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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 [Effective]
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 [现行有效]
【法宝引证码】

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 Cases 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 Cases 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。
Supervisory Results: On January 16, 2018, the Intermediate People's Court of Wuhan City made a civil ruling on the four cases against which the People's Procuratorate of Wuhan City appealed, ordering the Caidian District People's Court of Wuhan City to conduct a retrial. On November 19, 2018, the Caidian District People's Court of Wuhan City entered a retrial judgment: the four Civil Consent Judgments (No. 79 through 82 [2010], First, Civil Division II, Cai) were set aside; and all claims of A Trading Company were dismissed. In 2017, Yang A, former chief judge of the Civil Division II of the Caidian District People's Court of Wuhan City, and Tong A, former chief judge of the Enforcement Division II of the same, were held criminally liable for the crime of bribery. 监督结果 2018年1月16日,武汉市中级人民法院对武汉市人民检察院抗诉的四起案件作出民事裁定,指令武汉市蔡甸区人民法院再审。2018年11月19日,武汉市蔡甸区人民法院分别作出再审判决:撤销武汉市蔡甸区人民法院(2010)蔡民二初字第79号、第80号、第81号、第82号四份民事调解书;驳回甲商贸公司全部诉讼请求。2017年,武汉市蔡甸区人民法院民二庭原庭长杨某某、执行二庭原庭长童某被以受贿罪追究刑事责任。
[Guiding Significance] 【指导意义】
1. Procuratorial authorities shall supervise civil consent judgments as a result of false actions. Civil mediation in false actions is particular. Such cases appear in the form of consent judgments and are prima facie that the parties dispose of their own civil rights and obligations, irrelevant to another person. In essence, the parties use the form of consent judgments to achieve certain illegal purposes, obtain certain illegal interests, or invade the lawful rights and interests of another person. The parties' conduct of achieving illegal purposes or obtaining illegal interests in the form of mediation is taking advantage of the judicial power of people's courts, substantially exceeds the scope of mediating in the private interests of each party, disposes of and invades not only the private interests of the parties, disrupts the judicial order, undermines the judicial authority, and injures the state interest and the public interest, and shall be supervised according to the law. For such false civil mediations, procuratorial authorities may appeal in accordance with the relevant provisions of the Civil Procedure Law. 1. 对于虚假诉讼形成的民事调解书,检察机关应当依法监督。虚假诉讼的民事调解有其特殊性,此类案件以调解书形式出现,从外表看是当事人在处分自己的民事权利义务,与他人无关。但其实质是当事人利用调解书形式达到了某种非法目的,获得了某种非法利益,或者损害了他人的合法权益。当事人这种以调解形式达到非法目的或获取非法利益的行为,利用了人民法院的审判权,从实质上突破了调解各方私益的范畴,所处分和损害的利益已不仅仅是当事人的私益,还妨碍司法秩序,损害司法权威,侵害国家和社会公共利益,应当依法监督。对于此类虚假民事调解,检察机关可以依照民事诉讼法的相关规定提出抗诉。
2. Attention shall be paid to the investigation and verification of abnormalities in cases so as to ascertain the truth behind false actions. Procuratorial authorities shall investigate abnormalities discovered in the handling of cases. These abnormalities include those in trading and actions. For example, the terms and performance of a contract obviously lack conformity with trading practices and common sense, and there may be conspiracy; compared with cases of the same type in the same area, the docketing, trial and enforcement of a case are abnormally rapid; the trial process obviously lacks adversary nature, and the parties on the two sides are highly consistent in terms of the facts of the case and evidence claimed in the process of action. Procuratorial authorities shall have a keen eye for abnormalities, use targeted investigation and verification measures, and discover the facts of cases. 2. 注重对案件中异常现象的调查核实,查明虚假诉讼的真相。检察机关对办案中发现的异于常理的现象要进行调查,这些异常既包括交易的异常,也包括诉讼的异常。例如,合同约定和合同履行明显不符合交易惯例和常识,可能存在通谋的;案件的立、审、执较之同地区同类型案件异常迅速的;庭审过程明显缺乏对抗性,双方当事人在诉讼过程对主张的案件事实和证据高度一致等。检察机关要敏锐捕捉异常现象,有针对性运用调查核实措施,还案件事实以本来面目。
[Relevant Regulations] 【相关规定】
Articles 112, 113, 208, and 210 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第一百一十二条、第一百一十三条、第二百零八条你怀了我的猴子、第二百一十条
Article 307(I) of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第三百零七条之一
False Action Supervision Case Involving Enforcement of Notarization Relating to Shaanxi A Industrial Company et al. 陕西甲实业公司等公证执行虚假诉讼监督案
(SPP Cases No. 54) (检例第54号)
[Keywords] 【关键词】
False notarization, supervision of non-litigant enforcement, procuratorial recommendations 虚假公证 非诉执行监督 检察建议
[Key Point] 【要旨】
That parties maliciously collude and falsify facts to fraudulently obtain a notarial document and move the court for enforcement invades the lawful rights and interests of another person, undermines the judicial order and judicial authority, and constitutes a false action. Procuratorial authorities shall supervise such false actions according to the law, regulate non-litigant enforcement, and maintain the judicial order and social integrity. 当事人恶意串通、捏造事实,骗取公证文书并申请法院强制执行,侵害他人合法权益,损害司法秩序和司法权威,构成虚假诉讼。检察机关对此类虚假诉讼应当依法监督,规范非诉执行行为,维护司法秩序和社会诚信。
[Basic Facts] 【基本案情】
In 2011, Gao A, chairman of Shaanxi A Industrial Company, was held criminally liable for illegally pooling public deposits; and at the end of 2012, a Shaanxi-based hotel, assets of Shaanxi Industrial Company, was seized and auctioned by the Intermediate People's Court of Xi'an City, and the proceeds of the auction were used to refund the deposits and pay debts. 2011年,陕西甲实业公司董事长高某因非法吸收公众存款罪被追究刑事责任;2012年底,甲实业公司名下资产陕西某酒店被西安市中级人民法院查封拍卖,拍卖所得用于退赔集资款和偿还债务。
In November 2013, during medical treatment outside prison on bail, Gao A talked with Xi A, Gao A Ping, Gao A Yun, Wang A, Du A, Tang A, Geng A, and Gao A gave IOU in the name of A Industrial Company, falsified the fact that A Industrial Company borrowed from the seven persons including Xi A in 2006 and 2007, and respectively signed payment agreements. In December 2013, the agent of A Industrial Company and the seven persons including Xi A applied to the Lianhu District Notary Office of Xi'an City for Authentic Acts for Enforceable Documents of Debts with respect to case-related payment agreements, and the Lianhu District Notary Office issued Certificates of Enforcement to the seven persons including Xi A. In December 2013, the seven persons including Xi A moved the Yanta District People's Court of Xi'an City for enforcement by the Certificates of Enforcement. In March 2014, the Yanta District People's Court of Xi'an City entered enforcement rulings that the enforcement procedure in the case was terminated on the grounds that the property under the name of A Industrial Company was auctioned by the Intermediate People's Court of Xi'an City, and the enforcement was pending, awaiting the determination of an allocation plan. After the Intermediate People's Court of Xi'an City had determined an allocation plan, the Yanta District People's Court resumed the enforcement and reported to the Intermediate People's Court of Xi'an City on the claims and request for allocation from the seven persons including Xi A. 2013年11月,高某保外就医期间与郗某、高某萍、高某云、王某、杜某、唐某、耿某等人商议,由高某以甲实业公司名义出具借条,虚构甲实业公司曾于2006、2007年向郗某等七人借款的事实,并分别签订还款协议书。2013年12月,甲实业公司委托代理人与郗某等七人前往西安市莲湖区公证处,对涉案还款协议书分别办理《具有强制执行效力的债权文书公证书》,莲湖区公证处向郗某等七人出具《执行证书》。2013年12月,郗某等七人依据《执行证书》,向西安市雁塔区人民法院申请执行。2014年3月,西安市雁塔区人民法院作出执行裁定书,以甲实业公司名下财产被西安市中级人民法院拍卖,尚需等待分配方案确定后再恢复执行为由,裁定本案执行程序终结。西安市中级人民法院确定分配方案后,雁塔区人民法院恢复执行并向西安市中级人民法院上报郗某等七人债权请求分配。
[Supervision by the Procuratorial Authority] 【检察机关监督情况】
Discovery of Clues: In November 2015, procuratorial authorities received a report that creditor(s) disagreed to the debt allocation plan formulated by the Intermediate People's Court of Xi'an City, alleging that part of the debts owed by Gao A were false. After receiving the report, the Yanta District People's Procuratorate examined the debts owed by Gao A based on the clues provided by the creditor(s) and discovered clues to seven false notarization cases. 线索发现 2015年11月,检察机关接到债权人不服西安市中级人民法院制定的债权分配方案,提出高某所涉部分债务涉嫌虚构的举报。雁塔区人民检察院接到举报后,根据债权人提供的线索对高某所涉债务进行清查,发现该七起虚假公证案件线索。
Investigation and Verification: The Yanta District People's Procuratorate investigated and verified the case clues according to the law. First, the Yanta District People's Procuratorate visited the prison in which Gao A served his (her) sentence and the hospital where Gao A received medical treatment outside prison on bail to investigate where Gao A had been and then interviewed Wang A, Xi A, and Geng A, who admitted that they cooperated for benefits with Gao A in falsifying the fact of borrowing by A Industrial Company; and second, the Yanta District People's Procuratorate accessed notarization files at the notary office and requested from the Intermediate People's Court of Xi'an City information on the enforcement case involving A Industrial Company. According to the findings of the investigation and verification, Gao A and the seven persons including Xi A, in order to fraudulently obtain the enforceable sum of money and evade debts, falsified the fact that A Industrial Company borrowed 11.8 million yuan from the seven persons including Xi A, payment agreements and other evidence, had the falsified borrowing notarized, and moved the Yanta District People's Court of Xi'an City for enforcement of the notarized documents of debts. 调查核实 雁塔区人民检察院对案件线索依法进行调查核实。首先,到高某服刑的监狱和保外就医的医院对其行踪进行调查,并随即询问了王某、郗某、耿某,郗某等人承认了基于利益因素配合高某虚构甲实业公司借款的事实;其次,雁塔区人民检察院到公证机关调取公证卷宗,向西安市中级人民法院了解甲实业公司执行案件相关情况。经调查核实发现,高某与郗某等七人为套取执行款,逃避债务,虚构甲实业公司向郗某等七人借款1180万元的事实、伪造还款协议书等证据,并对虚构的借款事实进行公证,向西安市雁塔区人民法院申请强制执行该公证债权文书。
Supervisory Opinions: On the basis of ascertaining the facts of the relevant cases, in November 2015, the Yanta District People's Procuratorate referred the clues to the alleged criminal case involving false action to the Yanta Branch of Xi'an City Public Security Bureau for case filing and investigation. On September 23, 2016, the Yanta District People's Procuratorate issued procuratorial recommendations as to the enforcement activities of the Yanta District People's Court, stating that A Industrial Company and the seven persons including Xi A maliciously colluded to falsify documents of loans and payment agreements and that the Certificates of Enforcement were inconsistent with the facts, recommending rejecting enforcement because of the errors in the notarized documents of debts. 监督意见 在查明相关案件事实的基础上,2015年11月,雁塔区人民检察院将涉嫌虚假诉讼刑事案件的线索移交西安市公安局雁塔分局立案侦查。2016年9月23日,雁塔区人民检察院针对雁塔区人民法院的执行活动发出检察建议,指出甲实业公司与郗某等七人恶意串通,伪造借款凭据和还款协议,《执行证书》中的内容与事实不符,由于公证债权文书确有错误,建议依法不予执行。
Supervisory Results: On October 24, 2016, the Yanta District People's Court made a reply, stating that it was confirmed by accessing the evidential materials in the criminal files relating to Xi A et al. suspected of the crime of false action that the relevant notarized contents were falsified and that the collegial panel decided upon consideration not to enforce the rulings on the relevant certificates of enforcement. On July 16, 2017, the Yanta District People's Court entered seven enforcement rulings (No. 153 through 159 [2017], Objection, Enforcement Division, 0113, Shaan), finding that Xi A and other enforcement movers committed false conduct during notarization and that the notarized documents of debts were inconsistent with the facts, deciding not to enforce the relevant authentic acts and certificates of enforcement. Four persons including Gao A were subsequently held criminally liable for the crime of false action. 监督结果 2016年10月24日,雁塔区人民法院回函称,经调取刑事卷宗中郗某等人涉嫌虚假诉讼犯罪的相关证据材料,确认相关公证内容确系捏造,经合议庭合议决定,对相关执行证书裁定不予执行。2017年7月16日,雁塔区人民法院作出(2017)陕0113执异153至159号七份执行裁定书,认定郗某等申请执行人在公证活动进行期间存在虚假行为,公证债权文书的内容与事实不符,裁定对相关公证书及执行证书不予执行。后高某等四人因构成虚假诉讼罪被追究刑事责任。
[Guiding Significance] 【指导意义】
1. As moving a court for enforcement by false notarization is a form of false civil actions, procuratorial supervision shall be strengthened. It is a particular function the law vests in notary offices to make documents of debts enforceable. A document of debts so made enforceable may be directly become the basis for enforcement by any people's court without litigation. Over recent years, the notarization of false documents of debts have occurred from time to time. Some parties maliciously collude with others to have false donation contracts, sale contracts, or agreements on debt payment in kind notarized and move a court for enforcement, so as to achieve transfer of property and evasion of debts. In the case, that A Industrial Company and seven persons including Xi A falsified borrowings to apply for notarization and move the people's court for enforcement and participation in the allocation of enforceable property is the circumstances, which not only harmed the legal claims of nonparties, but also undermined the litigant order and justice and affected social integrity. In the case, the procuratorial authorities and the public security authorities had verified that the notarization was false. That procuratorial authorities recommended the people's court rejecting enforcement was more favorable to protection of the lawful rights and interests of creditors than that interested parties applied to the notary office for revoking the notarization. 1. 利用虚假公证申请法院强制执行是民事虚假诉讼的一种表现形式,应当加强检察监督。对债权文书赋予强制执行效力是法律赋予公证机关的特殊职能,经赋强公证的债权文书,可以不经诉讼直接成为人民法院的执行依据。近年来,对虚假债权文书进行公证的行为时有发生,一些当事人与他人恶意串通,对虚假的赠与合同、买卖合同,或抵偿债务协议进行公证,并申请法院强制执行,以达到转移财产、逃避债务的目的。本案中,甲实业公司与郗某等七人捏造虚假借款事实申请公证,并向人民法院申请强制执行、参与执行财产分配就属于此类情形,不仅损害了案外人的合法债权,同时也损害了诉讼秩序和司法公正,影响社会诚信。本案中,检察机关和公安机关已经查实系虚假公证,由检察机关建议人民法院不予执行较之利害关系人申请公证机关撤销公证更有利于保护债权人合法权益。
2. The supervision of non-litigant enforcement such as the enforcement of notarized documents of debts shall be strengthened, and the lawful and orderly conduct of notarization activities shall be promoted. According to the provisions of the Notary Law, a notary office shall examine the identity, qualifications for applying for notarization, and corresponding rights of any party, whether the contents of a document provided are complete, whether the meaning is clear, and whether a signature or seal is complete, whether the evidential materials provided are authentic, legal, and adequate, whether matters under the application for notarization are authentic or legal, and the like. If, when supervising non-litigant enforcement by people's courts such as enforcement of notarized documents of debts, procuratorial authorities discover that a notary office fails to conduct notarization in accordance with the procedures and requirements provided by law, they shall recommend that the notary office make corrections. 2. 加强对执行公证债权文书等非诉执行行为的监督,促进公证活动依法有序开展。根据《公证法》规定,公证机关应当对当事人的身份、申请办理该项公证的资格以及相应的权利;提供的文书内容是否完备,含义是否清晰,签名、印鉴是否齐全;提供的证明材料是否真实、合法、充分;申请公证的事项是否真实、合法等内容进行审查。检察机关在对人民法院执行公证债权文书等非诉执行行为进行监督时,如果发现公证机关未依照法律规定程序和要求进行公证的,应当建议公证机关予以纠正。
[Relevant Regulations] 【相关规定】
Article 235 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第二百三十五条
Article 3 of the Notice of the Supreme People's Court and the Supreme People's Procuratorate on Issuing the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning Legal Supervision over Civil Enforcement Activities 最高人民法院、最高人民检察院《关于民事执行活动法律监督若干问题的规定》第三条
Article 28 of the Notary Law of the People's Republic of China 中华人民共和国公证法》第二十八条
False Action Supervision Case Involving Enforcement of Labor Arbitral Award Relating to Fujian-based Wang A Xing et al. 福建王某兴等人劳动仲裁执行虚假诉讼监督案
(SPP Cases No. 55) (检例第55号)
[Keywords] 【关键词】
False labor arbitration, supervision of enforcement of arbitral awards, procuratorial recommendations 虚假劳动仲裁 仲裁执行监督 检察建议
[Key Point] 【要旨】
A false action occurs when in order to have preference for payment out of the enforceable sum of money, a party falsifies evidence and disguises any ordinary creditor-debtor relationship as a labor dispute to apply for labor arbitration, obtain an arbitral award or written mediation, and move a people's court for enforcement on that basis. Procuratorial authorities shall supervise such false actions in accordance with the law. 为从执行款项中优先受偿,当事人伪造证据将普通债权债务关系虚构为劳动争议申请劳动仲裁,获取仲裁裁决或调解书,据此向人民法院申请强制执行,构成虚假诉讼。检察机关对此类虚假诉讼行为应当依法进行监督。
[Basic Facts] 【基本案情】
In 2014, Wang A Xing lent 339,500 yuan to Wang A Gui, former legal representative of A Tea Company and demanded payment in vain several times. In May 2017, as A Tea Company defaulted on debts owed by it, its factory and land were auctioned by the Wuping County People's Court. In late July 2017, Wang A Xing talked with Wang A Fu (the son of Wang A Gui), new legal representative of A Tea Company, about application for arbitration, with the aim of giving preference for payment out of the proceeds of auctioning the assets of A Tea Company to the loan Wang A Xing made to Wang A Gui. The two parties jointly falsified a writing that A Tea Company owed wages of 414,700 yuan to 13 persons including Wang A Xing and his wife and daughter(s) and applied to the Wuping County Labor and Personnel Dispute Arbitration Committee for labor arbitration. On July 31, 2017, arbitrator Zeng A Ming, in the knowledge that the 13 persons were not employees of A Tea Company, made a written arbitral conciliation statement (No. 19 [2017], Case, Labor Arbitration, Wu), confirming that A Tea Company should pay 13 persons including Wang A Xing wages amounting to 414,700 yuan, the Wuping County People's Court should directly credit the payments out of the proceeds of auctioning the land of A Tea Company to rural migrant workers' wages account of the Wuping County Bureau of Human Resources and Social Security, and performance should be effected on July 31, 2017. On August 1, the same year, Wang A Xing applied to the Wuping County People's Court for enforcement in his capacity as the representative of the other 12 persons. On the 4th day of the same month, the Wuping County People's Court docketed a case for enforcement and ruled that (1) the bank deposits of A Tea Company should be frozen and debited, (2) that all the property of A Tea Company should be seized, impounded, and auctioned or forcibly sold, (3) and that the revenue of A Tea Company should be detained and obtained. 2014年,王某兴借款339500元给甲茶叶公司原法定代表人王某贵,多次催讨未果。2017年5月,甲茶叶公司因所欠到期债务未偿还,厂房和土地被武平县人民法院拍卖。2017年7月下旬,王某兴为实现其出借给王某贵个人的借款能从甲茶叶公司资产拍卖款中优先受偿的目的,与甲茶叶公司新法定代表人王某福(王某贵之子)商议申请仲裁事宜。双方共同编造甲茶叶公司拖欠王某兴、王某兴妻子及女儿等13人414700元工资款的书面材料,并向武平县劳动人事争议仲裁委员会申请劳动仲裁。2017年7月31日,仲裁员曾某明在明知该13人不是甲茶叶公司员工的情况下,作出武劳仲案(2017)19号仲裁调解书,确认甲茶叶公司应支付给王某兴等13人工资款合计414700元,由武平县人民法院在甲茶叶公司土地拍卖款中直接支付到武平县人力资源和社会保障局农民工工资账户,限于2017年7月31日履行完毕。同年8月1日,王某兴以另外12人委托代理人的身份向武平县人民法院申请强制执行。同月4日,武平县人民法院立案执行,裁定:(1)冻结、划拨甲茶叶公司在银行的存款;(2)查封、扣押、拍卖、变卖甲茶叶公司的所有财产;(3)扣留、提取甲茶叶公司的收入。
[Supervision by the Procuratorial Authority] 【检察机关监督情况】
Discovery of Clues: In early August 2017, the Wuping County People's Procuratorate discovered in the special campaign for supervision of enforcement that, when allocating the proceeds of auction against judgment debtor A Tea Company, the Wuping County People's Court suddenly added a number of enforcement movers who claimed to be the employees of A Tea Company and filed a motion to participate in the allocation of the enforceable sum of money based on the written arbitral conciliation statement. Given that A Tea Company ceased production in 2014, there was a possibility of false arbitration in this case. 线索发现 2017年8月初,武平县人民检察院在开展执行监督专项活动中发现,在武平县人民法院对被执行人甲茶叶公司的拍卖款进行分配时,突然新增多名自称甲茶叶公司员工的申请执行人,以仲裁调解书为依据申请参与执行款分配。鉴于甲茶叶公司2014年就已停产,本案存在虚假仲裁的可能性。
Investigation and Verification: First, prosecutors accessed the enforcement files of the court, preliminarily determined based on the identity information of the 13 enforcement movers such as address, age and gender that they were in husband-wife relationships or otherwise related, and subsequently verified such relationships among the enforcement movers by accessing their household registration information at the public security authorities; second, according to information on industrial and commercial registration, Wang A Xing operated a repair automotive part company solely owned by him from 2013 to the end of 2015 and dealt in stainless steel products in Foshan, Guangdong after 2015, the daughter(s) of Wang A Xing had been living in another region, and therefore it was unlikely that the family of Wang A Xing worked in A Tea Company; third, according to the findings of the prosecutors' investigation into and interview with enforcement movers Li A Lin and Zeng A Xiu who were husband and wife, they had been running a grocery, never worked in A Tea Company, and were related to arbitrator Zeng A Ming; and fourth, though the prosecutors' persuasion and education of Wang A Fu, Wang A Fu confessed to the fact that he colluded with Wang A Xing to go to false arbitration, and Wang A Xing admitted that he and the other 12 persons had no relationship of labor with A Tea Company, the signature on the Power of Attorney was falsified, and arbitrator Zeng A Ming issued a written arbitral conciliation statement in the knowledge that there was no relationship of labor between the applicants and A Tea Company. 调查核实 首先,检察人员调取了法院的执行卷宗,从13个申请执行人的住址、年龄和性别等身份信息初步判断,他们可能存在夫妻关系或其他亲戚关系,随后至公安机关查询户籍信息证实了申请执行人之间的上述亲属关系;其次,经查询工商登记信息,2013年至2015年底,王某兴独资经营一家汽车修配公司,2015年以后在广东佛山经营不锈钢制品,王某兴之女一直在外地居住,王某兴一家在甲茶叶公司工作的可能性不存在;再者,检察人员经对申请人执行人李某林、曾某秀夫妇进行调查询问,发现其长期经营百货商店,亦未在甲茶叶公司工作过,仲裁员曾某明与其有亲属关系;最后,检察人员经对王某福进行说服教育,王某福交待了其与王某兴合谋提起虚假仲裁的事实,王某兴亦承认其与另外12人均与甲茶叶公司不存在劳动关系,“授权委托书”上的签名系伪造,仲裁员曾某明清楚申请人与甲茶叶公司之间不存在劳动关系但仍出具了仲裁调解书。
Supervisory Opinions: On August 24, 2017, the Wuping County People's Procuratorate issued procuratorial recommendations to Wuping County Labor and Personnel Dispute Arbitration Committee, stating that Wang A Xing and Wang A Fu applied for labor arbitration by false facts and that the arbitrator knowingly made false written arbitral conciliation statement, making the loan individually owed by Wang A Gui a remuneration obligation owed by A Tea Company, which invaded the lawful rights and interests of the creditors of A Tea Company, recommending setting aside the written arbitral conciliation statement. After the Arbitration Committee had set aside the written arbitral conciliation statement, the Wuping County People's Procuratorate issued procuratorial recommendations to the Wuping County People's Court on August 28, 2017, stating that Wang A Xing and Wang A Fu jointly falsified facts to obtain a written arbitral conciliation statement and moved the court for enforcement and that the court's ruling in favor of enforcement on that basis invaded the lawful rights and interests of the creditors of A Tea Company, disrupted the civil litigant order, and undermined the judicial authority, recommending that the court terminate enforcement because the written arbitral conciliation statement that the enforcement was based on had been set aside. 监督意见 2017年8月24日,武平县人民检察院向武平县劳动人事争议仲裁委员会发出检察建议书,指出王某兴、王某福虚构事实申请劳动仲裁,仲裁员在明知的情况下仍作出虚假仲裁调解书,使得王某贵的个人借款变成了甲茶业公司的劳动报酬债务,损害了甲茶业公司其他债权人的合法权益,建议撤销该案仲裁调解书。仲裁委撤销仲裁调解书后,2017年8月28日,武平县人民检察院向武平县人民法院发出检察建议书,指出王某兴与王某福共同虚构事实获取仲裁调解书后向法院申请执行,法院据此裁定执行,损害了甲茶业公司其他债权人的合法权益,妨碍民事诉讼秩序,损害司法权威,且据以执行的仲裁调解书已被撤销,建议法院终结执行。
Supervisory Results: On August 24, 2017, the Wuping County Labor and Personnel Dispute Arbitration Committee made a written decision (No. 1 [2017], Decision, Labor Arbitration, Wu), setting aside the written arbitral conciliation statement (No. 19 [2017], Case, Labor Arbitration, Wu). On August 29, 2017, the Wuping County People's Court ruled that the enforcement in the enforcement case (No. 888 [2017], Enforcement Division, 0824, Min) should be terminated and made a written reply to the Wuping County People's Procuratorate on September 25, the same year. Wang A Xing and Wang A Fu were held criminally liable for the crime of false action, and Zeng A Ming was held criminally liable for the crime of unfair arbitration. 监督结果 2017年8月24日,武平县劳动人事争议仲裁委员会作出武劳仲决(2017)1号决定书,撤销武劳仲案(2017)19号仲裁调解书。2017年8月29日,武平县人民法院裁定终结(2017)闽0824执888号执行案件的执行,并于同年9月25日书面回复武平县人民检察院。王某兴、王某福因构成虚假诉讼罪被追究刑事责任,曾某明因构成枉法仲裁罪被追究刑事责任。
[Guiding Significance] 【指导意义】
1. As filing a motion for enforcement by false labor arbitration is a form of false civil actions, procuratorial supervision shall be strengthened. In liquidation, bankruptcy and enforcement procedure, the legislation and the judiciary give priority to the protection of wage debts owed to employees: in the company liquidation procedure, employees' wages are paid in priority; in the bankruptcy procedure, employees' wages are debts accorded a preference; and in the enforcement procedure, priority is given to considering recovery of remunerations. Because of the priority protection by the legislation and the judiciary, some creditors, with the aim of according a preference to the ordinary debts owed to them, maliciously collude with debtors and even arbitrators, apply for labor arbitration by falsifying evidence and fabricating delay in payment of remunerations, and move a people's court for enforcement by obtained arbitral documents. Procuratorial authorities shall, in their legal supervision of the enforcement of arbitral awards and written conciliation statements by people's courts, focus on examining whether there exists false arbitration and, if false arbitration is verified, recommend that the court terminate its enforcement, so as to prevent erroneous allocation of any enforceable sum of money. Procuratorial authorities shall pay attention to strengthening communication with arbitral institutions and the authorities having jurisdiction over them to jointly prevent false arbitration. 1. 以虚假劳动仲裁申请执行是民事虚假诉讼的一种情形,应当加强检察监督。在清算、破产和执行程序中,立法和司法对职工工资债权给予了优先保护:在公司清算程序中职工工资优先支付;在破产程序中职工工资属于优先受偿债权;在执行程序中追索劳动报酬优先考虑。正是由于立法和司法的优先保护,有的债权人为实现自身普通债权优先受偿的目的,与债务人甚至仲裁员恶意串通,伪造证据,捏造拖欠劳动报酬的事实申请劳动仲裁,获取仲裁文书向人民法院申请执行。检察机关在对人民法院执行仲裁裁决书、调解书的活动进行法律监督时,应重点审查是否存在虚假仲裁行为,对查实为虚假仲裁的,应建议法院终结执行,防止执行款错误分配。注重加强与仲裁机构及其主管部门的沟通,共同防范虚假仲裁行为。
2. In order to handle false action supervision cases, a highly keen eye for clues shall be kept. For false action cases, prima facie facts and evidence often differ from the truth, the parties have a complicated relationship of interests with each other and often conspire, and procuratorial authorities shall keep a keen eye for case clues and adequately and effectively conduct investigation and verification. In this case, the prosecutors discovered clues to false arbitration in supervision, carried out investigation and verification in a timely manner, carefully examined the identity, relationships, household registration information, economic exchanges, and other matters of the parties, analyzed the professions, residence and other information of the parties, conducted investigations step by step, consolidated the evidence base, and finally ascertained the facts of false labor arbitration. 2. 办理虚假诉讼监督案件,应当保持对线索的高度敏感性。虚假诉讼案件的表面事实和证据与真实情况往往具有较大差距,当事人之间利益纠葛复杂,多存在通谋,检察机关要敏于发现案件线索,充分做好调查核实工作。本案中,检察人员在执行监督活动中发现虚假仲裁线索,及时开展调查核实工作,认真审查当事人之间的身份关系、户籍信息、经济往来等事项,分析当事人的从业、居住等情况,有步骤地开展调查工作,夯实证据基础,最终查清虚假劳动仲裁的事实。
3. If procuratorial authorities discovered illegal arbitration when handling false action cases, they shall conduct supervision according to the law. According to the provisions of the Arbitration Law and the Labor Dispute Mediation and Arbitration Law, the statutory circumstances setting aside an arbitral award include: the composition of an arbitral tribunal or the arbitral procedure violates the legal procedure; the evidence on which the arbitral award is based is false; either party conceals evidence adequate to affect fair arbitration; and in arbitrating in a case, the arbitrator demands bribes, practices favoritism, makes falsehood, or unfairly arbitrates. According to the Provisions on Procuratorial Recommendation Work of People's Procuratorates, a people's procuratorate may directly give procuratorial recommendations to entities relating to cases it handles, the relevant competent authorities at the same level, and other relevant entities. If procuratorial authorities discover a false arbitral award when handling false action cases, they shall issue procuratorial recommendations according to the law, requesting correction; and if an arbitrator is found to be suspected of the crime of unfair arbitration, the clues to the crime shall be referred according to the law. 3. 检察机关在办理虚假诉讼案件中,发现仲裁活动违法的,应当依法进行监督。根据《仲裁法》及《劳动争议调解仲裁法》的规定,仲裁裁决被撤销的法定情形包括:仲裁庭组成或者仲裁程序违反法定程序,裁决所根据的证据系伪造,对方当事人隐瞒了足以影响公正裁决的证据,仲裁员在仲裁该案时有索贿受贿,徇私舞弊,枉法裁决行为等。根据《人民检察院检察建议工作规定》,人民检察院可以直接向本院所办理案件的涉案单位、本级有关主管机关以及其他有关单位提出检察建议。检察机关在办理虚假诉讼案件中,发现仲裁裁决虚假的,应当依法发出检察建议要求纠正;发现仲裁员涉嫌枉法仲裁犯罪的,依法移送犯罪线索。
[Relevant Regulations] 【相关规定】
Article 235 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法北京大学互联网法律中心》第二百三十五条
Article 1 of the Notice of the Supreme People's Court and the Supreme People's Procuratorate on Issuing the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning Legal Supervision over Civil Enforcement Activities 最高人民法院、最高人民检察院《关于民事执行活动法律监督若干问题的规定》第一条
Paragraph 3 of Article 1 and paragraph 1 of Article 2 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases regarding False Action 最高人民法院、最高人民检察院《关于办理虚假诉讼刑事案件适用法律若干问题的解释》第一条第三款、第二条第一款
Article VIII of the Guiding Opinions of the Supreme People's Court on Preventing and Punishing False Action 最高人民法院《关于防范和制裁虚假诉讼的指导意见》第八条
Articles 58 and 59 of the Arbitration Law of the People's Republic of China 中华人民共和国仲裁法》第五十八条、第五十九条
Article 49 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China 中华人民共和国劳动争议调解仲裁法》第四十九条
Article 3 of the Provisions on Procuratorial Recommendation Work of People's Procuratorates 人民检察院检察建议工作规定》第三条
False Action Supervision Case Involving Traffic Accident Insurance Claims of Jiangxi-based Xiong A et al. 江西熊某等交通事故保险理赔虚假诉讼监督案
(SPP Cases No. 56) (检例第56号)
[Keywords] 【关键词】
Insurance claims, falsification of evidence, civil appeal 保险理赔 伪造证据 民事抗诉
[Key Point] 【要旨】
A false action occurs when an action is filed in the name of plaintiff without authority, by false evidence, false representations, or otherwise, to obtain an effective adjudicative document from the court and illegally acquire insurance indemnities. Procuratorial authorities shall, when discovering clues to false action cases in the course of performing their duties, strengthen their capability of clue discovery, investigation and verification, ascertain the facts of violations, and correct erroneous adjudications. 假冒原告名义提起诉讼,采取伪造证据、虚假陈述等手段,取得法院生效裁判文书,非法获取保险理赔款,构成虚假诉讼。检察机关在履行职责过程中发现虚假诉讼案件线索,应当强化线索发现和调查核实的能力,查明违法事实,纠正错误裁判。
[Basic Facts] 【基本案情】
On October 21, 2012, Zhang A driving a car collided with Xiong A driving a motorcycle, causing injury to Xiong A and damage to vehicles. According to the Written Traffic Accident Liability Determination, Zhang A was subject to the whole liability, and Xiong A was not liable. The injury of Xiong A was determined as level-nine disability by judicial appraisal. For the car driven by Zhang A, compulsory auto liability insurance and third-party liability insurance were bought from A Insurance Company. 2012年10月21日,张某驾驶轿车与熊某驾驶摩托车发生碰撞,致使熊某受伤、车辆受损,交通事故责任认定书认定张某负事故全部责任,熊某无责任。熊某伤情经司法鉴定为九级伤残。张某驾驶的轿车在甲保险公司投保交强险和商业第三者责任险。
After the accident, Xiong A agreed on the recommendation of another person that Zhou A negotiated with the insurance company about insurance claims in the case, but did not authorize Zhou A to sue. Zhou A thus paid 50,000 yuan to Xiong A. Zhang A also agreed on the recommendation of the same person to authorize Zhou A to handle the matters of insurance indemnities in the case and issued a Special Power of Attorney, authorizing representation in litigation. On March 18, 2013, Zhou A sued in the Xinzhou District People's Court of Shangrao City in the name of Xiong A without authority, signed the name of Xiong A on the written complaint and power of attorney without authority, and signed the name of the attorney on the transcripts of trial, transcripts of judgment pronunciation, and acknowledgment of service without authority, without the knowledge of Xiong A and the "attorney." In the case, Zhou A also participated in the action as the litigation representative of Zhang A. 事故发生后,熊某经他人介绍同意由周某与保险公司交涉该案保险理赔事宜,但并未委托其提起诉讼,周某为此向熊某支付了5万元。张某亦经同一人介绍同意将该案保险赔偿事宜交周某处理,并出具了委托代理诉讼的《特别授权委托书》。2013年3月18日,周某冒用熊某的名义向上饶市信州区人民法院提起诉讼,周某冒用熊某名义签署起诉状和授权委托书,冒用委托代理人的名义签署庭审笔录、宣判笔录和送达回证,熊某及被冒用的“委托代理人”对此均不知情。该案中,周某还作为张某的诉讼代理人参加诉讼。
When the case-related accident occurred, Xiong A held rural household registration, was a reinforcing bar worker, and resided in A Village, Shangrao County. In order to obtain high-value insurance indemnities, Zhou A falsified proof of company and payrolls and applied to the public security authorities for proof by false materials, evidencing that Xiong A worked and resided in the county downtown from September 2011 to October 2012. On June 17, 2013, the Xinzhou District People's Court of Shangrao City entered the Civil Judgment (No. 470 [2013], First, Civil Division I, Xin), ordering A Insurance Company to indemnify plaintiff Xiong A to the extent of sum insured for medical expenses, disability, living expenses of the dependents of Xiong A, and the like, amounting to 118,723.33 yuan. A Insurance Company appealed against the first-instance judgment to the Intermediate People's Court of Shangrao City. On October 18, 2013, the Intermediate People's Court of Shangrao City entered the Civil Consent Judgment (No. 573 [2013], Final, Civil Division I, Intermediate, Rao), confirming that A Insurance Company should indemnify plaintiff Xiong A for medical expenses, disability, living expenses of the dependents of Xiong A, and the like, amounting to 106,723 yuan 此外,本案事故发生时,熊某为农村户籍,从事钢筋工工作,居住上饶县某某村家中,而周某为实现牟取高额保险赔偿金的目的,伪造公司证明和工资表,并利用虚假材料到公安机关开具证明,证明熊某在2011年9月至2012年10月在县城工作并居住。2013年6月17日,上饶市信州区人民法院作出(2013)信民一初字第470号民事判决,判令甲保险公司在保险限额内向原告熊某赔偿医疗费、伤残赔偿金、被抚养人生活费等共计118723.33元。甲保险公司不服一审判决,上诉至上饶市中级人民法院。2013年10月18日,上饶市中级人民法院作出(2013)饶中民一终字第573号民事调解书,确认甲保险公司赔偿熊某医疗费、残疾赔偿金、被抚养人生活费等共计106723元。
[Supervision by the Procuratorial Authority] 【检察机关监督情况】
Discovery of Clues: In March 2016, the procuratorial authority of Shangrao City discovered in the performance of its duties that Xiong A sued after the people's court had entered an effective adjudication. After accessing the relevant files, the procuratorial authority discovered that Zhou A had been a representative in more than ten road traffic accident liability cases relating to insurance claims in the past two years and that there were suspicious issues such as failure of parties to appear in court, incomplete power of attorney, and manifest inconsistency between the proof of work and the basic individual information of Xiong A. The procuratorial authority preliminarily suspected a false action. 线索发现 2016年3月,上饶市检察机关在履行职责中发现,熊某在人民法院作出生效裁判后又提起诉讼,经调阅相关卷宗,发现周某近两年来代理十余件道路交通事故责任涉保险索赔案件,相关案件中存在当事人本人未出庭、委托代理手续不全、熊某的工作证明与个人基本情况明显不符等疑点,初步判断有虚假诉讼嫌疑。
Investigation and Verification: The procuratorial authority focused on the following investigations and verifications based on case clues: first, the procuratorial authority ascertained from Xiong A that the written civil complaint dated March 18, 2013 was not the declaration of will by Xiong A, and the written complaint was not signed by Xiong A in person, and Xiong A had no knowledge of the action and neither knew of plaintiff's attorney contained in the written complaint nor authorized the attorney to participate in the action; second, the procuratorial authority inquired the relevant entities about the habitual residence and place of work of Xiong A before loss incurred and ascertained that Zhou A instructed a car service company to falsify the proof of work and proof of residence of Xiong A in order to obtain illegal benefits according to the compensation standard based on the per capita disposable income of urban residents; third, the procuratorial authority examined the 13 road traffic accident insurance claims cases and discovered that they were all suspected of false actions, and the present case was the most typical; and fourth, the procuratorial authority promptly referred case clues to the public security authorities and further verified the facts that Zhou A falsified litigants by misappropriating others' names, power(s) of attorney, and proof of work and defrauded the public security authorities of supporting documents by false evidential materials. 调查核实 根据案件线索,检察机关重点开展了以下调查核实工作:一是向熊某本人了解情况,查明2013年3月18日的民事起诉状非熊某本人的意思表示,起诉状中签名也非熊某本人所签,熊某本人对该起诉讼毫不知情,并不认识起诉状中所载原告委托代理人,亦未委托其参加诉讼;二是向有关单位核实熊某出险前的经常居住地和工作地,查明周某为套用城镇居民人均可支配收入的赔偿标准获取非法利益,指使某汽车服务公司伪造了熊某工作证明和居住证明;三是对周某代理的13件道路交通事故保险理赔案件进行梳理,发现均涉嫌虚假诉讼,本案最为典型;四是及时将线索移送公安机关,进一步查实了周某通过冒用他人名义虚构诉讼主体、伪造授权委托书、伪造工作证明以及利用虚假证据材料骗取公安机关证明文件等事实。
Supervisory Opinions: On June 26, 2016, the People's Procuratorate of Shangrao City requested an appeal. On November 5, 2016, the People's Procuratorate of Jiangxi province appealed, of the opinion that the Civil Consent Judgment (No. 573 [2013], Final, Civil Division I, Intermediate, Rao) entered by the Intermediate People's Court of Shangrao City was false mediation and that Zhou A falsified the plaintiff's written complaint, brought a false action by misappropriating the names of plaintiff and litigation representative, illegally obtained high-value insurance indemnities, disrupted the litigant order, and harmed the public interest and the lawful rights and interests of others. 监督意见 2016年6月26日,上饶市人民检察院提请抗诉。2016年11月5日,江西省人民检察院提出抗诉,认为上饶市中级人民法院(2013)饶中民一终字第573号民事调解书系虚假调解,周某伪造原告起诉状、假冒原告及其诉讼代理人提起虚假诉讼,非法套取高额保险赔偿金,扰乱诉讼秩序,损害社会公共利益和他人合法权益。
Supervisory Results: On August 1, 2017, the Higher People's Court of Jiangxi province entered the civil ruling (No. 45 [2017], Retrial, Civil Division, Gan), stating that the case was a false action brought in the court by Zhou A by falsifying the litigation representative of Xiong A, Xiong A and the litigation representative neither filed nor participated in the action in person, and the first-instance judgment and the second-instance consent judgment were both erroneous, ruling that they should be set aside, and the trial procedure should be terminated. The Higher People's Court of Jiangxi province entered the decision on civil punishment (No. 45 [2017], Retrial, Civil Division, Gan), imposing civil punishment on Zhou A. In January 2019, the Intermediate People's Court of Shangrao City decided to remove Dai A, first-instance judge and associate chief judge of the Case Filing Division of the Xinzhou District People's Court, from his office. 监督结果 2017年8月1日,江西省高级人民法院作出(2017)赣民再第45号民事裁定书,认为本案是一起由周某假冒熊某诉讼代理人向法院提起的虚假诉讼案件,熊某本人及被冒用的诉讼代理人并未提起和参加诉讼,原一审判决和原二审调解书均有错误,裁定撤销,终结本案审理程序。同时,江西省高级人民法院还作出(2017)赣民再第45号民事制裁决定书,对周某进行民事制裁。2019年1月,上饶市中级人民法院决定对一审法官、信州区人民法院立案庭副庭长戴某给予撤职处分。
[Guiding Significance] 【指导意义】
Procuratorial authorities shall, when handling false civil action supervision cases, strengthen their capability of clue discovery, investigation and verification. False actions are particularly unnoticeable and deceitful and are difficult to identify only by action activities, requiring prosecutors to keep a keen eye for clues in the performance of their duties. In the case, in terms of clue discovery, the procurators paid attention to the following: first, the abnormality of the trial process, to wit, the plaintiff's representative either was unable to express opinions or made contradictory representations or defenses; second, case materials and evidence were abnormal, to wit, the proof of work of Xiong A was manifestly inconsistent with his (her) basic information and experiences; and third, the mediation and termination of the case were abnormal, to wit, though A Insurance Company did not submit new evidence in the second instance, the plaintiff's representative voluntarily proposed reducing the amount of insurance indemnities in order to quickly reach a mediation agreement, which was contrary to common sense. Based on discovered abnormalities as clues, in-depth investigation and verification are the key to resolving difficult issues in cases. According to the specific circumstances of a case, investigation measures may be comprehensively used, such as interviewing the relevant parties or insiders, consulting, accessing and copying relevant legal documents or evidential materials and case files, checking financial accounts and records of bank deposits, investigation, appraisals, audit, and requesting professional advice from relevant authorities. At the same time, communication and cooperation with public security authorities, people's courts, and justice authorities shall be voluntarily strengthened. In the case, the procuratorial authority promptly referred clues to the criminal case and ascertained the facts of the false action of Zhou A, by the means of public security authorities' criminal investigation and obtainment of evidence. 检察机关办理民事虚假诉讼监督案件,应当强化线索发现和调查核实的能力。虚假诉讼具有较强的隐蔽性和欺骗性,仅从诉讼活动表面难以甄别,要求检察人员在履职过程中有敏锐的线索发现意识。本案中,就线索发现而言,检察人员注重把握了以下几个方面:一是庭审过程的异常,“原告代理人”或无法发表意见,或陈述、抗辩前后矛盾;二是案件材料和证据异常,熊某工作证明与其基本情况、履历明显不符;三是调解结案异常,甲保险公司二审中并未提交新的证据,“原告代理人”为了迅速达成调解协议,主动提出减少保险赔偿数额,不符合常理。以发现的异常情况为线索,开展深入的调查核实工作,是突破案件瓶颈的关键。根据案件具体情况,可以综合运用询问有关当事人或者知情人,查阅、调取、复制相关法律文书或者证据材料、案卷材料,查询财务账目、银行存款记录,勘验、鉴定、审计以及向有关部门进行专业咨询等调查措施。同时,应主动加强与公安机关、人民法院、司法行政部门的沟通协作。本案中,检察机关及时移送刑事犯罪案件线索,通过公安机关侦查取证手段,查实了周某虚假诉讼的事实。
[Relevant Regulations] 【相关规定】
Article 208 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第二百零八条
Article 23 of the Rules for the Supervision over Civil Proceedings by the People's Procuratorates (for Trial Implementation)聊五分钱的天吗 人民检察院民事诉讼监督规则(试行)》第二十三条
     
     
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