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Wang Qian v. Lu Rongfang, Ningxia Construction Group Real Estate Development Co., Ltd. and Third Party Ningxia Hengchangsheng Real Estate Development Co., Ltd. (Dispute over Private Lending)
王谦与卢蓉芳、宁夏建工集团房地产开发有限公司、第三人宁夏恒昌盛房地产开发有限公司民间借贷纠纷案
【法宝引证码】

Wang Qian v. Lu Rongfang, Ningxia Construction Group Real Estate Development Co., Ltd. and Third Party Ningxia Hengchangsheng Real Estate Development Co., Ltd. (Dispute over Private Lending)
王谦与卢蓉芳、宁夏建工集团房地产开发有限公司、第三人宁夏恒昌盛房地产开发有限公司民间借贷纠纷案
Wang Qian v. Lu Rongfang, Ningxia Construction Group Real Estate Development Co., Ltd. and Third Party Ningxia Hengchangsheng Real Estate Development Co., Ltd. (Dispute over Private Lending) 王谦与卢蓉芳、宁夏建工集团房地产开发有限公司、第三人宁夏恒昌盛房地产开发有限公司民间借贷纠纷案
[Judgment Abstract] 【裁判摘要】
Where a party winning or partially winning the original trial fails to appeal, makes it clear before the appellate court that the original judgment is correct and should be upheld, but files a petition for retrial after the original judgment is upheld by the appeal court, the party's petition for retrial should not be supported for lack of any benefit from the retrial. Otherwise, it would be actually encouragement of or indifference to the abuse of the retrial procedure by dishonest parties, resulting in the abuse of procedural rights and the waste of judicial resources. 一审胜诉或部分胜诉的当事人未提起上诉,且在二审中明确表示一审判决正确应予维持,在二审判决维持原判后,该当事人又申请再审的,因其缺乏再审利益,对其再审请求不应予以支持,否则将变相鼓励或放纵不守诚信的当事人滥用再审程序,导致对诉讼权利的滥用和对司法资源的浪费。
Supreme People's Court of the People's Republic of China 中华人民共和国最高人民法院
Civil Ruling 民事裁定书
No. 2483 [2017], Civil, Petition, SPC (2017)最高法民申2483号
BASIC FACTS 
Retrial Petitioner (plaintiff and appellee): Wang Qian, male, Han ethnicity, born on September 27, 1985, domiciled at Jinfeng District, Yinchuan, Ningxia Hui Autonomous Region. 再审申请人(一审原告、二审被上诉人):王谦。
Respondent (defendant and appellant): Lu Rongfang, female, Han ethnicity, born on October 23, 1975, domiciled at Dongyang City, Zhejiang Province. 被申请人(一审被告、二审上诉人):卢蓉芳。
Respondent (defendant): Ningxia Construction Group Real Estate Development Co., Ltd., domiciled at North No. 2, No. 6 Road, Central Avenue, Jinfeng District, Yinchuan City, Ningxia Hui Autonomous Region. 被申请人(一审被告):宁夏建工集团房地产开发有限公司。
Legal Representative: Bai Yuncheng, Chairman of the Board of Directors. 法定代表人:白云程,该公司董事长。
Attorney: Liu Yanning, Ningxia Fude Law Firm 委托诉讼代理人:刘艳宁,宁夏辅德律师事务所律师。
Third Party in the Original Trial: Ningxia Hengchangsheng Real Estate Development Co., Ltd., domiciled at No. 32, Jinbo Neighborhood, Huaiyuan East Road, Xixia District, Yinchuan City, Ningxia Hui Autonomous Region. 一审第三人:宁夏恒昌盛房地产开发有限公司。
Legal Representative: Xiao Tianjuan, Chairman of the Board of Directors. 法定代表人:肖天娟,该公司董事长。
Against the Civil Ruling No. 278 [2016], Final, Civil, Ningxia entered by the Higher People's Court of Ningxia Hui Autonomous Region for a dispute over private lending with Lu Rongfang and Ningxia Construction Group Real Estate Development Co., Ltd. (“Construction Group”), the respondents, and Ningxia Hengchangsheng Real Estate Development Co., Ltd. (“Hengchangsheng Company”), a third party in the original trial, Wang Qian, the retrial petitioner, petitioned this Court for retrial of the case. This Court formed a collegial panel in accordance with the law to review the case, and the review has concluded. 再审申请人王谦因与被申请人卢蓉芳、宁夏建工集团房地产开发有限公司(以下简称建工集团)、一审第三人宁夏恒昌盛房地产开发有限公司(以下简称恒昌盛公司)民间借贷纠纷一案,不服宁夏回族自治区高级人民法院(2016)宁民终278号民事判决,向本院申请再审。本院依法组成合议庭对本案进行了审查,现已审查终结。
In the petition for retrial, Wang Qian alleges that the case falls under the circumstances set out in subparagraphs (2) and (6) of Article 200 of the Civil Procedure Law of the People's Republic of China and should be granted a retrial. Wang Qian requests this Court: (1) to revoke paragraph 2 of Civil Judgment No. 281 [2015], First, Civil, Yinchuan, revoke Civil Judgment No. 278 [2016], Final, Civil, Ningxia, and retry this case in accordance with the law; (2) to rule that Lu Rongfang should repay Wang Qian the principal of the loan of 7.08 million yuan and pay interest thereon at an annual interest rate of 24% for the period from September 6, 2015, to the date of actual full repayment; (3) to rule that Construction Group should be jointly liable for paying the principal and interest and should not dispose of the share of the land use right in the Xinyiyuan Project equivalent to the amount of the principal and interest in this case before paying off the principal and interest; and (4) to rule that the expenses incurred in the original trial, trial on appeal, and retrial of this case should be assumed by Lu Rongfang and Construction Group. Facts and reasons: (1) The incomplete finding of facts by the court of first instance and the court of second instance is the root cause of errors in their judgments. Prior to the loan, Wang Qian and Lu Rongfang did not know each other. On December 24, 2013, Construction Group auctioned the right to use the land involved in the case, and Lu Rongfang was one of the buyers. Because Lu Rongfang could not afford the payment for the land transfer, Construction Group introduced her to Wang Qian so that she could borrow money from him. Deliberately concealing the fact from Wang Qian that all income from the project would be owned by Hengchangsheng Company as agreed in an Agreement on Joint Development of Real Estate signed by Construction Group and Hengchangsheng Company on March 20, 2014, Construction Group and Lu Rongfang claimed that the land was jointly developed by Construction Group and Lu Rongfang, which misled Wang Qian into thinking that Lu Rongfang owned the right to use the land. It was because of the supervisory commitments made by Construction Group that Wang Qian lent the money to Lu Rongfang. Although Construction Group signed the Loan Agreement, it could neither perform its supervisory responsibility in the agreement nor help Wang Qian realize his claims. The court of first instance and the court of second instance failed to find such a major fault of Construction Group in their judgments. (2) The court of first instance and the court of second instance failed to impose joint liability on Construction Group for the debt, which is erroneous fact finding and improper application of law. The Loan Agreement provides: “Where the project fails to be jointly developed by Construction Group and Party B (Lu Rongfang), Party B must pay off the Debt before making any disposition of the right to use the land, and Party B may dispose of the right to use the land only after paying off the Debt. Party A shall have no liability for all debts arising in the process of development, such as construction payments and labor service charges. After Party B pays off the Debt to Party A, the security interest in the land shall be discharged.” This clause is applicable on the premise that Lu Rongfang had the right to use the land so that Construction Group could supervise her disposition of land without paying off the debt. The land use right purchased by Lu Rongfang was her contribution to Hengchangsheng Company as a shareholder, and the land development project was jointly carried out by Construction Group and Hengchangsheng Company. The court of first instance knew that Lu Rongfang did not have the right to use the land involved in the case but failed to hold Construction Group liable, which was seriously inconsistent with the facts. By fraud and concealment in the process of borrowing, Construction Group and Lu Rongfang caused Wang Qian to sign the Loan Agreement and lend the money contrary to his true declaration of intent. The Loan Agreement should be revoked. Pursuant to Article 58 of the Contract Law of the People's Republic of China爬数据可耻, Construction Group should assume joint liability for the debt. (3) Instead of revoking the Loan Agreement, the court of first instance and the court of second instance determined in their judgments that the Loan Agreement was legal and effective, but failed to rule that Construction Group should fulfill its supervisory responsibility as agreed in the agreement. The judgments are wrong. 王谦申请再审称,本案符合《中华人民共和国民事诉讼法》第二百条第二项、第六项规定的情形,应予再审。请求:1.撤销(2015)银民初字第281号民事判决第二项,撤销(2016)宁民终278号民事判决,依法对本案再审;2.改判卢蓉芳偿还王谦借款本金708万元,并按年利率24%从2015年9月6日支付利息至实际清偿日止;3.建工集团对上述借款本息承担共同清偿责任,同时判令建工集团在未清偿全部借款本息前,不得处置与本案借款本息同等金额的欣益苑项目土地使用权份额;4.本案一审、二审、再审费用由卢蓉芳、建工集团承担。事实和理由:一、一、二审判决认定事实不完整是造成判决错误的根本原因。借款发生前,王谦与卢蓉芳并不认识。建工集团于2013年12月24日拍卖涉案土地的使用权,卢蓉芳为买受人之一。因卢蓉芳无力支付土地出让金,建工集团介绍卢蓉芳从王谦处借款。建工集团和卢蓉芳故意向王谦隐瞒建工集团与恒昌盛公司已于2014年3月20日就涉案土地签订《联合开发房地产协议》以及约定项目全部收益归恒昌盛公司所有的事实,称该土地系建工集团与卢蓉芳共同开发,致使王谦误以为卢蓉芳拥有该土地使用权,从而因建工集团作出的监管承诺而将款项出借给卢蓉芳。建工集团虽签订《借款协议》,但根本无法按照协议的约定履行监管职责,无法协助王谦实现债权,一、二审判决对建工集团的重大过错未予认定。二、一、二审法院未判令建工集团承担共同清偿责任,认定事实错误,适用法律不当。《借款协议》约定:“如该项目未能由建工集团与乙方(卢蓉芳)联合开发时,乙方做出该土地使用权的任何处置前,必须清偿该债务,乙方清偿该债务后方可处置该土地使用权。甲方对开发过程中的全部义务如工程款、劳务费等均不担责。乙方清偿了甲方全部债务后,该土地担保自行解除。”该条款适用的前提是卢蓉芳享有土地使用权,建工集团才能对卢蓉芳未清偿债务而处置土地的行为进行监管。卢蓉芳所购买的土地使用权是其作为股东对恒昌盛公司的出资,土地项目由建工集团与恒昌盛公司联合开发。一审法院明知卢蓉芳对涉案土地不享有使用权,却未认定建工集团的责任,与事实严重不符。基于建工集团、卢蓉芳在借款过程中采取欺诈、隐瞒的手段,使王谦在违背真实意思表示的情况下签订了《借款协议》并出借款项,因此《借款协议》应当被撤销。根据《中华人民共和国合同法开弓没有回头箭》第五十八条的规定,建工集团应当承担共同清偿责任。三、一、二审判决未撤销《借款协议》,而是认定《借款协议》合法有效,但却又未按协议约定判决建工集团履行监管职责,判决结果错误。
In its pleading, Construction Group contends that: (1) This case does not fall under any of the statutory circumstances for retrial, and Wang Qian's petition for retrial is unfounded. The facts found by the court of first instance and the court of second instance are consistent with the agreement between the parties, and both courts ruled that Lu Rongfang should repay the loan principal and pay interest to Wang Qian under the Loan Agreement. The judgments of both courts are not inappropriate. Construction Group is not a lender, borrower, or guarantor, and it is also clearly agreed in the Loan Agreement that it is only responsible for supervision, rather than as a guarantor. Therefore, it should not take any responsibility in this case. Wang Qian's claim that Construction Group should assume joint liability has no factual and legal basis and violates the principle of relativity of a contract. The “land use right in the Xinyiyuan project” that Construction Group should not dispose of as Wang Qian claimed was jointly purchased by Lu Rongfang, Xiao Tianjuan and Huang Jian. Construction Group is not a holder of the right to use the land, and has no right to dispose of any share of the land use right. (2) Wang Qian requested that interest be paid until “the date of delivery as determined in the effective judgment” in the original trial but be paid until “the date of actual payment in full” in his retrial petition. In the original trial, Wang Qian requested the court to rule that “Construction Group should not dispose of the share of the land use right in the Xinyiyuan Project equivalent to the amount of the principal and interest in this case before Lu Rongfang pays off the principal and interest,” but requested that “Construction Group should not dispose of the share of the land use right in the Xinyiyuan Project equivalent to the amount of the principal and interest in this case before paying off the principal and interest.” Wang Qian's claims in retrial are inconsistent with his claims in the original trial, and should not fall within the scope of review in the retrial procedure. (3) Wang Qian failed to appeal, and is applying for the enforcement of the effective judgment, indicating that he recognizes the judgments of both courts. Wang Qian's petition for retrial increases is frivolous. 建工集团提交意见称,一、本案不存在法定再审情形,王谦的再审申请不能成立。一、二审法院认定的事实与当事人约定一致,并按《借款协议》的约定,判决卢蓉芳向王谦偿还借款本金及利息,一、二审判决结果并无不当。我公司并非出借人或借款人、担保人,《借款协议》中也明确约定我公司只监管,不担保。因此,我公司在本案中不应承担任何责任。王谦要求我公司承担共同还款责任无事实及法律依据,违反合同相对性原则。王谦主张我公司不得处置的“欣益苑项目土地使用权”,已被卢蓉芳和肖天娟、黄剑共同拍买竞得,我公司并非该土地的使用权人,对此已不享有权利,无权处置该土地使用权份额。二、王谦一审时请求支付利息至“生效判决确定给付之日止”,而再审请求利息支付至“实际清偿日止”。王谦一审请求判令“建工集团在卢蓉芳未清偿全部借款本息前,不得处置与本案借款本息同等金额的欣益苑项目土地使用权份额”,而再审请求判令“在建工集团未清偿全部借款本息前,不得处置与本案借款本息同等金额的欣益苑项目土地使用权份额。”王谦的再审请求均与其一审诉讼请求不一致,不应属于再审程序的审查范围。三、王谦未对本案提起过上诉,且正在申请执行已生效判决,说明其认可一、二审判决内容,王谦申请再审系增加当事人的诉累。
JUDGMENT'S REASONING 
This Court reviewed the case based on the cause of retrial claimed by Wang Qian to determine whether Wang Qian's retrial petition should be granted. 本院经审查认为,根据王谦的申请再审事由,本院对本案是否应当支持王谦的再审申请进行审查。
Paragraph 1 of Article 164 of the Civil Procedure Law of the People's Republic of China provides: “Against a judgment of a local people's court of first instance, a party shall have the right to file an appeal with the people's court at the next higher level within 15 days from the date of service of the written judgment.” Article 168 of it provides: “The people's court of second instance shall review the facts and application of law in relation to the claims in appeal.” According to the above provisions, “final after two trials” is a basic system of China's civil litigation. A party considering the original judgment erroneous should appeal to exercise his procedural rights before a court of second instance, that is, the party should first select the routine remedial procedures within the designed levels of civil procedure to seek remedy for his rights through the civil procedures at first and second instances. The retrial procedure is a special remedial procedure granted to a party when a significant error may exist in the effective judgment. If a party still believes that the effective judgment is wrong after exhausting normal remedial approaches, he may petition the people's court for retrial. Where a party winning or partially winning the original trial fails to appeal, makes it clear before the appellate court that the original judgment is correct and should be upheld, but files a petition for retrial after the original judgment is upheld by the appeal court, the party's petition for retrial should not be supported for lack of any benefit from the retrial. Otherwise, it would be actually encouragement of or indifference to the abuse of the retrial procedure by dishonest parties, and turn it from a special procedure into a formal procedure, not only resulting in the abuse of procedural rights and the waste of judicial resources but also violating the basic principle of the “final after two trials” system. 中华人民共和国民事诉讼法》第一百六十四条第一款规定:“当事人不服地方人民法院第一审判决的,有权在判决书送达之日起十五日内向上一级人民法院提起上诉。”第一百六十八条规定:“第二审人民法院应当对上诉请求的有关事实和适用法律进行审查。”依据上述法律规定,两审终审制是我国民事诉讼的基本制度。当事人如认为一审判决错误的,应当提起上诉,通过二审程序行使诉讼权利。即当事人首先应当选择民事诉讼审级制度设计内的常规救济程序,通过民事一审、二审程序寻求权利的救济。再审程序是针对生效判决可能出现的重要错误而赋予当事人的特别救济程序,如在穷尽了常规救济途径之后,当事人仍然认为生效裁判有错误的,其可以向人民法院申请再审。对于一审胜诉或部分胜诉的当事人未提起上诉,二审判决维持原判且该当事人在二审中明确表示一审判决正确应予维持的当事人,因为其缺乏再审利益,对其再审请求不应予以支持,否则将变相鼓励或放纵不守诚信的当事人滥用再审程序,从特殊程序异化为普通程序。这不仅是对诉讼权利的滥用和对司法资源的浪费,也有违两审终审制的基本原则。
In this case, the Intermediate People's Court of Yinchuan City, Ningxia Hui Autonomous Region made the Civil Judgment No. 281 [2015], First, Civil, Yinchuan to order Lu Rongfang to repay Wang Qian the principal of a loan of 7.08 million yuan and the interest thereon (calculated at the annual interest rate of 24% for the period from September 6, 2015, to the date of delivery as determined in the judgment) and dismiss Wang Qian's other claims. Wang Qian did not file an appeal, indicative of his acceptance of the judgment of the court of first instance. Lu Rongfang appealed, alleging that Construction Group deceived Wang Qian into providing a loan to Lu Rongfang, it was because of the commitments made by Construction Group that Wang Qian provided the loan and therefore Construction Group should be liable to guarantee the loan. As to Lu Rongfang's appeal claims and grounds, Wang Qian argued that the original judgment, in which the facts are clear, the evidence is sufficient and the applicable law is correct, should be upheld. After reviewing Lu Rongfang's appeal only, the Higher People's Court of Ningxia Hui Autonomous Region as the court of second instance made a corresponding judgment, which conforms to Article 323

会让它误以为那是爱情

of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China: “The people's court of second instance shall try a case around the party's claims in appeal. Where a party does not file claims, the people's court shall not try the case, unless the first-instance judgment violates prohibitive provisions in laws or damages the interests of the state, public interests, or the legitimate rights and interests of other persons.” Wang Qian now claims in his petition for retrial that the judgments of the courts of first and second instances omit facts and damage his legal rights and interests, which is obviously contrary to his conduct of failing to appeal after the court of first instance handed down its judgment and requesting the court of second instance to uphold the original judgment. Moreover, by Civil Judgment No. 278 [2016], Final, Civil, Ningxia, the Higher People's Court of Ningxia Hui Autonomous Region dismissed the appeal from Lu Rongfang and upheld the original judgment without changing the determination on Wang Qian's rights in the original judgment. Therefore, in the absence of any benefit from the retrial, this Court will not support Wang Qian's petition for retrial.
 本案中,宁夏回族自治区银川市中级人民法院作出(2015)银民初字第281号民事判决,判令卢蓉芳偿还王谦借款本金708万元及利息(以年利率24%计算,自2015年9月6日起计付至判决确定的给付之日),驳回王谦的其他诉讼请求,王谦对此未提出上诉,应视为王谦接受一审判决结果。卢蓉芳对一审判决不服提起上诉称,建工集团欺骗王谦向卢蓉芳提供借款,王谦系因建工集团出具的承诺才提供借款,建工集团应当对借款承担担保责任。王谦针对卢蓉芳的上诉请求及理由辩称,一审判决认定事实清楚,证据充分,适用法律正确,应予维持。宁夏回族自治区高级人民法院二审仅审查卢蓉芳的上诉请求,并作出相应判决,符合《最高人民法院关于适用<中华人民共和国民事诉讼法>的解释中小学减的负已经加到家长身上了》第三百二十三条“第二审人民法院应当围绕当事人的上诉请求进行审理。当事人没有提出请求的,不予审理,但一审判决违反法律禁止性规定,或者损害国家利益、社会公共利益、他人合法权益的除外”之规定。现王谦提出再审请求,主张一、二审判决遗漏事实、损害其合法权益,明显与其在本案一审判决后未上诉、二审诉讼期间要求维持一审判决的行为相悖,且宁夏回族自治区高级人民法院作出的(2016)宁民终278号民事判决,驳回卢蓉芳的上诉请求,维持原审判决,未改变一审判决对王谦权利的判定,故王谦的再审申请缺乏再审利益,本院对王谦的再审申请不予支持。
JUDGMENT 
In accordance with the provisions of paragraph 1 of Articles 204 of the Civil Procedure Law of the People's Republic of China and paragraph 2 of Article 395 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, this Court rules: 综上,本院依照《中华人民共和国民事诉讼法》第二百零四条第一款、《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》第三百九十五条第二款之规定,裁定如下:
To dismiss Wang Qian's petition for retrial. 驳回王谦的再审申请。
Presiding Judge: Yang Yongqing 审 判 长 杨永清
Judge: Wang Guoxian 审 判 员 汪国献
Judge: Li Tao 审 判 员 李 涛
July 27, 2017 二〇一七年七月二十七日
Judge Assistant: Huyan Jing 法官助理 呼延静
Clerk: Chen Xiaowen 书 记 员 陈小雯
     
     
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