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Model Cases Involving Legal Supervision of Civil Proceedings and Enforcement Activities [Effective]
民事诉讼和执行活动法律监督典型案例 [现行有效]

Model Cases Involving Legal Supervision of Civil Proceedings and Enforcement Activities 


(Supreme People's Procuratorate October 25, 2018) (最高人民检察院 2018年10月25日)

I. Cases involving the supervision of adjudications   一、裁判结果监督案例
1. Procuratorate appeal concerning an overdue payment dispute between Trade Company (here and below, part of name withheld) and Industrial Company (here and below, part of name withheld). Trade Company brought an action stemming from payment due by Technology Company. The court entered a civil judgment in September 2006, ordering Technology Company to make a payment of more than 90,000 yuan. In October 2007, the administration for industry and commerce punished Technology Company (part of name withheld) by suspending its business license. Industrial Company, as a shareholder of Technology Company (part of name withheld), did not liquidate Technology Company. Technology Company disappeared, leaving no property available for enforcement. In July 2008, Trade Company requested an order that Industrial Company compensate for the payment, litigation costs and interest, on the grounds that after Technology Company had its business license suspended, Industrial Company, as its shareholder, failed to organize its liquidation according to the law and should be liable for damages. The court of first instance held that Industrial Company, as a shareholder of Technology Company, should set up a liquidation group to commence liquidation within 15 days from the date when Technology Company had its business license suspended and that although Industrial Company failed to fulfill the said obligation, Trade Company did not submit evidence that Industrial Company's slackness in performing the liquidation obligation caused the depreciation, loss, damage or destruction of company property. The court hence entered a judgment dismissing the claim of Trade Company. The intermediate court tried the case on appeal, and the higher court retried the case. Neither supported the claim of Trade Company on the same grounds. Trade Company applied for supervision to the procuratorial authority. The procuratorial authority appealed upon examination to the court in accordance with the law, and the primary grounds for the appeal were: (1) Industrial Company committed the conduct of slack performance of its liquidation obligation as provided for by the law. It, as a shareholder who had a 60% capital contribution to the Technology Company, failed to form a liquidation group to liquidate the Technology Company, within the time limit prescribed by the law, after the suspension of its business license. (2) Industrial Company' slackness in preforming its liquidation obligation resulted in the impossibility of liquidation. All the property, account books, and important documents, among others, of Technology Company could not be discovered. (3) The disappearance of Technology Company caused that the debts owed by Technology Company to Trade Company could not be paid. Based on the foregoing, creditor Trade Company had factual and legal basis for its lawful request that Industrial Company be liable for repayment. The court, having conducting another retrial, were satisfied of the procuratorial authority's appeal opinion and entered a judgment that Industrial Company be liable for repayment of the debts. The case, through the appeal by the procuratorial authority, further clarified the nature of the liability that the shareholders of a limited liability company assumed for payment and the criteria for determination of essential elements and is of guiding significance for how to correctly understand and apply the provisions of the law in relation to shareholders' responsibility for liquidation. 1.某工贸公司与某实业公司欠付货款纠纷抗诉案。某工贸公司因某科技公司欠付货款提起诉讼,法院于2006年9月作出民事判决,判令某科技公司给付货款9万余元。2007年10月,工商行政管理部门对某科技公司作出吊销营业执照的处罚。某实业公司作为某科技公司的股东之一,未对某科技公司进行清算。某科技公司下落不明,无财产可供执行。2008年7月,某工贸公司以某科技公司被吊销营业执照后,某实业公司作为股东未依法组织清算,应当承担赔偿责任为由,请求判令某实业公司赔偿货款、诉讼费及利息。一审法院认为,某实业公司作为某科技公司的股东,应当在某科技公司被吊销营业执照之日起十五日内成立清算组开始清算,虽然某实业公司未履行上述义务,但某工贸公司未提交证据证明某实业公司怠于履行清算义务造成了公司财产的贬值、流失、损毁或者灭失,故判决驳回某工贸公司的诉讼请求。该案经中级法院二审、高级法院再审,均以同样理由未予支持某工贸公司的诉讼请求。某工贸公司向检察机关申请监督。检察机关经审查后依法向法院提出抗诉,抗诉理由主要为:第一,某实业公司存在怠于履行法律规定的清算义务的行为。作为占公司出资额60%的股东,在某科技公司被吊销营业执照后,未在法律规定的期限内成立清算组对公司进行清算。第二,某实业公司怠于履行清算义务的行为导致已无法进行清算,某科技公司的所有财产、账册、重要文件等均下落不明。第三,由于某科技公司下落不明,致使某工贸公司对某科技公司的债权无法得到清偿。综上,债权人某工贸公司依法要求某实业公司承担清偿责任,具有事实和法律依据。法院进行再审后,采纳了检察机关的抗诉意见,判决某实业公司对某科技公司的债务承担清偿责任。该案通过检察机关的抗诉,进一步明确了有限责任公司股东清偿责任的性质及构成要件的认定标准,对实践中如何正确理解和适用股东清偿责任的法律条文具有指导意义。
2. Procuratorate appeal concerning an equity confirmation dispute between Mao Juan (here and below, part of given name withheld) and Mao Hui (here and below, part of given name withheld). In August 2005, Huang (here and below, given name withheld), Mao Juan and Mao Hui respectively contributed 1.274 million yuan, 500,000 yuan and 290,000 yuan, amounting to 2.064 million yuan, intended for development of a project. Huang first used such funds to bid with another person for the right to use state land for Residential Community (here and below, part of name withheld) and became a contractor for the land in his own name. Later, the three persons decided to set up Real Estate Development Company (part of name withheld, hereinafter referred to as the "Real Estate Company"). The minutes of the shareholders' meeting, bylaws, investment verification documents, and company registration established that the three persons jointly invested 8 million yuan, of which Huang contributed 6 million yuan, accounting for 75 %, and Mao Juan and Mao Hui each contributed 1 million yuan, each accounting for 12.5%. The Real Estate Company acquired the land by transfer from the land and resources bureau. Huang believed that Mao Juan and Mao Hui were not the true shareholders of Real Estate Company and should not enjoy shareholder rights. In June 2012, Mao Juan and Mao Hui sued Huang and Real Estate Company, requesting a confirmation of the equities that the two persons respectively held in Real Estate Company and the original development for Residential Community. The court entered a first instance judgment in April 2013, holding that although Mao Juan and Mao Hui had received funds and properties from the company, they were not divested of their equities in Real Estate Company, confirming that Mao Juan and Mao Hui each had a 12.5% stake in Real Estate Company. Huang and Real Estate Company appealed, and the court of second instance dismissed the appeal and affirmed the original judgment. Huang applied for a retrial and requested an order that he be entitled to a 100% stake in Real Estate Company. The court entered a retrial judgment in January 2015, holding that Mao Juan and Mao Hui did not contribute in cash, their capital contributions when bidding for the right to use the land should be their actual capital contribution, and Mao Juan and Mao Hui respectively contributed 500,000 yuan and 290,000 yuan, accounting for 6.25% and 3.625% of the 8 million yuan registered capital of Real Estate Company, confirming that the two persons respectively had a stake of 6.25% and 3.625%. The two persons applied for supervision to the procuratorial authority. The procuratorial authority held upon examination that the retrial judgment confused the two concepts: contribution to land procurement and contribution to company establishment and that the application of law was erroneous when the equities in the company were determined based on the actual contributions by the shareholders, and it thus appealed to the court. The court entered a final judgment in June 2018, holding that all shareholders of a limited liability company might agree that equities were not in proportion to the actual capital contributions and the application of law was erroneous when equities were determined by the actual ratio of contributions, setting aside the retrial judgment, and affirming the second instance judgment. 2.毛某娟、毛某辉股权确认纠纷抗诉案。2005年8月,黄某、毛某娟、毛某辉分别出资127.4万元、50万元、29万元共206.4万元,拟进行项目开发。黄某先以该资金与他人共同竞拍某小区的国有土地使用权,又以自己名义承包该地。此后,三人决定设立某房地产开发有限公司(下称房地产公司),股东会议纪要、公司章程、验资证明、公司登记均确认三人共同出资800万元,其中黄某出资600万元,占75%;毛某娟、毛某辉各自出资100万元,各占12.5%。此后,房地产公司从国土资源局受让该地。后黄某认为毛某娟、毛某辉不是房地产公司真正股东,不应享有股东权利。2012年6月,毛某娟、毛某辉起诉黄某和房地产公司,请求确认二人分别持有房地产公司及其名下原某小区开发项目的股权份额。法院于2013年4月作出一审判决,认为虽然毛某娟、毛某辉已从公司领取了资金及房产,并不表示其已丧失其在房地产公司的股权份额,确认毛某娟、毛某辉各自拥有房地产公司12.5%的股权。黄某、房地产公司上诉,二审法院驳回上诉,维持原判。黄某申请再审,请求判令其享有房地产公司100%的股权。法院于2015年1月作出再审判决,认为毛某娟、毛某辉没有以现金出资,应按其在竞买土地使用权时的出资作为实际出资,毛某娟、毛某辉分别出资50万元和29万元,分别占房地产公司注册资金800万元的6.25%和3.625%,确认二人持股份额分别为6.25%、3.625%。二人向检察机关申请监督。检察机关经审查认为,再审判决混淆了购买土地出资与设立公司出资两个不同的概念,按股东各自实际出资额确认公司股权适用法律错误,遂向法院提出抗诉。法院于2018年6月作出终审判决,认为有限公司的全体股东可以约定不按实际出资比例持有股权,以实际出资比例确定股权份额适用法律错误,判决撤销再审判决,维持二审判决。
II. Cases involving the supervision of sham actions   二、虚假诉讼监督案例
1. Guo (here and below, given name withheld) et al. fraudulently obtaining provident funds by sham action. In April 2018, the County Procuratorate (here and below, part of county name withheld) in Heilongjiang province discovered when handling cases that more than 100 mediation cases with housing provident funds as the object of enforcement in the county court had the characteristics of agreed jurisdiction, docketing and closing on the day, loan documents as the only evidence, and a lack of remittance acknowledgment. As investigated, Guo, in order to achieve the purpose of helping others fraudulently obtain provident funds and profiting therefrom, published an advertisement through WeChat groups and moments that the withdrawal of provident funds could be facilitated. Many people contacted Guo to withdraw provident funds after seeing the advertisement. Guo brought actions by false obligation due him in the court in the name of himself, his daughter, son-in-law, and other persons. When the court issued a mediation agreement, it was used to enforce the other party' housing provident funds. From July 2017 to April 2018, Guo helped 128 people fraudulently obtain more than 6.2 million yuan and received a profit of more than 400,000 yuan. The county procuratorate held upon examination that Guo, in order to achieve the purpose of illegally collecting provident funds, colluded with others in bad faith in falsifying evidence and the facts of borrowing, causing the court to enter erroneous civil mediation agreements and that his conduct not only obstructed the judicial order, but also seriously undermined the administrative order of housing provident funds. It decided to issue a procuratorial recommendations for retrial to the court and proposed for setting aside the 128 civil mediation agreements with respect to which Guo and others were suspected of sham actions. After receiving the procuratorial recommendations for retrial, the county court decided, upon discussion by the judicial committee, to conduct a retrial. To date, forty two cases have been concluded, each with the supervisory opinions of the procuratorial authority satisfied. The remaining cases are under trial. 1.郭某等人通过虚假诉讼套取公积金案。2018年4月,黑龙江某县检察院在办案中发现,该县法院上百起以住房公积金为执行标的的调解案件,均具有约定管辖、当天立案当天结案、证据只有借款凭证无转账证明等特点。经调查,郭某为了达到帮助他人套取公积金并从中牟利的目的,通过微信群和朋友圈发布能够提取公积金的广告,多人看到广告后与其联系提取公积金。郭某以自己及其女儿、女婿等人的名义,用虚构的债权向法院提起诉讼,由法院出具调解书,再用调解书执行对方当事人住房公积金。2017年7月至2018年4月,郭某先后为128人套取公积金620万余元,本人获利40万余元。县检察院审查认为,郭某为达到违法套取公积金的目的,与他人恶意串通,伪造证据,虚构借款事实,致使法院作出错误的民事调解书,其行为不仅妨碍司法秩序,还严重破坏了住房公积金管理秩序,决定向法院发出再审检察建议,建议撤销郭某等人涉嫌虚假诉讼的128份民事调解书。县法院收到再审检察建议后,经审委会讨论决定再审,现已审结42件,均采纳了检察机关的监督意见,其余案件正在审理中。
2. A series of sham actions by Wang Fu (here and below, part of given name withheld) et al. for "payment of debts with properties." At the beginning of 2014, a local court referred the materials regarding a series of suspicious sham actions for "payment of debts with properties" to the procuratorial authority. The procuratorial authority, having conducted an examination, ascertained the following: At the beginning of 2012, Wang Jun (here and below, part of given name withheld), manager of Business Consulting Company (part of name withheld), was acquainted with judges Wang Fu, Wang Jiang (here and below, part of given name withheld) and Zhou Feng (here and below, part of given name withheld) from the court in City (here and below, part of city name withheld). Wang Jun procured a large quantity of information on commissioned ownership transfer registration of second commercial housing from housing agencies and colluded with legal worker Zhou (here and below, given name withheld) in falsifying a complete set of materials such as loan agreement, power of attorney, mediation agreement, and materials evidencing the jurisdiction of the municipal court. From September 2012 to November 2013, Wang Jun and Zhou applied, respectively in the capacity of the attorney for the plaintiff and that for the defendant, to the municipal court for judicial confirmation. Wang Jun explicitly informed the three judges of the falsification of all the aforesaid litigation materials and the objective of the application for judicial confirmation. Wang Fu and Wang Jiang prepared 60 copies of civil mediation agreements by directly using the case numbers of other cases or falsifying case numbers, without registering acceptance and case docketing or conducting a trial. Zhou Feng prepared 18 copies of mediation agreements after registering acceptance, affixed court seal to them without permission, and handed them over to Wang Jun, who helped 78 second-home purchaser register property ownership transfer in District (here and below, part of district name withheld) in a city of another province. In June 2013, the District's housing and construction commission required that ownership transfer registration be made only if the court's civil judgment was provided and the court conducted enforcement. At the request of Wang Jun, Wang Fu and Wang Jiang falsified 13 copies of civil judgments and 13 copies of enforcement rulings by using the case numbers of other cases or falsifying case numbers, affixed court seal to them without permission, and, with judicial police officer Shi Min (here and below, part of given name withheld), had the ownership transfer of 13 properties registered in the district. Wang Fu, Wang Jiang, and Shi Min accepted the banquets, free travel and other services provided by Wang Jun, and Wang Fu received a bribe of 70,000 yuan from Wang Jun. The property buyers who obtained certificates each paid 50,000 yuan to Wang Jun in gratitude. The procuratorial authority filed a case for investigation against five persons including Wang Fu for alleged crimes of adjudication by bending the law, bribery, negligence of duties, and abuse of power, among others, and each was criminally punished. In May 2014, the City Procuratorate delivered procuratorial recommendations to the city's court, recommending the revocation of 78 false mediation agreements and proposing for setting aside rulings in favor of the enforcement of 13 false judgments. The procuratorate filed an appeal against 13 false civil judgments. 2.王某福等人“以房抵债”系列虚假诉讼案。2014年初,某地法院将系列“以房抵债”涉嫌虚假诉讼材料移送检察机关。检察机关审查查明:2012年初,某商业咨询有限公司经理王某军因与某市法院法官王某福、王某江、周某峰很熟,遂从房屋中介公司收集大量购买二套商品房委托办理过户的信息,与法律工作者周某串通,共同伪造了借款协议、委托代理书、调解协议以及证明该市法院有管辖权的证明资料等全套材料,于2012年9月至2013年11月,分别以原、被告诉讼代理人身份,向该市法院申请司法确认。王某军明确告知三名法官上述诉讼材料均系伪造及申请司法确认的目的。王某福、王某江在未办理受理立案登记、未经审理的情况下,直接套用其他案件的案号或虚设案号制作民事调解书60份;周某峰在办理受理登记后制作18份调解书,私自加盖院印后,交给王某军到外省市某区帮助78户二套房购买人办理了房产过户登记。2013年6月,该区住建委要求提供法院民事判决书且由法院执行才能办理过户。应王某军的要求,王某福、王某江套用其他案件案号或虚设案号,伪造13份民事判决书、13份执行裁定书,私自加盖院印,与司法警察施某民一起到外省市办理了13套房屋产权过户。王某福、王某江、施某民接受王某军吃请、提供的免费旅游等服务,王某福收受王某军贿赂7万元。取得办证的买房人分别给王某军各5万元感谢费。检察机关分别以涉嫌民事枉法裁判罪和受贿罪、玩忽职守罪、滥用职权罪等对王某福等5人立案侦查,5人均受到刑事处罚。2014年5月,某市检察院向该市法院发出检察建议,建议撤销78份虚假调解书;针对13件虚假判决书的执行发送检察建议,建议撤销执行裁定。检察机关对13份虚假民事判决提出了抗诉。
...... ......

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