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Century Securities Co., Ltd. v. Tianjin Municipal Housing Accumulation Fund Management Center, Tianjin Century Avenue Business Department of Century Securities Co., Ltd., Tianjin Securities Trading Department of China Tourism International Trust & Inv (Dispute over Tort)
世纪证券有限责任公司与天津市住房公积金管理中心、世纪证券有限责任公司天津世纪大道营业部、中国旅游国际信托投资有限公司天津证券交易营业部、中国旅游国际信托投资有限公司侵权纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Property
  • Legal document: Ruling
  • Judgment date: 11-29-2005
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 5,2006

Century Securities Co., Ltd. v. Tianjin Municipal Housing Accumulation Fund Management Center, Tianjin Century Avenue Business Department of Century Securities Co., Ltd., Tianjin Securities Trading Department of China Tourism International Trust & Inv (Dispute over Tort)
(Dispute over Tort)
世纪证券有限责任公司与天津市住房公积金管理中心、世纪证券有限责任公司天津世纪大道营业部、中国旅游国际信托投资有限公司天津证券交易营业部、中国旅游国际信托投资有限公司侵权纠纷案

Century Securities Co., Ltd. v. Tianjin Municipal Housing Accumulation Fund Management Center, Tianjin Century Avenue Business Department of Century Securities Co., Ltd., Tianjin Securities Trading Department of China Tourism International Trust & Investment Co., Ltd., and China Tourism International Trust & Investment Co., Ltd.
(Dispute over Tort)

 

世纪证券有限责任公司与天津市住房公积金管理中心、世纪证券有限责任公司天津世纪大道营业部、中国旅游国际信托投资有限公司天津证券交易营业部、中国旅游国际信托投资有限公司侵权纠纷案

 【裁判摘要】
 客户在证券公司开户投资,证券公司及其营业部对客户账户内的资金和证券既负有合同约定的妥善保管义务,同时还负有法定的妥善保管义务。证券公司营业部挪用客户账户内资金或证券的,既构成违约,又构成侵权,客户有权选择要求证券营业部承担违约责任或者侵权责任。客户以侵权为由对证券营业部提起民事诉讼的,应按照民事诉讼法二十九条的规定,由侵权行为地或者被告住所地人民法院管辖。
Civil Ruling of the Supreme People's Court 中华人民共和国最高人民法院
 民事裁定书
No. 207 (2005) (2005)民二终字第207号
BASIC FACTS 
Appellant (Defendant in the first instance): Century Securities Co., Ltd., domiciled at 41/F, China Merchants Bank Tower, 7088 Shennan Boulevard, Shenzhen City, Guangdong Province. 上诉人(原审被告):世纪证券有限责任公司。住所地:广东省深圳市深南大道 7088号招商银行大厦第41层。
Legal Representative: Duan Qiang, board chairman of the Company. 法定代表人:段强,该公司董事长。
Appellee (Plaintiff in the first instance): Tianjin Municipal Housing Accumulation Fund Management Center, domiciled at No. 8, Lhasa Avenue, Heping District, Tianjin. 被上诉人(原审原告):天津市住房公积金管理中心。住所地:天津市和平区拉萨道8号。
Legal Representative: Li Yuhan, director general of the Center. 法定代表人:李裕汉,该中心主任。
Defendant in the first instance: Tianjin Century Avenue Business Department of Century Securities Co., Ltd., domiciled at 3/F, Agricultural Bank Building, No. 90, Century Avenue, Dagang District, Tianjin. 原审被告:世纪证券有限责任公司天津世纪大道营业部。住所地:天津市大港区世纪大道90号农业银行大厦三层。
Defendant in the first instance: Tianjin Securities Trading Department of China Tourism International Trust & Investment Co., Ltd., domiciled at 3/F, Agricultural Bank Building, No. 90, Century Avenue, Dagang District, Tianjin. 原审被告:中国旅游国际信托投资有限公司天津证券交易营业部。住所地:天津市大港区世纪大道90号农业银行大厦三层。
Person-in-charge: Xu Yingzi, director general of the Securities Trading Department. 负责人:徐英姿,该营业部主任。
Defendant in the first instance: China Tourism International Trust & Investment Co., Ltd., domiciled at No. 2, Xinzhong Street, Dongcheng District, Beijing. 原审被告:中国旅游国际信托投资有限公司。住所地:北京市东城区新中街2号。
Legal Representative: Feng Zongsu, board chairman of the Company. 法定代表人:冯宗苏,该公司董事长。
With regard to the case under the dispute over tort with Tianjin Municipal Housing Accumulation Fund Management Center (the appellee, hereinafter referred to as Housing Accumulation Fund), Tianjin Century Avenue Business Department of Century Securities Co., Ltd. (defendant in the first instance, hereinafter referred to as Century Business Department), Tianjin Securities Trading Department of China Tourism International Trust & Investment Co., Ltd. (defendant in the first instance, hereinafter referred to as Securities Trading Department of CTITIC), China Tourism International Trust & Investment Co., Ltd. (defendant in the first instance, hereinafter referred to as CTITIC), Century Securities Co., Ltd. (the appellant, hereinafter referred to as Century Securities) was dissatisfied with the No. 7-1 (2005) civil ruling of the Higher People's Court of Tianjin Municipality (hereinafter referred to as Tianjin Higher Court), and appealed to the present court. The present court formed a collegial panel according to law, composed of Wu Qingbao as presiding judge, Jia Wei and Sha Ling as acting judges, and then heard the present case. Yuan Hongxia was the court clerk to make records. The present case has now been finalized. 上诉人世纪证券有限责任公司(以下简称世纪证券)为与被上诉人天津市住房公积金管理中心(以下简称住房公积金)、原审被告世纪证券有限责任公司天津世纪大道营业部(以下简称世纪营业部)、中国旅游国际信托投资有限公司天津证券交易营业部(以下简称中旅营业部)、中国旅游国际信托投资有限公司(以下简称中旅信托)侵权纠纷一案,不服天津市高级人民法院(2005)津高民四初字第7-1号民事裁定,向本院提起上诉。本院依法组成由审判员吴庆宝担任审判长,代理审判员贾纬、沙玲参加的合议庭进行了审理,书记员袁红霞担任记录。本案现已审理终结。
PROCEDURAL POSTURE 
It is verified that: on July 2, 2004, Housing Accumulation Fund opened a fund account in Securities Trading Department of CTITIC, with the account number of 81000066. On July 8, Housing Accumulation Fund entrusted Securities Trading Department of CTITIC to spend CNY 74.2 million on purchasing treasury bonds coded 010405, with the par value at CNY 78,949,000. In July 2005, Housing Accumulation Fund was unable to enter into the fund account. After negotiation with Securities Trading Department of CTITIC, the checklist indicated that the above said treasury bonds purchased by Housing Accumulation Fund had been misappropriated. 查明:2004年7月2日,住房公积金在中旅营业部开立资金账户,账号为 81000066。当月8日,住房公积金委托中旅营业部以7420万元人民币购入代码为 010405,面值为78 949 000元的国债。 2005年7月,住房公积金无法进入资金账户,经与中旅营业部交涉,对账单显示住房公积金购买的上述国债已被挪用。
In early 2002, Century Securities began to purchase CTITIC's entire securities assets, and began to exercise the operation power and management power as of May 1. On September 29, 2003, CTITIC and Century Securities concluded an agreement, under which CTITIC should assign all its securities assets to Century Securities. On July 28, 2005, Securities Trading Department of CTITIC issued a statement to Housing Accumulation Fund, saying its former headquarters was CTITIC, and as of July 2002, the securities assets of 6 business departments of the former CTITIC were essentially taken over by Century Securities. Presently, Securities Trading Department of CTITIC has been subordinated to Century Securities. Century Securities publicized on its web pages that Century Business Department was formed on the basis of taking over Securities Trading Department of CTITIC by agreement. On August 9, 2005, Century Securities issued a statement to Housing Accumulation Fund, acknowledging that it owed CNY 74.2 million of funds of entrusted treasury bonds to Housing Accumulation Fund, and proposing to offset the debts with relevant house properties. Securities Trading Department of CTITIC had then been changed into Century Business Department. 2002年初,世纪证券开始整体收购中旅信托证券类资产,同年5月1日起世纪证券行使经营权和管理权。2003年9月29日,中旅信托与世纪证券签订协议,中旅信托所属的全部证券资产转让给世纪证券。 2005年7月28日,中旅营业部向住房公积金出具说明,其原总部为中旅信托,自 2002年7月原中旅信托的6家营业部的证券资产开始被世纪证券实质性的接管,现中旅营业部隶属于世纪证券。世纪证券在其宣传网页上宣传世纪营业部为协议受让中旅营业部的基础上成立。2005年8月 9日,世纪证券向住房公积金出具说明承认欠住房公积金委托国债资金7420万元,商议以相关房产抵偿债务。中旅营业部已变更为世纪营业部。
On July 28, 2005, Housing Accumulation Fund brought a lawsuit with Tianjin Higher Court on the ground of a dispute over tort, and pleased with the court's ordering Century Business Department, Century Securities, Securities Trading Department of CTITIC and CTITIC to refund the 04 treasury bonds (5) coded 010405 and purchased by Housing Accumulation Fund, or to compensate the corresponding losses. During the period for defense in the first instance, Century Securities proposed its objection to the jurisdictional power. 2005年7月28日,住房公积金以侵权纠纷为由向原审法院提起诉讼,请求判令世纪营业部、世纪证券、中旅营业部、中旅信托返还住房公积金购买的代码为 010405的04国债(5)或赔偿相应的损失。一审答辩期间,世纪证券提出了管辖权异议。
Tianjin Higher Court held after the trial that: Housing Accumulation Fund brought a lawsuit on the ground of tort. In accordance with the relevant provisions in the “Civil Litigation Law of the People's Republic of China” (hereinafter referred to as the Civil Litigation Law), a lawsuit brought regarding a tortious act shall be under the jurisdiction of the court at the locality where the tortious act took place or the court at the locality where the defendant has its domicile. Tianjin was the locality where the tortious act took place, and the domicile of Century Business Department and that of Securities Trading Department of CTITIC were both in Tianjin, hence Tianjin Higher Court had the jurisdictional power over the present case. In accordance with Article 38 of the Civil Litigation Law

曾经瘦过你也是厉害

, Tianjin Higher Court ruled to reject Century Securities' objection to the jurisdictional power in the present case.
 天津市高级人民法院审查认为:住房公积金以侵权为由提起诉讼,根据《中华人民共和国民事诉讼法》(以下简称民事诉讼法)有关规定,因侵权纠纷提起的诉讼,由侵权行为地或被告住所地法院管辖。天津市为侵权行为地,本案被告世纪营业部及被告中旅营业部住所地均在天津市,因此其对本案享有管辖权。依照民事诉讼法三十八条之规定,该院裁定驳回了世纪证券对本案管辖权提出的异议。
Century Securities was dissatisfied with the No. 7-1 (2005) civil ruling of Tianjin Higher Court, and appealed to the present court by alleging: The present case was concerning a dispute arising out of authorized financial management, and there is no fact of tort with Century Securities, hence it was incorrect for Tianjin Higher Court to determine the court having the jurisdictional power by taking “the locality where the tortious act took place” as the standard. In accordance with the provisions of the Civil Litigation Law, the jurisdictional power for the present case could only be determined on the basis of “the locality where the contract is performed” or “the locality where the defendant has its domicile”, while in the present case, both “the locality where the defendant had its domicile” and “the locality where the contract was performed” were Shenzhen City, Guangdong Province, hence Tianjin Higher Court had no jurisdictional power over the present case, and the present case should be transferred to the Intermediate People's Court of Shenzhen Municipality (hereinafter referred to as Shenzhen Intermediate Court) to exercise its jurisdiction. 世纪证券不服天津市高级人民法院 (2005)津高民四初字第7-1号民事裁定,向本院提起上诉称:本案属于委托理财引起的纠纷,上诉人并不存在侵权的事实,一审法院以“侵权行为地”为标准来认定管辖法院不正确。根据民事诉讼法的规定本案只能依据“合同履行地”或“被告住所地”确定管辖,而“被告住所地”和“合同履行地”都为广东省深圳市,因此天津市高级人民法院对本案无管辖权,应当将本案移送深圳市中级人民法院管辖。
Housing Accumulation Fund argued: There was no contractual relationship between Housing Accumulation Fund and Century Securities, and the misappropriation by Century Securities and other defendants of Housing Accumulation Fund's treasury bonds was a tortious act. Since two of the four defendants in the present case were located in Tianjin, namely, Century Business Department and Securities Trading Department of CTITIC, and the tortious act of misappropriating the treasury bonds in the present case also took place in Tianjin, in accordance with the relevant legal provisions in the Civil Litigation Law, that is, “A lawsuit brought for a tortious act shall be under the jurisdiction of the people's court at the locality where the tortious act took place or at the locality where the defendant has its domicile” and “When two or more people's courts have jurisdiction over a lawsuit, the plaintiff may bring his lawsuit in one of these people's courts”, Housing Accumulation Fund should have right to choose to bring a lawsuit with Tianjin Higher Court. Even if the present case is concerning a contractual dispute as alleged by Century Securities, Tianjin Higher Court should also have the jurisdiction because Century Business Department and Securities Trading Department of CTITIC were located in Tianjin, and the locality where the contract was performed was also in Tianjin. Therefore, no matter whether it was a dispute over tort or a contractual dispute, Tianjin Higher Court should have jurisdiction over the present case. Housing Accumulation Fund pleaded with the present court to reject the appeal and to sustain the ruling of the first instance. 住房公积金答辩称:住房公积金与世纪证券不存在合同关系,世纪证券及其他被告挪用住房公积金的国债属于侵权行为。根据民事诉讼法关于“因侵权行为提起的诉讼,由侵权行为地或者被告住所地人民法院管辖”、“两个以上人民法院都有管辖权的诉讼,原告可以向其中一个人民法院起诉”的规定,本案有四个被告,其中两被告世纪营业部和中旅营业部在天津,挪用本案国债的侵权行为发生在天津,住房公积金有权选择向天津市高级人民法院提起诉讼。即便本案如上诉人所称是合同纠纷,因世纪营业部和中旅营业部在天津,合同履行地也在天津,天津市高级人民法院亦具有管辖权。因此,无论是侵权纠纷还是合同纠纷,天津市高级人民法院对本案都具有管辖权。请求二审法院驳回上诉,维持原审裁定。
JUDGMENT'S REASONING 
The present court holds: once a customer opens an account in the business department of a securities company and makes investments, the securities company and its business department shall bear not only contractual appropriate custody obligation but also statutory appropriate custody obligation for the funds and securities in the customer's fund account. When the securities or funds in a customer's account are misappropriated by a securities business department, in accordance with Article 122 of the “Contract Law of the People's Republic of China”, that is, “In case that the breach of contract by one party injures the other party's personal or property rights, the aggrieved party shall be entitled to choose to subject the breaching or injuring party to liabilities for breach of contract according to the present Law, or to subject the breaching or injuring party to liabilities for tort according to other laws”, the costumer shall have the right to bring a civil lawsuit on the ground of breach of contract or of tort. In the present case, Housing Accumulation Fund's treasury bonds in the fund account of Securities Trading Department of CTITIC were misappropriated, and then Housing Accumulation Fund brought a civil lawsuit against Securities Trading Department of CTITIC and other defendants to Tianjin Higher Court at the locality of Securities Trading Department of CTITIC on the ground of tort. In accordance with Article 29 of the Civil Litigation Law, “A lawsuit brought for a tortious act shall be under the jurisdiction of the people's court at the locality where the tortious act took place or at the locality where the defendant has its domicile”, Tianjin Higher Court shall have jurisdictional power over the present case. Century Securities alleged in the appeal that the present case was concerning a dispute arising out of authorized financial management, but failed to provide relevant evidence. Its appeal claim for transferring the present case to Shenzhen Intermediate Court for jurisdiction is not supported by the present court due to lack of factual or legal basis. The present court ruled in accordance with Article 29 and Article 154 of the Civil Litigation Law as follows: 本院认为:客户在证券公司营业部开户投资,证券公司及其营业部对客户资金账户内的资金和证券,不仅负有合同约定的妥善保管义务,而且负有法定妥善保管义务。当客户账户内证券或资金被证券营业部挪用后,根据《中华人民共和国合同法》第一百二十二条请你喝茶“因当事人一方的违约行为,侵害对方人身、财产权益的,受损害方有权选择依照本法要求其承担违约责任或者依照其他法律要求其承担侵权责任”的规定,客户有权选择违约或侵权诉由提起民事诉讼。本案住房公积金因在中旅营业部资金账户内的国债被挪用,以侵权为由对中旅营业部等相关被告向中旅营业部所在地的天津市高级人民法院提起民事诉讼,根据民事诉讼法二十九条“因侵权行为提起的诉讼,由侵权行为地或者被告住所地人民法院管辖”的规定,天津市高级人民法院对本案享有管辖权。世纪证券上诉称本案属于委托理财引起的纠纷,但未能提供相关证据证明,其关于将本案移送广东省深圳市中级人民法院管辖的上诉请求,因无事实和法律依据,本院不予支持。本院根据民事诉讼法二十九条、第一百五十四条之规定,裁定如下:
JUDGMENT 
The appeal shall be rejected, and the ruling of the first instance shall be sustained. 驳回上诉,维持原裁定。
The CNY 50 of case acceptance fee in the second instance shall be borne by Century Securities Co., Ltd. 二审案件受理费50元,由世纪证券有限责任公司承担。
The present ruling shall be final. 本裁定为终审裁定。
Presiding Judge Wu Qingbao 审 判 长 吴庆宝
Acting Judge Jia Wei 代理审判员 贾 纬
Acting Judge  Sha Ling 代理审判员 沙 玲
November 29, 2005 二00五年十一月二十九日
Court Clerk Yuan Hongxia

 书 记 员 袁红霞
 

     
     
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