>>>welcome visitor, haven't logged in. Login
Subscribe Now Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
No.4 of Nine Representative Cases Published by the Supreme People's Court concerning Evasion of Enforcement: Hubei Hongxin Construction Engineering Co. Ltd. and Tuanfeng County Fanggaoping Construction Company v. Yiyuan Keda Magnetic Materials Co. Ltd. and Huanggang Zhongji Automobile Sales Co. Ltd. (case of enforcement of judgment for disputes over guaranteed project payments)
最高人民法院关于反规避执行的九起典型案例之四:湖北宏鑫建设工程有限公司、团风县方高坪建筑公司与亿源科大磁性材料有限公司及黄冈中机汽车销售有限公司工程款担保纠纷执行案
【法宝引证码】

No.4 of Nine Representative Cases Published by the Supreme People's Court concerning Evasion of Enforcement: Hubei Hongxin Construction Engineering Co. Ltd. and Tuanfeng County Fanggaoping Construction Company v. Yiyuan Keda Magnetic Materials Co. Ltd. and Huanggang Zhongji Automobile Sales Co. Ltd. (case of enforcement of judgment for disputes over guaranteed project payments)
(case of enforcement of judgment for disputes over guaranteed project payments)
最高人民法院关于反规避执行的九起典型案例之四:湖北宏鑫建设工程有限公司、团风县方高坪建筑公司与亿源科大磁性材料有限公司及黄冈中机汽车销售有限公司工程款担保纠纷执行案
No.4 of Nine Representative Cases Published by the Supreme People's Court concerning Evasion of Enforcement: Hubei Hongxin Construction Engineering Co. Ltd. and Tuanfeng County Fanggaoping Construction Company v. Yiyuan Keda Magnetic Materials Co. Ltd. and Huanggang Zhongji Automobile Sales Co. Ltd. (case of enforcement of judgment for disputes over guaranteed project payments) 最高人民法院关于反规避执行的九起典型案例之四:湖北宏鑫建设工程有限公司、团风县方高坪建筑公司与亿源科大磁性材料有限公司及黄冈中机汽车销售有限公司工程款担保纠纷执行案
1. Case Summary爱法律,有未来
In Hubei Hongxin Construction Engineering Co. Ltd. (hereinafter referred to as “Hongxin Company”) and Tuanfeng County Fanggaoping Construction Company (hereinafter referred to as “Fanggaoping Construction Company”) v. Yiyuan Keda Magnetic Materials Co. Ltd. (hereinafter referred to as “Yiyuan Company”) and Huanggang Zhongji Automobile Sales Co. Ltd. (hereinafter referred to as “Zhongji Company”) for disputes over guarantee of project payments, the Intermediate People's Court of Huanggang, Hubei Province granted enforcement on March 3, 2008. Yiyuan Company refused to perform its obligations determined in the effective judgment on the grounds that its legal representative Ding (given name withheld) was a member of the Huanggang Committee of CPPCC and was incapable of repaying debts. After investigation, the court of enforcement found that there were deposits of only several yuan to several hundred yuan in the bank accounts of Yiyuan Company as registered with the People's Bank of China; its real estate had been mortgaged, and there was no other property available for enforcement; Zhongji Company had long gone out of business and had no property available for enforcement. On May 19, 2008, the enforcement applicant provided the court of enforcement with information suggesting that Yiyuan Company had received a payment for goods of 750,000 yuan remitted from Shenzhen. The enforcement personnel immediately checked the bank accounts of Yiyuan Company registered with the People's Bank of China and did not find such payment. Afterwards, the enforcement personnel discovered an account opened by Yiyuan Company at ICBC, which was not registered with the People's Bank of China, and found the payment in this account, but the payment had been transferred out of this account. After investigation, it was found that the payment was transferred to a personal account of Deng (given name withheld), the accountant of Yiyuan Company, on the same day when it was received. On the basis of the aforesaid findings, the court of enforcement held that Yiyuan Company was suspected of hiding assets and evading enforcement, and immediately froze the 650,000 yuan deposited in the personal account of Deng. Deng raised an objection to the enforcement, alleging that the sum in the frozen account was a loan repayment by Yiyuan Company to him and therefore was his personal property. The court of enforcement examined this objection. After a review of the accounts of Yiyuan Company and Deng, it was found that from November 2007 to May 2008, every large amount received (a total of 22 receipts, amounting to 1.565 million yuan) in the account of Yiyuan Company was transferred to the personal account of Deng on the day of receipt or the following day. The personal account of Deng showed no deposit records other than the 22 receipts from the accounts of Yiyuan Company. During the examination, Deng submitted a debt note bearing the seal of Yiyuan Company and a value of 860,000 yuan. However, no such borrowing was recorded in the account books of Yiyuan Company. The court of enforcement also found that: Deng, in his 50s, was a laid-off worker, his wife was unemployed and the financial condition of his family was not good. From this, the court of enforcement inferred that the lending relationship between Deng and Yiyuan Company was unreasonable. The court of enforcement ordered Deng to explain the source of funds and method of payment, and informed him of the legal consequences of making a false statement. Deng failed to provide a clear explanation and voluntarily withdrew the debt note. On the basis of the facts identified during examination, the court of enforcement concluded that Yiyuan Company was the actual owner of the sum of money in the account of Deng, and ruled to reject the objection raised by Deng. After signing for the ruling served on him, Deng filed an action for objection to enforcement to the court of enforcement, but withdrew it before the court session was opened.
......
 【案情摘要】湖北宏鑫建设工程有限公司(下称宏鑫公司)、团风县方高坪建筑公司(下称方高坪建筑公司)与亿源科大磁性材料有限公司(下称亿源公司)、黄冈中机汽车销售有限公司(下称中机公司)工程款担保纠纷执行一案,湖北省黄冈市中级人民法院于2008年3月3日立案执行。亿源公司以其法定代表人丁某为市政协委员的特殊身份及无还款能力为由拒不履行生效判决确定的义务。经执行法院调查,亿源公司在人民银行登记备案的几个银行账户均只有几元到几百元不等的存款,公司不动产已设定抵押,无其他可供执行财产;中机公司早已歇业,无可供执行财产。2008年5月19日,申请执行人向执行法院提供线索,亿源公司有75万元货款从深圳汇回。执行人员随即查询亿源公司在人民银行登记备案的几个银行账户,未发现该笔款项。后执行人员查询到亿源公司于工商银行开立的一账户(该账户未在人民银行备案),查到该笔汇款,但款项已被转走。经调查,该款汇入当天即转入亿源公司会计邓某个人账户。根据上述情况,执行法院认为亿源公司有隐匿资产、规避执行的嫌疑,立即冻结了邓某个人账户上的65万元存款。邓某提出执行异议,称被冻结账户上的款项系亿源公司偿还他的借款,系其个人财产。执行法院依法对异议进行审查,经核对亿源公司和邓某账户,发现自2007年11月至2008年5月,亿源公司账户所有大额资金(共22笔,156.5万元)均于到账当日或次日转入邓某个人账户,邓某个人账户除由公司账户转入的22笔款项外,无其他存款记录。审查过程中,邓某出示一份盖有亿源公司印章、金额为86万元的借条。经对亿源公司会计账目进行调查,没有该笔借款记录。执行法院查明,邓某50多岁,下岗职工,配偶无职业,家庭生活拮据。据此推断邓某与亿源公司的借贷关系不合常理。执行法院要求邓某说明资金来源和给付方式,并告知虚假陈述的法律责任。邓某含糊搪塞,主动要求收回借据。执行法院遂依审查中查明的情况,认定亿源公司为邓某账户款项的实际所有人,依法裁定驳回邓某的异议。邓某签收裁定后,向执行法院提起异议之诉,又于开庭前撤诉。
......

Dear visitor, you are attempting to view a subscription-based section of lawinfochina.com. If you are already a subscriber, please login to enjoy access to our databases. If you are not a subscriber, you can pay for a document through Online Pay and read it immediately after payment.
An entity user can apply for a trial account or contact us for your purchase.
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail: info@chinalawinfo.com

 
您好:您现在要进入的是北大法律英文网会员专区。
如您是我们英文用户可直接 登录,进入会员专区查询您所需要的信息;如您还不是我们 的英文用户;您可通过网上支付进行单篇购买,支付成功后即可立即查看本篇内容;
单位用户可申请试用或者来电咨询购买。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese