible person Wang Shaoyun: President of Shizuishan Branch of Industrial and Commercial Bank of China Co., Ltd.
Appointed litigation agent: Appointed litigation agent: Ding Huijun, lawyer at Ningxia Fude Law Firm.
Appellee (defendant): Ningxia Jinping Small Loan Co., Ltd. Residence: Ningxia Hui Autonomous Region: Residence: Shizuishan City, Ningxia Hui Autonomous Region.
Legal representative:
Legal representative: Li Suping, Chairman of Ningxia Jinping Small Loan Co., Ltd.
The entrusted litigation agent: Li Yaoqiang, Ningxia Intermediate People's Court: The entrusted litigation agent: Li Yaoqiang, a lawyer at Ningxia Zhonghe Zhong Law Firm.
The third person in the original trial: Shizuishan Jiapeng Industry and Trade Co., Ltd. Residence: Ningxia Hui Autonomous Region: Dawukou District, Shizuishan City, Ningxia Hui Autonomous Region.
Legal representative: Li Hu, Shizuishan Jiapeng Industry and Trade Co., Ltd.: Authorized agent: Li Hu, Shizuishan Jiapeng Industry and Trade Co., Ltd.
Entrusted litigation agent: Entrusted litigation agent: Yang Qiong, lawyer at Ningxia Zhihe Law Firm.
The entrusted litigation agent: Zhao Youru, a lawyer at Ningxia Zhihe Law Firm: The entrusted litigation agent: Zhao Youru, an attorney at Ningxia Dayuan Law Firm.
A labor dispute case between the appellant, Shizuishan Branch of Industrial and Commercial Bank of China Co., Ltd. (hereinafter referred to as ICBC Shizuishan Branch) and the appellee, Ningxia Jinping Small Loan Co., Ltd. (hereinafter referred to as Jinping Small Loan Company), The third party in the original trial, Shizuishan Jiapeng Industry and Trade Co., Ltd. (hereinafter referred to as Jiapeng Industry and Trade Co., Ltd.), an outsider in the case, objected to the execution objection action of the Ningxia Hui Autonomous Region Shizuishan Intermediate People's Court (2016) Ning 02 Minchu No. 9 Civil Judgment, Appeal to this Court. After the court filed the case on July 13, 2016, it formed a collegial panel in accordance with the law and held a hearing. The appellant, Industrial and Commercial Bank of China Shizuishan Branch, appointed agent ad litem Ding Huijun, the appellee Jinping Small Loan Company appointed agent ad litem Li Yaoqiang, and the third party in the original trial, Jiapeng Industry and Trade Company, appointed agent ad litem Yang Qiong to attend the court proceedings. The case has now been concluded.
The People’s Bank of China’s Shizuishan City Branch’s appeal request: 1. Request to revoke the first-instance judgment and change the judgment to support the appellant’s first-instance litigation request. 2. The case acceptance fee shall be borne by the appellee.
Facts and reasons: The court of first instance misunderstood the pursuit of domestic factoring business and only recognized the fact of the transfer of creditor's rights and failed to correctly confirm the appellant's pledge priority, resulting in an erroneous judgment to reject the appellant's claim. In this case, the appellant and a third party registered the pledge of accounts receivable in order to ensure the realization of the creditor's rights. The Shizuishan Intermediate People's Court, in the case of a dispute over the loan contract between the appellee and a third party, issued a judgment against the debtor Shenhua Ningxia Coal Industry Group. The accounts receivable recovered by the limited liability company were deducted, which violated the appellant's right to priority in repayment of the legitimate rights and interests of the accounts receivable.
Jinping Small Loan Company argued: The appellant’s grounds for appeal cannot be established. The priority claimed by the appellant is a conditional priority. First, the liability of Shenhua Ningxia Coal Industry Group Co., Ltd. determined in the factoring contract The second is the priority of the company's creditor's rights, the priority of the account funds ending in XXX as determined in the factoring contract. In this case, the court enforced the funds in the account ending with XX, not the funds in the XX account determined in the factoring contract. The funds in this account came from the payment for goods from Dawukou Coal Washing Plant and Liu Yundong and others, and were not the creditor's rights of Shenhua Ningxia Coal Industry Group Co., Ltd. Based on the above two points, the appellant’s right of priority cannot exclude the Shizuishan Intermediate People’s Court’s enforcement measures against the funds in ××’s account.
Therefore, the appellant’s grounds for appeal cannot be established, and the court of second instance is requested to reject the appellant’s appeal request in accordance with the law.
The third party in the original trial, Jiapeng Industry and Trade Company, argued that the facts stated by the appellant in the appeal existed objectively, and that the appellant and the third party had a legal relationship of factoring business and pledge of accounts receivable. The appellant has priority in receiving compensation for the funds involved in this case and requests the court of second instance to make a fair judgment in accordance with the law.
ICBC Shizuishan Branch requested the court of first instance: 1. Immediately stop the enforcement of 7,448,389 yuan of account funds of Jiapeng Industrial and Trading Company whose account number ends with The industrial and trading company’s account number ending with ×× has the priority right to receive repayment of 7,448,389 yuan; 3. The litigation costs of this case will be borne by Jinping Small Loan Company.
The court of first instance found the facts: On November 20, 2014, the Shizuishan Branch of the Industrial and Commercial Bank of China signed the "Domestic Factoring Contract" with Jiapeng Industry and Trade Company (the contract number is 2014 (EFR) 00019), stipulating that As a seller of goods, Jiapeng Industry and Trade Company applied to the Shizuishan Branch of the Industrial and Commercial Bank of China for domestic factoring business with recourse on the accounts receivable formed between the Shizuishan Branch of the Industrial and Commercial Bank of China and the buyer of the goods. The contract stipulates that the purpose of financing under the contract is to purchase raw coal. Jiapeng Industry and Trade Company will transfer the claims on accounts receivable and related rights to the Shizuishan Branch of the Industrial and Commercial Bank of China. After the Shizuishan Branch of ICBC examines and confirms the claims, it will issue the total amount to Jiapeng Industry and Trade Company. Provided factoring financing of RMB 7.4 million. Based on the sum of the factoring financing amounts corresponding to each accounts receivable invoice under the "Accounts Receivable List" and "Contract", factoring financing totaling RMB 7.4 million was issued to Jiapeng Industry and Trade Company. The actual withdrawal date and repayment date shall be subject to the IOU record, which is an integral part of this contract. Jiapeng Industry and Trade Company is responsible for collecting the accounts receivable under this contract and urging the purchaser to deposit the accounts receivable into the factoring account in a timely manner. The factoring account numbered 0378 opened by Jiapeng Industry and Trade Company at the Shizuishan Branch of the Industrial and Commercial Bank of China is used to collect the corresponding accounts receivable and deduct the principal and interest of factoring financing without the consent of the Shizuishan Branch of the Industrial and Commercial Bank of China. , Jiapeng Industry and Trade Co., Ltd. shall not withdraw any money from this account. Both parties also agreed on other rights and obligations. The contract is accompanied by a transfer list and detailed table of accounts receivable, which records that the actual amount of the accounts receivable invoice is 8566249.82 yuan, the repayment date of the accounts receivable is February 28, 2015, and the factoring financing amount is 7.4 million yuan. On November 20, 2014, the accounts receivable transfer business was registered with the Credit Information Center of the People's Bank of China. The registration form records: Transfer contract number 2014 (EFR) 00019, the value of the transferred property is 8566249.82 yuan, description of the transferred property: This business is domestic factoring, handled by the transfer of accounts receivable, and we agree to transfer the accounts receivable to our bank. Our bank will register the transfer of accounts receivable and retain the original VAT invoice and other contents. On the same day, ICBC Shizuishan Branch issued a loan of 7.4 million yuan to Jiapeng Industry and Trade Company. The loan voucher records that the loan amount is 7.4 million yuan, the deposit account number is ××, the term is 6 months, the agreed repayment date is May 15, 2015, and the loan interest rate is 7.84. On November 20, 2014, Jiapeng The industry and trade company issued the "Notice on the Transfer of Accounts Receivable Claims to Shenhua Ningxia Coal Industry Group Co., Ltd." and clarified that Jiapeng Industry and Trade Company and Shenhua Ningxia Coal Industry Group Co., Ltd. signed a "Domestic Factoring Business Contract". Peng Industry and Trade Company has transferred the claims and related rights on accounts receivable under the purchase and sale contract with Shenhua Ningxia Coal Industry Group Co., Ltd. to the factoring bank, and requires Shenhua Ningxia Coal Industry Group Co., Ltd. to promptly transfer the receivables as stipulated in the contract. The receivables were paid to the account of Jiapeng Industry and Trade Company with the last number 0378, and both Shenhua Ningxia Coal Industry Group Co., Ltd. and ICBC Shizuishan Branch stamped the notice for confirmation.
On November 20, 2014, ICBC Shizuishan Branch and Jiapeng Industry and Trade Company signed the "Accounts Receivable Pledge Registration Agreement", which stipulated that in order to ensure the realization of the main creditor's rights under the loan contract signed between ICBC Shizuishan Branch and Jiapeng Industry and Trade Company, The ICBC Shizuishan Branch signed a contract with Jiapeng Industry and Trade Company (No. 2014 (Domestic Factoring) No. 00019). The ICBC Shizuishan Branch handled the receivables under the above contract through the Accounts Receivable Pledge Registration and Publicity System of the Credit Information Center of the People's Bank of China. Account pledge registration. On July 2, 2015, during the execution process, the Shizuishan City Intermediate People's Court imposed sanctions on the person subject to execution, Jinping Small Loan Company, and the persons subject to execution, Wei Lidong, Li Hu, Liang Zhengdong, Chen Xingfu, Ningxia Weiyuan Industrial Group Co., Ltd., and Shizuishan City Dong. In the case of a loan contract dispute between Hong Co., Ltd., Shizuishan Donghong Industrial Co., Ltd. and Jiapeng Industry and Trade Co., Ltd., funds 7448398 were deducted from the account numbered 0502 opened by Jiapeng Industry and Trade Co., Ltd. at the Shizuishan Branch of the Industrial and Commercial Bank of China in accordance with the law. Yuan. ICBC Shizuishan Branch raised an objection to execution, and the Shizuishan Intermediate People's Court issued (2015) Shixi Yizi No. 29 Enforcement Ruling on December 30, 2015, ruling to reject its objection. On January 12, 2016, the Shizuishan Branch of ICBC filed a lawsuit against execution by a non-party to the Shizuishan Intermediate People’s Court. The court of first instance held that when a person outside the case files a lawsuit to object to execution, he should bear the burden of proof that he has civil rights and interests in the subject matter of execution that are sufficient to preclude compulsory execution. In this case, the "Domestic Factoring Business Contract" signed by ICBC Shizuishan Branch and Jiapeng Industry and Trade Company was the true intention of both parties, did not violate the mandatory provisions of laws and regulations, and was legal and valid. The contract stipulates that the two parties are engaged in domestic factoring business with recourse, that is, Jiapeng Industry and Trade Company transfers its rights to accounts receivable to ICBC Shizuishan Branch, and ICBC Shizuishan Branch provides accounts receivable to Jiapeng Industry and Trade Company. Financing and domestic factoring services. The two parties registered the transfer of accounts receivable at the Credit Information Center of the People's Bank of China and notified the debtor Shenhua Ningxia Coal Industry Group Co., Ltd. in accordance with the contract. The Shizuishan Branch of ICBC issued loan funds to Jiapeng Industry and Trade Company. Since the owner has changed to ICBC Shizuishan Branch after the transfer registration of accounts receivable, ICBC Shizuishan Branch is not allowed to set up a separate pledge for itself on its rights to accounts receivable. The Shizuishan Branch of ICBC and Jiapeng Industry and Trade Company formed a creditor's right rather than a property right. Although ICBC Shizuishan Branch and Jiapeng Industry and Trade Company signed an accounts receivable pledge contract and a pledge registration agreement, according to the provisions of the Property Law, when accounts receivable are pledged and the pledge is established, the credit institution handles the pledge registration, and both parties No pledge registration has been carried out. The pledge right claimed by ICBC Shizuishan Branch was not established, and it did not enjoy priority for repayment of the accounts receivable involved in the case. In summary, ICBC Shizuishan Branch does not enjoy civil rights that are sufficient to exclude the enforcement of funds withheld by the court. ICBC Shizuishan Branch requested to confirm that the account funds with the last number of Jiapeng Industry and Trade Company, 0502, have the priority to be reimbursed, and requested that the funds in the account be immediately stopped. The execution cannot be established. In accordance with Article 44 of the Contract Law of the People's Republic of China, Article 228 Paragraph 1 of the Property Law of the People's Republic of China, and Paragraph 3 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China Article 111, Article 312, Paragraph 1, Item (2) of the Civil Procedure Law of the People's Republic of China, the ruling was made to reject the plaintiff's claim of the Shizuishan Branch of Industrial and Commercial Bank of China Co., Ltd. Litigation request: The case acceptance fee of 100 yuan shall be borne by the plaintiff, Industrial and Commercial Bank of China Co., Ltd. Shizuishan Branch.
In the second trial, both parties did not submit new evidence.
The facts of the second instance were consistent with those of the first instance.
This court believes that according to the "Domestic Factoring Contract" signed between the Shizuishan Branch of the Industrial and Commercial Bank of China and Jiapeng Industry and Trade Company, both parties are handling domestic factoring business with recourse, and the identified debtor It is Shenhua Ningxia Coal Industry Group Co., Ltd., and the designated accounts receivable account number ends in xxx. In this case, the Shizuishan Intermediate People's Court enforced the account funds ending with XX, rather than the XX account funds determined in the factoring contract. The source of the account funds is not the creditor's rights of Shenhua Ningxia Coal Industry Group Co., Ltd.
The appellant claimed that it had the priority to be reimbursed for the pledge of the accounts receivable involved in the case. According to the provisions of the Property Law, if accounts receivable are pledged, the pledge rights are established when the accounts receivable are registered for pledge with the credit reporting agency, and both parties have not completed the pledge registration procedures. The right of pledge claimed by the appellant is not established, and the appellant does not enjoy the priority right to receive repayment of accounts receivable. Therefore, the appellant does not enjoy the civil rights and interests to exclude the payment from execution by the court.
To sum up, the appeal request of the Industrial and Commercial Bank of China Shizuishan Branch is untenable and should be rejected; the first-instance judgment found the facts clearly and applied the law correctly and should be upheld. In accordance with the provisions of Article 170, Paragraph 1, of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal is dismissed and the original judgment is upheld.
The second-instance case acceptance fee of 100 yuan shall be borne by the appellant, Industrial and Commercial Bank of China Co., Ltd. Shizuishan Branch.
This judgment is final.
Presiding Judge Li Fengying
Acting Judge Luo Weijiang
Acting Judge Ma Yue
September 9, 2016
Secretary Ye Minjuan