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Yixing City Jiangong Building and Installation Co., Ltd. v. Zhang Xin and Zhang Xueshan (Dispute over Liability for Damages Arising from Petition for Property Preservation during Ligation)
宜兴市建工建筑安装有限责任公司与张欣、张学山申请诉中财产保全损害赔偿责任纠纷案
【法宝引证码】

Yixing City Jiangong Building and Installation Co., Ltd. v. Zhang Xin and Zhang Xueshan (Dispute over Liability for Damages Arising from Petition for Property Preservation during Ligation)
宜兴市建工建筑安装有限责任公司与张欣、张学山申请诉中财产保全损害赔偿责任纠纷案
Yixing City Jiangong Building and Installation Co., Ltd. v. Zhang Xin and Zhang Xueshan (Dispute over Liability for Damages Arising from Petition for Property Preservation during Ligation) 宜兴市建工建筑安装有限责任公司与张欣、张学山申请诉中财产保全损害赔偿责任纠纷案
[Summary] 【裁判摘要】
Because parties had different legal knowledge, capability to prove the facts of the case, and capability to analyze and judge legal relations, and generally they had no professional ability necessary for judicial adjudication, their judgment about the issue, rights and obligations might not be the same as the adjudicative results of the court. The requirement of due care that a party should exercise when petitioning for preservation should not be too harsh. If whether the claim of a petitioner for preservation was supported had been the only basis to decide whether the petition for preservation was erroneous, parties in good faith would inevitably be obstructed from defending their rights through the litigation preservation procedure according to the law, and the functions of the litigation preservation system would be affected. Articles 6 and 7 of the Tort Law of the People's Republic of China provides that torts were subject to the doctrine of fault liability and that no-fault liability must be subject to legal basis, and the no-fault liability as provided in the Tort Law of the People's Republic of China did not include liability for damages on account of petition for preservation. Therefore, an erroneous petition for preservation must meet the requirement that the petitioner was at subjective fault, instead of being only on sufficient condition that the petitioner's claim had not been supported. 由于当事人的法律知识、对案件事实的举证证明能力、对法律关系的分析判断能力各不相同,通常打不到司法裁判所要求的专业水平,因此当事人对诉争事实和权利义务的判断未必与人民法院的裁判结果一致。对当事人申请保全所应尽到的注意义务的要求不应过于苛责。如果仅以保全申请人的诉讼请求是否得到支持作为申请保全是否错误的依据,必然会对善意当事人依法通过诉讼保全程序维护自己权利造成妨碍,影响诉讼保全制度功能的发挥。而且,《中华人民共和国侵权责任法》第六条和第七条规定,侵权行为以过错责任为原则,无过错责任必须要有法律依据,但《中华人民共和国侵权责任法》所规定的无过错责任中并不包含申请保全错误损害赔偿责任。因此,申请保全错误,须以申请人主观存在过错为要件,不能仅以申请人的诉讼请求未得到支持为充分条件。
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. 2027 [2018], Petition, Civil Division, SPC (2018)最高法民申2027号
BASIC FACTS 
Retrial applicant (plaintiff in first instance trial and appellant in second instance trial): Yixing City Jiangong Building and Installation Co., Ltd., domiciled at 6 Chaquan Road, Yixing Huankeyuan, Yixing City, Jiangsu province. 再审申请人(一审原告、二审上诉人):宜兴市建工建筑安装有限责任公司。
Legal representative: Zhang Yayi, chairman of the said company. 法定代表人:张亚义,该公司董事长。
Attorney: Fei Jianxin, lawyer of Jiangsu Tongyun Law Firm. 委托诉讼代理人:费建新,江苏通运律师事务所律师。
Attorney: Zhu Qiang, lawyer of Jiangsu Tongyun Law Firm. 委托诉讼代理人:朱强,江苏通运律师事务所律师。
Respondent (defendant in first instance trial and appellee in second instance trial): Zhang Xin. 被申请人(一审被告、二审被上诉人):张欣。
Respondent (defendant in first instance trial and appellee in second instance trial): Zhang Xueshan. 被申请人(一审被告、二审被上诉人):张学山。
Retrial applicant Yixing City Jiangong Building and Installation Co., Ltd. (hereinafter referred to as the "Yixing Company") was dissatisfied with the Civil Judgment No. 1932 [2017], Final, Civil Division, Shandong (hereinafter referred to as the "second instance judgment"), of the Higher People's Court of Shandong province (hereinafter referred to as the "Shandong Higher Court") in the case concerning the dispute over liability for damages on account of petition for property preservation during ligation with respondents Zhang Xin and Zhang Xueshan and applied to this Court for retrial. The Court formed a collegial panel as legally required to review the case and has concluded the review. 再审申请人宜兴市建工建筑安装有限责任公司(以下简称宜兴建筑公司)因与被申请人张欣、张学山申请诉中财产保全损害责任纠纷一案,不服山东省高级人民法院(以下简称山东高院)(2017)鲁民终1932号民事判决(以下简称二审判决),向本院申请再审。本院依法组成合议庭进行了审查,现已审查终结。
Yixing Company applied for retrial, alleging that the essential facts found in the second instance judgment were not proved by evidence. (1) No judicial interpretation had ever defined the "erroneously" as mentioned in Article 105 of the Civil Procedure Law of the People's Republic of China, but Zhang Xin's error in the petition for property preservation could not only be presumed from the result of losing the case, but also confirmed in the lawsuit against Zhang Xin who falsifying facts. (2) In the second instance judgment, the finding that Zhang Xin did not petition for litigation preservation in bad faith was not proved by evidence. Yixing Company was not a party to the case-related Loan Contract and should not be a defendant. The testimony given by witness Zhang Xinyou during the trial was based on Zhang Xin's statement. The cash journal for the Qingzhou City Municipal Exhibition Hall Project submitted by Zhang Xin was false and was insufficient to prove the conduct of Yixing Company. Yixing Company had not issued a letter of authorization, and the letter of authorization submitted by Zhang Xin to the court was false and could not be a basis for determining that Yixing Company should assume the responsibility for repayment. In other cases involving private lending disputes, Zhang Xin elected only to sue Weng Xiaogang and to withdraw the lawsuit against Yixing Company, indicating that Zhang Xin knew the evidentiary materials were false. Because Zhang Xin falsified the books, provided false evidence, misappropriated the letter of authorization, and petitioned in the lawsuit for litigation preservation with knowledge of the error, Zhang Xin should be determined to have petitioned for litigation preservation in bad faith. (3) In the second instance judgment, the finding that Zhang Xin's petition for litigation preservation did not cause actual loss to Yixing Company was not proved by evidence. Zhang Xin petitioned for freezing the bank account of Yixing Company, rendering it unable to operate normally. It had to borrow from non-financial institutions and other entities and individuals at an interest rate several times higher than that on bank loans. When the account was restored, Yixing Company had paid interest up to CNY10.6989 million, and the loss should be borne by Zhang Xin and guarantor Zhang Xueshan. Therefore, the application for retrial was filed in accordance with the provisions of Article 200(2) of the Civil Procedure Law of the People's Republic of China.
......
 宜兴建筑公司申请再审称,二审判决认定的基本事实缺乏证据证明。1.对什么是《中华人民共和国民事诉讼法》第一百零五条规定的"错误"没有司法解释,但张欣申请财产保全错误不仅可以从败诉这一结果中推定,也可以从张欣伪造事实的诉讼中予以确认。2.二审判决认定张欣申请诉讼保全不存在恶意缺乏证据证明。宜兴建筑公司不是涉案《借款合同》的当事人,不应作为被告。证人张新友在庭审中所作的证人证言都以张欣的说法为准。张欣提交的青州市城市展览馆项目的现金日记账是虚假的,不足以证明宜兴建筑公司的行为。宜兴建筑公司并没有出具过授权委托书,张欣向法院提交的授权委托书是虚假的,不能作为认定宜兴建筑公司承担还款责任的依据。张欣在其他民间借贷纠纷案件中选择只起诉翁校刚、撤回对宜兴建筑公司的起诉,说明其知道证据材料是虚假的。由于张欣伪造账本、提供假证、盗用授权委托书以及在诉讼中明知错误仍申请诉讼保全,应认定其申请诉讼保全存在恶意。3.二审判决认定张欣申请诉讼保全的行为未对宜兴建筑公司造成实际损失缺乏证据证明。张欣申请冻结宜兴建筑公司银行账户,导致宜兴建筑公司不能正常运营,只能向非金融机构及其他单位和个人拆借,而拆借利率要比银行贷款利率高出好几倍。至账户被解封时,宜兴建筑公司已支付利息高达1069.89万元,该损失应由张欣和担保人张学山承担。故依照《中华人民共和国民事诉讼法》第二百条第二项规定申请再审。
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