|
|
|
|
|
|
|
|
|
|
|
|
|
| Ten Cases Whose Judgments Are Pronounced in Court by the No. 4 Circuit Court of the Supreme People's Court | | 最高人民法院第四巡回法庭当庭宣判十大案例（2017年度） |
| (December 25, 2017) | | （2017年12月25日） |
| Up to December 23, 2017, the No. 4 Circuit Court of the Supreme People's Court has tried a total of 49 major civil and commercial cases, in which the judgments of 24 cases were pronounced in court, with the rate of judgment pronouncement in court of 48.98%. In order to summarize experience and lessons in a timely manner, improve the work level, and provide reference samples for practice and theory, upon collective discussion on the eighth meeting of presiding judges held by the No. 4 Circuit Court, ten representative cases are selected and released to the public. | | 截至2017年12月23日，最高人民法院第四巡回法庭共开庭审理重大民商事案件49件，其中24件当庭宣判，当庭宣判率48.98%。为了及时总结经验教训，提升工作水平，并为实务界和理论界提供参考样本，经第四巡回法庭第8次主审法官会议集体讨论，筛选出十个具有代表性的案例，向社会发布。 |
| Case No. 1 | | 案例一 |
| Appellant Zhejiang Kunlun Construction Group Co., Ltd. v. Appellant Anhui Xinbeifa Writing Instruments City Co., Ltd. (Case about disputes over a construction contract for a construction project) | | 上诉人浙江昆仑建设集团股份有限公司与上诉人安徽新贝发制笔城有限公司建设工程施工合同纠纷案 |
| (No. 25, [2017], Final, Civil Division, Supreme People's Court) | | 【（2017）最高法民终25号】 |
| [Case Briefing] | | 【案情简介】 |
| Anhui Xinbeifa Writing Instruments City Co., Ltd. (contractee, hereinafter referred to as “Xinbeifa Company”) and Zhejiang Kunlun Construction Group Co., Ltd. (contractor, hereinafter referred to as “Zhejiang Kunlun Company”) concluded a Construction Contract for a Construction Project, according to which Zhejiang Kunlun Company contracted the construction of the project of Anhui Xinbeifa Writing Instruments City. Since negotiation of both parties on the payment of project funds failed, Zhejiang Kunlun Company filed a lawsuit with the Higher People's Court of Anhui Province and requested the Court to order that Xinbeifa Company should pay it the project funds of CNY64.45599421 million and the corresponding interest thereof. The court of first instance rendered a judgment that Xinbeifa Company should pay Zhejiang Kunlun Company the project funds of CNY16,919,301.18 and the interest thereof. Both parties refused to accept the judgment of first instance and appealed. | | 安徽新贝发制笔城有限公司（以下简称新贝发公司）作为建设方与浙江昆仑建设集团股份有限责任公司（以下简称浙江昆仑公司）作为承包方签订了《建设工程施工合同》，约定浙江昆仑公司承包施工安徽新贝发制笔城工程。由于双方对支付工程款事宜协商未果，浙江昆仑公司起诉至安徽省高级人民法院，请求判令新贝发公司支付工程款6445.599421万元及相应利息。一审法院判令新贝发公司支付浙江昆仑公司工程款16919301.18元及其利息等。双方当事人均不服一审判决提起上诉。 |
| In the judgment of second instance, Xinbeifa Company was ordered to pay Zhejiang Kunlun Company the project funds of CNY16,232,783.38 and the interest thereof. | | 二审改判新贝发公司支付浙江昆仑公司工程款16232783.38元及利息。 |
| [Practice Summary] | | 【实务总结】 |
| Cases about disputes over construction contracts for construction projects concern projects funds of constructors. They are often related to wages of migrant workers and easily cause risks of social instability. Due to judicial authentication of construction costs, it usually takes quite a long time to try such cases and constructors wish to receive the project funds as soon as possible, which has raised more pressing requirements for judicial efficiency. A large amount of project funds is one feature of cases about disputes over construction contracts for construction projects. In general, construction costs require judicial authentication. Due to multiple project items in dispute and strong specialty, more difficulties are involved. Besides, engineering data and accounts in the payment of project funds are complicated. The pronouncement of judgments of this type of cases require the completion of account checks, review of engineering data, and consultation of professional questions in advance and it raises higher requirements for pretrial preparations and trial work. In the process of pretrial preparation, besides judge assistants' contact and communication with both parties in advance and effective completion of the preparatory work including exchange of new evidence, the most important preparatory work in these cases is learning of professional knowledge of architecture involved in items under dispute of both parties. By means of communication with authenticators, online search of data, and consultation with the relevant specialized persons, judges fully learn the relevant expertise knowledge and can make a professional judgment under the circumstance of clear facts. After the judgment of second instance was pronounced, both parties expressed their satisfaction. | | 建设工程施工合同纠纷案件关系到施工人的工程款，且多和农民工工资相联系，容易产生不稳定因素。而此类案件往往因工程造价司法鉴定导致审理时间较长，施工方希望早日拿到工程款，就对司法效率提出了更迫切的要求。但建设工程施工合同纠纷案件的特点是，工程款数额大，工程造价一般需经司法鉴定，争议的工程项目较多，专业性强，难度较大。工程资料及支付工程款的账目繁杂。选择这类案件当庭宣判，需要提前做好大量的账目核对、工程资料审阅、专业问题咨询等工作，对庭前准备及庭审工作提出了更高的要求。庭前准备过程中，除了由法官助理提前与双方当事人联系沟通，做好新证据交换等方面准备工作外，这类案件最主要的准备工作是需要针对当事人争议项目涉及的建筑专业知识进行学习了解，通过与鉴定人员沟通、网上查资料、咨询相关专业人员的途径对相关专业知识予以充分了解，在事实清楚的情况下即可做出专业的判断。二审宣判后，当事人双方均表示满意。 |
| This is the first case whose judgment was pronounced in court by the No. 4 Circuit Court of the Supreme People's Court. | | 本案是最高人民法院第四巡回法庭当庭宣判的第一个案件。 |
| Members of the Collegial Panel: Fang Jingang (undertaker), Liu Xuemei, and Liu Jingchuan | | 合议庭成员：方金刚（承办人） 刘雪梅 刘京川 |
| Date of pronouncement: March 27, 2017 | | 宣判时间：2017年3月27日 |
| Case No. 2 | | 案例二 |
| Appellant Nuclear Industry Jinhua Construction Engineering Company v. Appellant Xinyang Xinzhengyuan Real Estate Development Co., Ltd. (Case about disputes over a construction contract for a construction project) | | 上诉人核工业金华建设工程公司与上诉人信阳新政源房地产开发有限公司建设工程施工合同纠纷案 |
| (No. 3 [2017], Final, Civil Division, Supreme People's Court) | | 【（2017）最高法民终3号】 |
| [Case Briefing] | | 【案情简介】 |
| Xinyang Xinzhengyuan Real Estate Development Co., Ltd. (hereinafter referred to as “Xinzhengyuan Company”) and Nuclear Industry Jinhua Construction Engineering Company (hereinafter referred to as “Jinhua Company”) concluded a Construction Contract on the first-stage project of Impression Europe. Both parties agreed that the total construction costs of civil engineering and those of water and electricity installation calculated according to valuation methods were given discounts of (decreased by) 6% and 10%, which were the final settlement prices of the project. After the completion acceptance of the project involved, Xinzhengyuan Company paid CNY129.74 million. In the confirmation form of construction costs of the project involved concluded by both parties, the total construction costs of the project involved amounted to CNY151.97 million. Jinhua Company filed a lawsuit and requested the court to order that Xinzhengyuan Company should pay the decreased project funds of over CNY10.15 million, the project funds in arrears of over CNY28.56 million and the interest thereof as well as the fees for cooperation with fire-fighting engineering construction of over CNY210,000, and return the warranty deposits of over CNY4.86 million. Xinzhengyuan Company raised a counterclaim that Jinhua Company should bear the liquidated damages of CNY19.45 million for delayed completion, the liquidated damages of over CNY2.97 million for deferred handling of certificates, and the maintenance fee of CNY80,000. The Higher People's Court of Henan Province rendered a judgment that: Xinzhengyuan Company should pay Jinhua Company the project funds of over CNY20.71 million and the interest thereof and the fees for cooperation with fire-fighting engineering construction and contract management amounting to over CNY210,000; other claims of Xinhua Company and counterclaims of Xinzhengyuan Company should be dismissed. Both Xinhua Company and Xinzhengyuan Company appealed. | | 新政源公司与金华公司就印象欧洲一期工程签订《建设工程承包协议》，约定按计价办法计算的本工程土建总造价及水电安装总造价优惠（下浮）6%及10%为工程最终结算价。案涉工程竣工验收后，新政源公司已付款数额为12974万元。双方签订的案涉工程造价确认表中，确认案涉工程总造价为15197万元。金华公司起诉请求新政源公司支付下浮工程款1015余万元、拖欠工程款2856余万元及利息、消防配套费21余万元，退还质保金486余万元。新政源公司反诉请求金华公司承担延期交工违约金1945万元、延期办证违约金297余万元、维修费用8万元。河南高院判决：新政源公司支付给金华公司工程款2071余万元及利息、消防工程施工配合费及承包管理费21余万元；驳回金华公司的其他诉讼请求及新政源公司的反诉请求。金华公司、新政源公司均提起上诉。 |
| In the trial of second instance, upon pretrial conference and trial in court, both parties withdrew their appeals. | | 二审经过庭前会议及开庭审理，双方均撤回上诉。 |
| [Practice Summary] | | 【实务总结】 |
| This is a model case where, after the rules on pronouncement of judgments in court were interpreted, both parties separately withdrew their appeals. On the one hand, by holding a pretrial conference, the presiding judges reviewed the issues of the case, comprehensively examined evidence, fixed undisputed facts, and fully grasped the facts of case and application of law, and both parties also had clear expectations for litigation results. Therefore, the case had the basis for pronouncing the judgment in court. During the period, the judges also conducted a large amount of mediation work. Although no mediation agreement was finally reached, both parties' confrontational feelings were greatly mitigated, which made Jinhua Company apply for withdrawing its appeal at the beginning of the court trial on the second day; on the other hand, through open and transparent trial activities, the trial process of the case was subject to public and media supervision. Both parties were allowed to fully exercise their rights to proof and defense, which enhanced Xinzhengyuan Company's comprehension of fair trial of the case. When the chief judge decided to pronounce the judgment in court after declaring adjournment for review, Xinzhengyuan Company also selected withdrawal of its appeal, which resulted in the satisfactory settlement of the disputes lasting for many years. It turns out that the pronouncement of judgments in court has played positive roles in improving trial efficiency and preventing litigation delays. The attorney of Xinzhengyuan Company surnamed Wang said: “This case involves interests of 782 proprietors and lasts for more than seven years. The proprietors also expect the settlement of disputes as soon as possible. By taking it into account, upon deliberation, we agree to withdraw the appeal and the collegial panel also agrees with us. On behalf of my client and the proprietors, I would like to say thank you to judges.” | | 本案为释明当庭宣判规则后促使双方当事人分别撤回上诉的典型案例。一方面，通过召开庭前会议，主审法官梳理了案件的争议焦点，全面审核了证据，固定了无争议的事实，对案情及法律适用有了充分的把握，双方当事人也对诉讼结果有了清晰的预期，本案具备当庭宣判的基础。期间还做了大量的调解工作，虽然最终未达成调解协议，但极大地缓和了双方的对立情绪，使得金华公司在第二天开庭伊始就申请撤回上诉；另一方面，通过公开透明的庭审活动，将案件审理过程置于大众及媒体监督之下，给予双方充分行使举证及辩论权利，增强了新政源公司对案件得到公正判决的认识。当审判长宣布休庭评议后决定当庭宣判时，新政源公司亦选择了撤回上诉，使得历时多年的纠纷获得圆满的解决。事实证明，当庭宣判在提高庭审效率、防止诉讼拖延方面发挥了积极作用。新政源公司的代理律师王某说：“本案涉及782名业主的利益，历时七年多时间，业主们也很期盼尽快解决，考虑到这一点，我们经过商议，同意撤诉，合议庭也同意我们的意见。在这里，代表我的当事人，代表广大业主向法官们道一声感谢。” |
| Members of the Collegial Panel: Liu Xuemei (undertaker), Liu Chongli, and Fang Jingang | | 合议庭成员：刘雪梅（承办人）刘崇理 方金刚 |
| Date of Pronouncement: March 28, 2017 | | 宣判时间：2017年3月28日 |
| Case No. 3 | | 案例三 |
| Appellant Jintaoyuan Coal Charring Group Co., Ltd. v. Appellee Surnamed Chen and Defendant of Original Trial Surnamed Wei (Case about disputes over private lending) | | 上诉人金桃园煤焦化集团有限公司与被上诉人陈某、原审被告蔚某民间借贷纠纷案 |
| (No. 82 [2017], Final, Civil Division, Supreme People's Court) | | 【（2017）最高法民终82号】 |
| [Case Briefing] | | 【案情简介】 |
| On September 30, 2014, Wei issued to Chen an IOU, which specified that “Up to September 30, 2014, Wei has borrowed CNY176,212,000 in cash from Chen. From October 1, 2014, the interest of the principal of CNY130 million should be calculated at the daily rate of 3‰. Borrower: Wei and Guarantor: Jintaoyuan Company.” Chen claimed the payment of the money for multiple times, but all failed. Afterwards, he filed a lawsuit with the Higher People's Court of Shanxi Province against defendants Wei and Jintaoyuan Company. The Higher People's Court of Shanxi Province rendered a judgment that: Defendants Wei and Jintaoyuan Company should pay Chen the loan of CNY176,165,334 and the interest thereof. Jintaoyuan Company refused to accept the judgment of first instance and appealed. | | 蔚某于2014年9月30日向陈某出具的《借条》载明：“截止到2014年9月30日合计借到陈某现金人民币壹亿柒仟陆佰贰拾壹万贰仟元整。从2014年10月1日后，壹亿叁仟万元本金按照日息3‰计息。借款人：蔚某。担保人：金桃园公司”。陈某多次索款未果后以蔚某、金桃园公司为被告起诉至山西高院。该院判决：被告蔚某、金桃园公司偿还陈某借款176，165，334元并支付利息等。金桃园公司不服一审判决，提起上诉。 |
| In the judgment of second instance, item (1) of the civil judgment rendered by the Higher People's Court of Shanxi Province was modified to: defendant of original trial surnamed Wei and appellant Jintaoyuan Company should pay appellee surnamed Chen the loan of CNY141,165,334. | | 二审判决变更山西高院民事判决第一项内容为：原审被告蔚某、上诉人金桃园公司支付被上诉人陈某借款141，165，334元。 |
| [Practice Summary] | | 【实务总结】 |
| The major issue of this case was whether CNY46.212 million included the principal of CNY35 million and whether such principal of CNY35 million has been returned. The claims of both parties were supported by evidence to some extent, but no party has formed preponderant evidence. Considering that the fund transfers were completed through a party not involved surnamed Yu, the parties may be ordered to provide the relevant evidence or the people's court may investigate and collect evidence according to its functions. If this case was remanded to the original court for retrial and continued finding of the relevant facts, it totally followed the legal procedures. However, in this way, the settlement of disputes lasting for many years would be delayed for another one or two years, which went against the timely settlement of disputes. The collegial panel thus decided to conduct the mediation work of the parties to realize the closure of the case by mediation. Upon efforts of members of the collegial panel and judge assistants to both parties, appellee voluntarily abandoned the claim of CNY35 million. The agreement reached between the creditor and the guarantor did not impair the rights and interests of the principal debtor, which should be confirmed by the court. However, since the principal debtor did not appear in court, it was inappropriate to issue a mediation agreement. Therefore, a judgment was pronounced in court, the judgment was served in a timely manner, and both parties were satisfied. The pronouncement of judgment of this case in court has fully explained the following two points: First, all members of the collegial panel should be brought into full play in the court trial. The court trial is not the “one-man show” of the presiding judges. In each link from court investigation, argument to mediation, the members of the collegial panel should be immersed, divide work, and mutually collaborate and cooperate with each other, so as to ensure substantiation of court trial. Second, the combination of mediation and judgment may be realized in one case. The collegial panel may, according to the will of the parties, mediate one or more claims in the case. After a consensus is reached, such claims may be recorded in transcripts or even claims for which a mediation agreement has been reached may form an independent decision; for claims to which mediation is inappropriate or a consensus fails to be reached, a judgment should be directly rendered. On the premise of fully respecting the parties' procedural disposition right and substantial disposition right, mediation and judgment may absolutely go hand in hand in one case, which can better realize the organic unification of legal effects and social effects of dispute handling. | | 本案的主要争议焦点是借条中的4621.2万元是否包含3500万元本金以及该3500万元是否归还问题。双方主张均有一定证据支持，但各方尚未形成证据优势。鉴于双方资金往来均是通过案外人于某等支付，可以责令当事人提供有关证据或人民法院依职权调查取证。如将本案发回重审，由原审法院继续查清有关事实完全符合法律程序，但这样会使多年未结的纠纷又要拖延一至两年，不利于及时定分止争。合议庭遂决定做当事人的调解工作，力争调解结案。经合议庭成员、法官助理分头做双方工作，被上诉人自愿放弃3500万元的请求。债权人与担保人达成的协议未损害主债务人的权益，法院予以确认。但主债务人没有到庭，不宜出具调解书，遂以判决的形式，当庭宣判，及时发送了判决书，双方当事人均很满意。本案当庭宣判，充分说明了两点。第一，在庭审中要充分发挥合议庭所有成员作用。庭审不是主审法官的“独角戏”。从法庭调查、辩论到调解的每一个环节，合议庭成员均要全身心投入，分工协作，互相配合，确保庭审实质化。第二，在一个案件中可以实现调判结合。合议庭可以根据当事人的意愿，对案件中一个或一个以上的请求事项进行调解，达成一致后，记入笔录，甚至可以对达成调解协议的事项单独制做调解书；对不宜调解或达不成一致意见的请求事项，直接判决。在尊重当事人程序处分权和实体处分权的前提下，调解与判决两种方式在一个案件中完全可以并行不悖，更好地实现纠纷处理法律效果和社会效果的有机统一。 |
| Members of the Collegial Panel: Yang Lichu (undertaker), Liu Xuemei, Mei Fang | | 合议庭成员：杨立初（承办人）刘雪梅 梅芳 |
| Date of Pronouncement: March 30, 2017 | | 宣判时间：2017年3月30日 |
| Case No. 4 | | 案例四 |
| Appellant Henan Branch of China Huarong Asset Management Co., Ltd. v. Appellant Lijing Sub-branch of Zhujiang Branch of China Construction Bank Co., Ltd. (Case about disputes over repurchase of bills) | | 上诉人中国华融资产管理有限公司河南省分公司与上诉人中国建设银行股份有限公司珠海市分行丽景支行票据回购纠纷案 |
| (No. 313 [2017], Final, Civil Division, Supreme People's Court) | | 【（2017）最高法民终313号】 |
| [Case Briefing] | | 【案情简介】 |
| In 2003, for purposes of absorbing funds and seeking rewards for go-between, the then president of Lijing Sub-branch of Zhujiang Branch of China Construction Bank Co., Ltd. (hereinafter referred to as “Lijing Sub-branch”) surnamed Huang colluded with others in forging seals and certificates and concluded a Repurchase Contract with Huaxin Branch. Huaxin Branch paid CNY130 million as agreed, but Lijing Sub-branch failed to repurchase the bills as agreed, and the disputes in this case were arisen. After the creditor's rights involved were transferred to Henan Branch of China Huarong Asset Management Co., Ltd. (hereinafter referred to “Huarong Company”), Huarong Company filed a lawsuit with the court of first instance and requested the court to order that Lijing Sub-branch should pay it the principal of CNY 8.30480935 million and the interest thereof. The court of first instance rendered a judgment that Lijing Sub-branch should pay Huarong Company CNY30.868134 million. Both parties refused to accept the judgment and appealed. | | 2003年，中国建设银行股份有限公司珠海市分行丽景支行（以下简称丽景支行）时任行长黄某为吸收资金和谋取个人好处费，伙同他人伪造印章、证件，与华信支行签订《回购合同》，华信支行依约交付1.3亿元，但丽景支行未依约回购，由此引发本案纠纷。案涉债权转让给中国华融资产管理有限公司河南省分公司（以下简称华融公司）后，华融公司诉至一审法院，请求判令丽景支行赔偿华融公司本金6830.480935万元及利息。一审法院判决丽景支行赔偿华融公司3086.8134万元。双方均不服，提出上诉。 |
| In the judgment of second instance, the appeals of both parties were dismissed and the original judgment was affirmed. | | 二审判决：驳回上诉，维持原判。 |
[Practice Summary]
．．．．．． | | 【实务总结】
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥1000.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|