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| Notice by the Supreme People's Procuratorate of Issuing the Fourteenth Group of Guiding Cases of the Supreme People's Procuratorate | | 最高人民检察院关于印发最高人民检察院第十四批指导性案例的通知 |
| The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: | | 各省、自治区、直辖市人民检察院，解放军军事检察院，新疆生产建设兵团人民检察院： |
| As decided at the 17th session of the Thirteenth Procuratorial Committee of the Supreme People's Procuratorate on April 22, 2019, five guiding cases (SPP Cases No. 52 through 56) including the False Action Supervision Case Where Guangzhou B Real Estate Company (here and below, partial name withheld) et al. Fraudulently Obtained an Order of Payment for Enforcement are hereby issued as the fourteenth group of guiding cases which shall apply mutatis mutandis. | | 经2019年4月22日最高人民检察院第十三届检察委员会第十七次会议决定，现将广州乙置业公司等骗取支付令执行虚假诉讼监督案等五件指导性案例（检例第52-56号）作为第十四批指导性案例发布，供参照适用。 |
| Supreme People's Procuratorate | | 最高人民检察院 |
| May 21, 2019 | | 2019年5月21日 |
| False Action Supervision Case Where Guangzhou B Real Estate Company et al. Fraudulently Obtained an Order of Payment for Enforcement | | 广州乙置业公司等骗取支付令执行虚假诉讼监督案 |
| (SPP Case No. 52) | | （检例第52号） |
| [Keywords] | | 【关键词】 |
| Fraudulent obtainment of an order of payment, embezzlement of state assets, procuratorial recommendations | | 骗取支付令 侵吞国有资产 检察建议 |
| [Key Point] | | 【要旨】 |
| A false action occurs when parties defraud the court of an order of payment by maliciously colluding and falsifying debts, conspire to reach a settlement in the process of enforcement, embezzle state assets by means of paying debts in kind, and disrupt the judicial order. The procuratorial authorities shall supervise such cases in accordance with the law, maximize their function of legal supervision, maintain the judicial order, and protect state assets. | | 当事人恶意串通、虚构债务，骗取法院支付令，并在执行过程中通谋达成和解协议，通过以物抵债的方式侵占国有资产，损害司法秩序，构成虚假诉讼。检察机关对此类案件应当依法进行监督，充分发挥法律监督职能，维护司法秩序，保护国有资产。 |
| [Basic Facts] | | 【基本案情】 |
| In 2003, A Agriculture, Industry and Commerce Company, a state-owned enterprise, was sued in the court for its default on a bank loan, and its bank account was seized. In order to transfer the assets of A Agriculture, Industry and Commerce Company and its subsidiary(ies), the management of A Agriculture, Industry and Commerce Company contributed capital in individual name and established Guangzhou B Real Estate Company on May 26, 2003. Zhang A (here and below, given name withheld), the manager of A Agriculture, Industry and Commerce Company, acted as the chairman of B Real Estate Company, and the other members of the management acted as the shareholders or management of the company. | | 2003年起，国有企业甲农工商公司因未按期偿还银行贷款被诉至法院，银行账户被查封。为转移甲农工商公司及其下属公司的资产，甲农工商公司班子成员以个人名义出资，于2003年5月26日成立广州乙置业公司，甲农工商公司经理张某任乙置业公司董事长，其他班子成员任乙置业公司股东兼管理人员。 |
| On June 23, 2004 and February 20, 2005, B Real Estate Company signed a loan agreement respectively with borrowers C Industrial Company and D Orchard, the subsidies of A Agriculture, Industry and Commerce Company, for an amount of 2.51846 million yuan and 16 million yuan. C Industrial Company mortgaged its proprietary property(ies) as security for the loan. B Real Estate Company neither had proprietary working capital nor proprietary business. The funds it lent mainly came from the funds whose custody A Agriculture, Industry and Commerce Company entrusted it. | | 2004年6月23日和2005年2月20日，乙置业公司分别与借款人甲农工商公司下属丙实业公司和丁果园场签订金额为251.846万元和1600万元的借款协议，丙实业公司以自有房产为借款提供抵押担保。乙置业公司没有自有流动运营资金和自有业务，其出借的资金主要来源于甲农工商公司委托其代管的资金。 |
| When C Industrial Company borrowed, A Agriculture, Industry and Commerce Company had wealth management funds of 13,893,401.67 yuan at its disposal in the custody of B Real Estate Company. However, A Agriculture, Industry and Commerce Company did not use the wealth management funds, but permitted C Industrial Company, its subsidiary, to borrow by mortgaging its property(ies). As for the borrowing of D Orchard, it credited the proceeds of the loan of 16 million yuan as "payments or receipts" to the account of a nonparty within one to three days after their receipt, and the nonparty then gave the same amount of funds to B Real Estate Company by means of bank transfer within five days. | | 丙实业公司借款时，甲农工商公司在乙置业公司已经存放有13893401.67元理财资金可以调拨，但甲农工商公司未调拨理财资金，反而由下属的丙实业公司以房产抵押的方式借款。丁果园场借款时，在1600万元借款到账的1-3天内便以“往来款”名义划付到案外人账户，案外人又在5天内通过银行转账方式将等额资金划还给乙置业公司。 |
| When the foregoing loans became due, B Real Estate Company immediately moved the Baiyun District People's Court of Guangzhou City for an order of payment and requested payment of the loans. On September 6, 2004, the court made the Order of Payment (No. 23 [2004], Supervision, Civil Division II, Baiyuan Court), enjoining C Industrial Company to perform its obligation to pay. On November 9, 2005, the court made the Order of Payment (No. 16 [2005], Supervision, Civil Division II, Baiyuan Court), enjoining D Orchard to perform its obligation to pay. C Industrial Company and D Orchard raised no objection and quickly reached a settlement as to payment of debts with the property(ies) with B Real Estate Company in the process of enforcement. On October 11, 2004, C Industrial Company and B Real Estate Company signed a settlement and paid the debt of 2.51846 million yuan with its proprietary property(ies). C Industrial Company also voluntarily gave its 36 proprietary properties as security for the enforcement of the loans owed by D Orchard. In February and April 2006, the court ruled that the property(ies) of D Orchard at an appraised value of 6.117212 million yuan and the properties given as security by C Industrial Company at an appraised value of 3.969387 million yuan be given to B Real Estate Company in the payment of debts in kind. | | 上述借款到期后，乙置业公司立即向广州市白云区人民法院申请支付令，要求偿还借款。2004年9月6日，法院作出（2004）云法民二督字第23号支付令，责令丙实业公司履行付款义务；2005年11月9日，法院作出（2005）云法民二督字第16号支付令，责令丁果园场履行付款义务。丙实业公司与丁果园场未提出异议，并在执行过程中迅速与乙置业公司达成以房抵债的和解协议。2004年10月11日，丙实业公司与乙置业公司签署和解协议，以自有房产抵偿251.846万元债务。丙实业公司还主动以自有的36栋房产为丁果园场借款提供执行担保。2006年2月、4月，法院先后裁定将丁果园场的房产作价611.7212万元、丙实业公司担保房产作价396.9387万元以物抵债给乙置业公司。 |
| After the case arose, the entity overseeing A Agriculture, Industry and Commerce Company commissioned an assessment on September 10, 2013. According to the assessment report, on the assessment benchmark day which was the day when the court ruled in favor of payment of debts in kind, the appraised value of the case-related properties amounted to about 109 million yuan, about 96.4 million yuan higher than the price at which the court ruled in favor of payment of debts in kind, and state assets sustained serious damage. | | 案发后，甲农工商公司的主管单位于2013年9月10日委托评估，评估报告显示，以法院裁定抵债日为评估基准日，涉案房产评估价值合计1.09亿余元，比法院裁定以物抵债的价格高出9640万余元，国有资产受到严重损害。 |
| [Supervision by the Procuratorial Authority] | | 【检察机关监督情况】 |
| Discovery of Clues: In April 2016, the People's Procuratorate of Guangdong Province discovered in the process of handling the criminal case involving corruption and bribery of Zhang A, the manager of A Agriculture, Industry and Commerce Company, that B Real Estate Company might fraudulently obtain the order of payment and embezzle state assets and referred the clues to the case to the People's Procuratorate of Guangzhou City. The People's Procuratorate of Guangzhou City instituted the supervisory procedure in accordance with its authority and established a task force with the Baiyun District People's Procuratorate to jointly handle the case. | | 线索发现 2016年4月，广东省人民检察院在办理甲农工商公司经理张某贪污、受贿刑事案件的过程中，发现乙置业公司可能存在骗取支付令、侵吞国有资产的行为，遂将案件线索交广州市人民检察院办理。广州市人民检察院依职权启动监督程序，与白云区人民检察院组成办案组共同办理该案。 |
| Investigation and Verification: The task force accessed the court's file on the order of payment and enforcement case and discovered upon examination that the statement on facts of loans and other issues by B Real Estate Company in the process of action was highly consistent with that by C Industrial Company and D Orchard; the three parties voluntarily and quickly reached a settlement on payment of debts in kind, and there lacked the adversary nature of ordinary action; according to the findings of the examination of the criminal file on the corruption and bribery of Zhang A, the members of the management of A Agriculture, Industry and Commerce Company and B Real Estate Company had subjective intention to conspire and embezzle state assets; according to the findings of the examination of information on industrial and commercial registration, B Real Estate Company did not have proprietary funds, and its funds were the funds of A Agriculture, Industry and Commerce Company in its custody; and the bank statements accessed verified the movement of the proceeds of the loans. The task force gradually discovered the facts of the case following the transfer of case-related funds and properties, conducted another interview with case-related persons, and finally took a statement from Zhang A and others to further consolidate evidence. | | 调查核实 办案组调取法院支付令与执行案件卷宗，经审查发现，乙置业公司与丙实业公司、丁果园场在诉讼过程中对借款事实等问题的陈述高度一致；三方在执行过程中主动、迅速达成以物抵债的和解协议，而缺乏通常诉讼所具有的对抗性；经审查张某贪污、受贿案的刑事卷宗，发现甲农工商公司、乙置业公司的班子成员存在合谋串通、侵吞国有资产的主观故意；经审查工商登记资料，发现乙置业公司没有自有资金，其资金来源于代管的甲农工商公司资金；经调取银行流水清单，核实了借款资金流转情况。办案组沿涉案资金、房产的转移路径，逐步厘清案情脉络，并重新询问相关涉案人员，最终获取张某等人的证言，进一步夯实证据。 |
| Supervisory Opinions: On October 8, 2016, the Baiyun District People's Procuratorate issued two Procuratorial Recommendations (No. 4 and 5 [2016], Supervision, Civil (Administrative) Violation, Procuratorate, Baiyun, Hui) with respect to the two aforesaid orders of payment of the Baiyun District People's Court, stating that B Real Estate Company, C Industrial Company and D Orchard maliciously colluded to falsify debts, defraud the court of the orders of payment, and embezzle state assets by the enforcement settlement procedure and disrupted the normal judicial order, recommending that the court cancel the case-related orders of payment. | | 监督意见 2016年10月8日，白云区人民检察院就白云区人民法院前述两份支付令分别发出穗云检民（行）违监（2016）4号、5号检察建议书，指出乙置业公司与丙实业公司、丁果园场恶意串通、虚构债务，骗取法院支付令，借执行和解程序侵吞国有资产，损害了正常司法秩序，建议法院撤销涉案支付令。 |
| Supervisory Results: On May 15, 2018, the Baiyun District People's Court entered Civil Rulings (No. 1 and 2 [2018], Supervision, Urging, Civil Division, 0111, Yue), respectively confirming the error in the case-related orders of payment above, ruling them to be revoked, rejecting the motion for an order of payment from B Real Estate Company. In October, the same year, the Baiyun District People's Court effected restitution by the effective rulings. The loss of state assets of more than 109 million yuan was recovered. The People's Procuratorate of Guangzhou City had filed a public prosecution against Zhang A and other former members of the management of A Agriculture, Industry and Commerce Company for alleged crimes of corruption and bribery. | | 监督结果 2018年5月15日，白云区人民法院作出（2018）粤0111民督监1号、2号民事裁定书，分别确认前述涉案支付令错误，裁定予以撤销，驳回乙置业公司的支付令申请。同年10月，白云区人民法院依据生效裁定执行回转，至此，1.09亿余元的国有资产损失得以挽回。甲农工商公司原班子成员张某等人因涉嫌犯贪污罪、受贿罪，已被广州市人民检察院提起公诉。 |
| [Guiding Significance] | | 【指导意义】 |
| 1. As fraudulently obtaining orders of payment by falsifying debts has become a form of false civil actions, legal supervision shall be strengthened. The procedure for urging debt payment as provided in the Civil Procedure Law is intended to enable creditors to obtain enforcement basis and resolve disputes conveniently and efficiently. In judicial practice, some parties take advantage of the characteristics that courts mainly conduct formal examinations when issuing orders of payment, rendering discovery of substantial problems difficult and maliciously collude to falsify debts, fraudulently obtain orders of payment for enforcement, and invade the lawful rights and interests of other parties to civil legal relations. In this case, B Real Estate Company, C Industrial Company and D Orchard maliciously colluded and falsified debts to present motions for orders of payment, which constituted a false action. Since courts only conduct formal examination of the facts and evidence provided by the parties, instead of instituting legal proceedings, before issuing an order of payment, false action cases involving fraudulent obtainment of an order of payment are usually unnoticeable, and the procuratorial authorities shall strengthen supervision of such cases and maximize their legal supervision function. | | 1. 虚构债务骗取支付令成为民事虚假诉讼的一种表现形式，应当加强法律监督。民事诉讼法规定的督促程序，旨在使债权人便捷高效地获得强制执行依据，解决纠纷。司法实践中，有的当事人正是利用法院发出支付令以形式审查为主、实质问题不易被发现的特点，恶意串通、虚构债务骗取支付令并获得执行，侵害其他民事主体的合法权益。本案乙置业公司与丙实业公司、丁果园场恶意串通、虚构债务申请支付令，构成虚假诉讼。由于法院在发出支付令时无需经过诉讼程序，仅对当事人提供的事实、证据进行形式审查，因此，骗取支付令的虚假诉讼案件通常具有一定的隐蔽性，检察机关应当加强对此类案件的监督，充分发挥法律监督职能。 |
| 2. False action cases shall be handled with a focus on examining falsification of facts. For a false action, civil proceedings are usually instituted by false facts, and the procuratorial authorities shall carry out investigation and verification work with the foregoing as the priority. In the process of handling the case, the task force obtained a good understanding of the facts of the case by accessing the file on criminal case of Zhang A and took the fixed evidence in the criminal case as a starting point to handle the case; by focusing on examination of the enterprise legal person business license, bylaws, application for company registration, resolutions of the shareholders' meeting, and other industrial and commercial information of case-related companies, it was confirmed that C Industrial Company and D Orchard were both set up by A Agriculture, Industry and Commerce Company and were enterprises owned by the whole people, under whose name the properties were state property, and that the main members of the management of the above-mentioned companies had facts such as holding office across the companies; by accessing information on tax returns, accounting books, fund custody agreements and other archival materials, it was discovered that B Real Estate Company did not have proprietary working capital and business and that its funds were the funds of the A Agriculture, Industry and Commerce Company in its custody; and by accessing bank statements, it was discovered that after receiving the proceeds of the loan, D Orchard transferred them to the account of a nonparty in the name of "payments or receipts," and the movement of the proceeds of the loan was ascertained. A series of facts and evidence all indicated that the parties committed the conduct of maliciously colluding and falsifying debts to fraudulently obtain orders of payment. | | 2. 办理虚假诉讼案件重点围绕捏造事实行为进行审查。虚假诉讼通常以捏造的事实启动民事诉讼程序，检察机关应当以此为重点内容开展调查核实工作。本案办理过程中，办案组通过调阅张某刑事案件卷宗材料掌握案情，以刑事案件中固定的证据作为本案办理的突破口；通过重点审查涉案公司的企业法人营业执照、公司章程、公司登记申请书、股东会决议等工商资料，确认丙实业公司和丁果园场均由甲农工商公司设立，均系全民所有制企业，名下房产属于国有财产，上述公司的主要班子成员存在交叉任职等事实；通过调取报税资料、会计账册、资金代管协议等档案材料发现，乙置业公司没有自有流动运营资金和业务，其资金来源于代管的甲农工商公司资金；通过调取银行流水清单，发现丁果园场在借款到账后即以“往来款”名义划付至案外人账户，案外人随即将等额资金划还至乙置业公司，查明了借款资金流转的情况。一系列事实和证据均指向当事人存在恶意串通、虚构债务骗取支付令的行为。 |
| 3. The procuratorial authorities shall join forces in order to discover and handle false action cases. False actions not only invade the lawful rights and interests of other parties to civil legal relations, but also affect the order of economic and social life and cause serious damage to judicial credibility and judicial order. The procuratorial authorities shall join forces and increase legal supervision efforts. Any business division of the procuratorial authorities shall promptly refer clues to false civil actions discovered in the course of performing its duties to the civil procuratorial division and vigorously explore the establishment of a two-way clues referral and feedback mechanism and a clues sharing and information interconnection mechanism among all business divisions. This case is a typical case in which the procuratorial authority discovered clues to possible existence of a false civil action in the process of handling a criminal case, and thus the civil procuratorial division conducted in-depth investigations. | | 3. 发现和办理虚假诉讼案件，检察机关应当形成整体合力。虚假诉讼不仅侵害其他民事主体的合法权益，影响经济社会生活秩序，更对司法公信力、司法秩序造成严重侵害，检察机关应当形成整体合力，加大法律监督力度。检察机关各业务部门在履行职责过程中发现民事虚假诉讼线索的，均应及时向民事检察部门移送；并积极探索建立各业务部门之间的线索双向移送、反馈机制，线索共享、信息互联机制。本案即是检察机关在办理刑事案件过程中发现可能存在民事虚假诉讼线索，民事检察部门由此进行深入调查的典型案例。 |
| [Relevant Regulations] | | 【相关规定】 |
| Articles 14 and 216 of the Civil Procedure Law of the People's Republic of China | | 《中华人民共和国民事诉讼法》第十四条、第二百一十六条 |
| Article 414 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China | | 《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》第四百一十四条 |
| Article 99 of the Rules for the Supervision over Civil Proceedings by the People's Procuratorates (for Trial Implementation) | | 《人民检察院民事诉讼监督规则（试行）》第九十九条 |
| False Action Supervision Case Where Wuhan B Investment Company et al. Fraudulently Obtained a Consent Judgment | | 武汉乙投资公司等骗取调解书虚假诉讼监督案 |
| (SPP Case No. 53) | | （检例第53号） |
| [Keywords] | | 【关键词】 |
| False mediation, debt evasion, civil appeal | | 虚假调解 逃避债务 民事抗诉 |
| [Key Point] | | 【要旨】 |
| Defrauding a people's court of a consent judgment by falsification of evidence and facts interferes with the judicial order, undermines judicial authority, and not only possibly invades the lawful rights and interests of another person, but also injures the state interest and the public interest and constitutes a false action. Procuratorial authorities handling such false action supervision cases shall, based on the abnormalities in transactions and action, trace the flow of interests, ascertain conspiracy between parties, confirm whether there is false action, and supervise according to the law. | | 伪造证据、虚构事实提起诉讼，骗取人民法院调解书，妨害司法秩序、损害司法权威，不仅可能损害他人合法权益，而且损害国家和社会公共利益的，构成虚假诉讼。检察机关办理此类虚假诉讼监督案件，应当从交易和诉讼中的异常现象出发，追踪利益流向，查明当事人之间的通谋行为，确认是否构成虚假诉讼，依法予以监督。 |
| [Basic Facts] | | 【基本案情】 |
| On April 26, 2010, A Trading Company sued B Investment Company in the Caidian District People's Court of Wuhan City for a dispute over a commodity building pre-sale contract, stating that the two parties signed the Commodity Building Purchase Agreement on April 30, 2008, stipulating that A Trading Company bought commodity building(s) of 40,000 square meters in the Tianrun Industrial Park Project from B Investment Company, at a total price of 73.75 million yuan, A Trading Company paid a security deposit of 14.75 million yuan, B Investment Company completed the mortgage deregistration of the aforesaid tract of land in the project within 30 days after receiving the security deposit, and then the two parties should sign an official Commodity Building Sale Contract. After the signing of the agreement, A Trading Company paid the security deposit by agreement, but B Investment Company did not cancel the registration of mortgage on the land. A Trading Company hence filed four actions for the dispute over the commodity building pre-sale contract, requesting an order that B Investment Company make refunds double the security deposit, and the subject matter of the actions were respectively 7 million yuan, 7 million yuan, 7.5 million yuan and 8 million yuan, totaling 29.5 million yuan. After acceptance, the Caidian District People's Court of Wuhan City conducted trial by summary procedure, terminated the case by means of mediation, and entered Civil Consent Judgments (No. 79 through 82 [2010], First, Civil Division II, Cai), respectively confirming that B Investment Company should make refunds double the security deposit, respectively 7 million yuan, 7 million yuan, 7.5 million yuan, and 8 million yuan, amounting to 29.5 million yuan. A Trading Company immediately moved the court for enforcement and received an amount enforceable of 20.65 million yuan. | | 2010年4月26日，甲商贸公司以商品房预售合同纠纷为由向武汉市蔡甸区人民法院起诉乙投资公司，称双方于2008年4月30日签订《商品房订购协议书》，约定甲商贸公司购买乙投资公司天润工业园项目约4万平方米的商品房，总价款人民币7375万元，甲公司支付1475万元定金，乙投资公司于收到定金后30日内完成上述项目地块的抵押登记注销，双方再签订正式《商品房买卖合同》。协议签订后，甲商贸公司依约支付定金，但乙投资公司未解除土地抵押登记，甲商贸公司遂提出四起商品房预售合同纠纷诉讼，诉请判令乙投资公司双倍返还定金，诉讼标的额分别为700万元、700万元、750万元、800万元，共计2950万元。武汉市蔡甸区人民法院受理后，适用简易程序审理、以调解方式结案，作出（2010）蔡民二初字第79号、第80号、第81号、第82号民事调解书，分别确认乙投资公司双倍返还定金700万元、700万元、750万元、800万元，合计2950万元。甲商贸公司随即向该法院申请执行，领取可供执行的款项2065万元。 |
| [Supervision by the Procuratorial Authority] | | 【检察机关监督情况】 |
| Discovery of Clues: In 2015, the People's Procuratorate of Wuhan City received a relevant report from a nonparty and, after examining the said case, preliminarily reorganized the following case clues: (1) The acceptance by the court was abnormal. The two parties only signed one Commodity Building Purchase Agreement, but A Trading Company split it and filed four actions; and A Trading Company had paid a security deposit of 14.75 million yuan. According to the rules of hierarchical jurisdiction of courts in Hubei province at that time, a basic court should accept cases with a subject matter not more than 8 million yuan. In the case, actions were filed by split in order to circumvent the rules of hierarchical jurisdiction, and the acceptance by the court was abnormal. (2) The summary procedure was applied, the same judge conducted the trial, and acceptance, trial, and preparation and issuance of consent judgments were completed in five days. (3) The trial was not adversary, B Investment Company accepted all the facts, evidence and claims of A Trading Company, and the parties and attorneys on both sides made highly consistent statements throughout the actions. (4) There was quick institution of the enforcement process and quick completion of enforcement. | | 线索发现 2015年，武汉市人民检察院接到案外人相关举报，经对上述案件进行审查，初步梳理出如下案件线索：一是法院受理异常。双方只签订有一份《商品房订购协议书》，甲商贸公司却拆分提出四起诉讼；甲商贸公司已支付定金为1475万元，依据当时湖北省法院案件级别管辖规定，基层法院受理标的额在800万元以下的案件，本案明显属于为回避级别管辖规定而拆分起诉，法院受理异常。二是均适用简易程序由同一名审判人员审结，从受理到审理、制发调解书在5天内全部完成。三是庭审无对抗性，乙投资公司对甲商贸公司主张的事实、证据及诉讼请求全部认可，双方当事人及代理人在整个诉讼过程中陈述高度一致。四是均快速进入执行程序、快速执结。 |
| Investigation and Verification: Based on the case clues preliminary reorganized, the People's Procuratorate of Wuhan City immediately carried out an investigation and verification. First, it was found on the China Judgments Online that there were more than 40 cases in the Caidian District People's Court of Wuhan City in which B Investment Company was defendant or judgment debtor, the total subject matter was more than 130 million yuan, and B Investment Company was already insolvent; second, it was discovered by inquiring into the flow of enforced payments through the bank that after receiving the enforced payments of 20.65 million yuan, A Trading Company credited 16 million yuan thereof to the individual account of Fang A, legal representative of B Investment Company, and transferred 3.2 million yuan to C Company and D Company; third, it was discovered by accessing industrial and commercial information that Fang A was the legal representative of B Investment Company and that companies A, B, C and D were affiliates, of which the actual controller was Cheng A; fourth, it was discovered by accessing court files that Fang A participated in all the action in person in the four cases; and fifth, it was discovered by further investigating the individual bank account of Fang A that there were movements of funds of more than 1 million yuan between Fang A and Yang A, former chief judge of the Civil Division II of the Caidian District People's Court of Wuhan City before and after the actions. Based on the foregoing, the prosecutors determined that the four cases might be false actions filed by B Investment Company in collusion with affiliate companies. According to the findings of further examination, Cheng A, the actual controller of A Trading Company and B Investment Company, acquired 80% of the shares of B Investment Company by transfer of debts but incurred massive debts resulting from mismanagement. Cheng A hence instructed A Trading Company to falsify the Commodity Building Purchase Agreement above, used the bank statements for other business of A Trading Company as evidence of paying the security deposit of 14.75 million yuan, and permitted A Trading Company to sue in the Caidian District People's Court of Wuhan City, requesting "defendant B Investment Company to make refunds double the security deposit, amounting to 29.5 million yuan," in an attempt to achieve the illegal purpose of transferring company assets and evading company debts. Yang A, chief judge of the Civil Division II of the court, in the knowledge that the actual controller of companies A and B was the same person and the court had no jurisdiction over the case, voluntarily proposed that A Trading Company split the case into four cases to file actions; after the cases had been transferred to the tribunal, Yang A concealed the foregoing from the handling judge and instructed the judge to mediate in the cases quickly in accordance with the summary procedure; and after enforcement had been instituted, Yang A told Tong A, former chief judge of the Enforcement Division II of the court, that the actual controller of plaintiff and defendant companies was the same person in the hope of quick enforcement. Under the influence of Yang A and Tong A, the cases were quickly terminated by enforcement. | | 调查核实 针对初步梳理的案件线索，武汉市人民检察院随即开展调查核实。第一步，通过裁判文书网查询到乙投资公司作为被告或被执行人的案件在武汉市蔡甸区人民法院已有40余件，总标的额1.3亿余元，乙投资公司已经资不抵债；第二步，通过银行查询执行款流向，发现甲商贸公司收到2065万元执行款后，将其中1600万元转账至乙投资公司法定代表人方某的个人账户，320万元转账至丙公司、丁公司；第三步，通过查询工商信息，发现方某系乙投资公司法定代表人，而甲、乙、丙、丁四公司系关联公司，实际控制人均为成某某；第四步，调阅法院卷宗，发现方某本人参加了四起案件的全部诉讼过程；第五步，经进一步调查方某个人银行账户，发现方某在本案诉讼前后与武汉市蔡甸区人民法院民二庭原庭长杨某某之间存在金额达100余万元的资金往来。检察人员据此判断该四起案件可能是乙投资公司串通关联公司提起的虚假诉讼。经进一步审查发现，甲商贸公司、乙投资公司的实际控制人成某某通过受让债权取得乙投资公司80%的股权，后因经营不善产生巨额债务，遂指使甲商贸公司，伪造了以上《商品房订购协议书》，并将甲商贸公司其他业务的银行资金往来明细作为支付定金1475万元的证据，由甲商贸公司向武汉市蔡甸区人民法院提起诉讼，请求“被告乙投资公司双倍返还定金2950万元”，企图达到转移公司资产、逃避公司债务的非法目的。该院民二庭庭长杨某某在明知甲、乙投资公司的实际控制人为同一人，且该院对案件无管辖权的情况下，主动建议甲商贸公司将一案拆分为4个案件起诉；案件转审判庭后，杨某某向承办法官隐瞒上述情况，指示其按照简易程序快速调解结案；进入执行后，杨某某又将该案原、被告公司的实际控制人为同一人的情况告知本院执行二庭原庭长童某，希望快速执行。在杨某某、童某的参与下，案件迅速执行结案。 |
Supervisory Opinions: On October 21, 2016, the People's Procuratorate of Wuhan City appealed to the Intermediate People's Court of Wuhan City against Civil Consent Judgments (No. 79 through 82 [2010], First, Civil Division II, Cai), of the opinion that the facts established in the consent judgments in the case were manifestly inconsistent with the actual facts of the case, the four actions were all false actions brought by the parties on the two sides in malicious collusion to evade the company debts, and corrections should be made according to the law. First, the Commodity Building Purchase Agreement was manifestly inconsistent with the ordinary usage of trade in commodity buildings in terms of its form and even contained neither specific location nor number of the building(s) purchased; second, Fang A, legal representative of B Investment Company, confessed in the criminal investigation that the parties had no authentic privity of commodity building sale contract with each other and that the four copies of the Commodity Building Purchase Agreement were falsified with the aim of transferring the company assets by double refunding the security deposit for building purchase and evading the company debts; third, as the parties did not enter into a transaction of building purchase, there was no such thing as payment or refund of a "security deposit." The evidence that A Trading Company paid a security deposit of 14.75 million yuan was seven bank documents, covering a remittance of 6 million yuan made by nonparty, E Company; and after A Trading Company had successively remitted 8.75 million yuan to B Investment Company, B Investment Company remitted 1.75 million yuan back to A Trading Company, and thus the amount that A Trading Company credited to the account of B Investment Company was only 7 million yuan and was for intra-company allocation.
．．．．．． | | 监督意见 2016年10月21日，武汉市人民检察院就（2010）蔡民二初字第79号、第80号、第81号、第82号民事调解书，向武汉市中级人民法院提出抗诉，认为本案调解书认定的事实与案件真实情况明显不符，四起诉讼均系双方当事人恶意串通为逃避公司债务提起的虚假诉讼，应当依法纠正。首先，从《商品房订购协议书》的表面形式来看，明显与正常的商品房买卖交易惯例不符，连所订购房屋的具体位置、房号都没有约定；其次，乙投资公司法定代表人方某在刑事侦查中供述双方不存在真实的商品房买卖合同关系，四份商品房订购协议书系伪造，目的是通过双倍返还购房定金的方式转移公司资产，逃避公司债务；再次，在双方无房屋买卖交易的情况下，不存在支付及返还“定金”之说。证明甲商贸公司支付1475万元定金的证据是7张银行凭证，其中一笔600万的汇款人为案外人戊公司；甲商贸公司陆续汇入乙投资公司875万元后，乙投资公司又向甲商贸公司汇回175万元，甲商贸公司汇入乙投资公司账户的金额实际仅有700万元，且属于公司内部的调度款。
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