Answers to Some Questions about the Trial of Civil and Commercial Cases by Beijing Higher People's Court (3)

(Adopted at the third meeting of the Judicial Committee of Beijing Higher People's Court on March 4, 2002, and adopted at the third meeting of the Judicial Committee of Beijing Higher People's Court on March 4, 2002, which was issued as document 2002/2002. 65438+March 08, 2002)

Several problems of the subject of civil litigation

1. Is an enterprise group that has obtained the Enterprise Group Registration Certificate through industrial and commercial registration qualified as a litigation subject?

1The Interim Provisions on the Administration of Enterprise Group Registration promulgated by the State Administration for Industry and Commerce in April, 1998 stipulates: "An enterprise group shall be established after it is approved and registered by the registration authority and issued with an enterprise group registration certificate."

The enterprise group established in accordance with the above provisions is a consortium of enterprise legal persons and does not have the qualification of enterprise legal persons. Members of various organizations operate independently in their own names and bear civil liabilities independently. The members of an enterprise group include the parent company (the core enterprise of the group), subsidiaries, joint-stock companies and other member units, and the parent company can use the words "group" or "(group)" in the enterprise name; A subsidiary may be preceded by the enterprise group name or abbreviation; A joint-stock company may, with the consent of the enterprise group management organization, prefix its name with the enterprise group name or abbreviation. Group members may use the approved enterprise group name in publicity and advertising, but they may not conclude economic contracts or engage in business activities in the name of enterprise groups. To sum up, an enterprise group that has obtained the Enterprise Group Registration Certificate through industrial and commercial registration does not have the qualification of litigation subject. After a contract dispute occurs, the members of a specific group who signed the contract shall be the subject of litigation; If the specific group members who sign the contract cannot be determined, the parent company (the core enterprise of the group) should be the subject of litigation.

Second, does the commodity trading market have the qualification of litigation subject?

According to the Measures for the Administration of Commodity Exchange Market Registration issued by the State Administration for Industry and Commerce in July, 1996, the starting unit of commodity exchange market is the manager of commodity exchange market, who has obtained the market registration certificate issued by the administrative department for industry and commerce and obtained the starting license. The commodity trading market is the business place of the start-up unit and does not have the ability to bear civil liability independently. Contract disputes arising from the management behavior of commodity exchange market, whether or not the commodity exchange market has made a commitment to bear civil liability to the society in its own name, should be the object of litigation by the start-up unit of commodity exchange market.

3. After the dissolution of the organizing committee of related activities, who will be the subject of litigation? How to bear civil liability?

In order to organize a special event, before the dissolution of various organizing committees (hereinafter referred to as organizing committees) approved by relevant departments, the creditor's rights and debts during their existence shall be cleared, and the creditor's rights and debts shall be recovered and paid off. If the Organizing Committee announces the dissolution without cleaning up, creditors may sue some or all contractors. As the subject of litigation, the undertaker should first bear the responsibility of clearing the creditor's rights and debts during the existence of the organizing Committee and bear civil liability for the property cleared by the organizing Committee; If the cleared property is insufficient to pay off the debts, or if the Organizing Committee has no property, the organizer of the Organizing Committee shall bear the debts according to the agreement; if there is no agreement, the organizer of the Organizing Committee shall jointly bear the debts with the creditors.

4. Can the organization code certificate be used as the basis for determining the qualification of the litigation subject?

Organization code refers to the unique and unchangeable legal identification given to organs, enterprises, institutions, social organizations and other organizations nationwide according to the national coding rules. According to1July, 993, the code management measures for enterprises, institutions and social organizations, the purpose of establishing a unified code identification system for enterprises, institutions and social organizations is to establish a national code management database for enterprises, institutions and social organizations and strengthen the management of enterprises, institutions and social organizations. Enterprises, institutions and social organizations that should apply for code registration include: 1. Enterprises with legal personality; 2. Various business units with legal personality; 3. Social organizations with legal personality; 4 at or above the county level (including the county level) enterprise legal person registration authority. The establishment director will be an enterprise, institution or social organization that has been approved and registered or established by the organization registration authority and does not have legal person status. Enterprises, institutions and social organizations with legal personality, whose codes are legal person codes; If it is not qualified as a legal person, its code shall be the branch code of the legal person. Organization code includes: enterprise code certificate, enterprise code certificate, organization code certificate, organization code certificate, enterprise code certificate and social organization code certificate. To sum up, the organization code is the legal symbol of enterprises, institutions and social groups, and the organization code certificate cannot be used as the basis for determining the qualification of litigation subjects.

Problems in civil litigation

Five, in the same case, the prosecution of some defendants does not comply with the relevant provisions of the Civil Procedure Law of People's Republic of China (PRC), how to deal with it?

A civil ruling should be made first to dismiss the plaintiff's lawsuit against some defendants. If a party appeals against this ruling, it will not make a substantive judgment of the case for the time being, depending on the trial result of the second instance; If a party refuses to accept the ruling and appeals, the plaintiff shall try the lawsuit against other defendants according to law.

Six, the appellant submitted a written application for reduction, deferment and exemption of the appeal fee, how to deal with it?

After appealing, the appellant did not pay the appeal fee within the notice payment period, but submitted a written application for reducing, postponing and exempting the appeal fee. The court of first instance shall transfer all the files and the applications of the parties to the court of second instance. After the court of second instance examines the case, the collegial panel handling the case will comment on the written application submitted by the appellant. If the legal fees are reduced, postponed or exempted, it shall be reported to the hospital and the president for examination and approval, and the appellant shall be notified to pay the legal fees or reduce, postpone or exempt the legal fees within the prescribed time limit. If the appellant fails to pay the appeal fee within the prescribed time limit after receiving the notice of payment from the court of second instance, the court of second instance shall rule to automatically withdraw the appeal.

On the issue of guarantee responsibility

Seven, the guarantee period has passed, the guarantor signed the "loan collection notice", whether to undertake the guarantee responsibility?

The guarantee period is a predetermined period. According to the provisions of Article 26 of the Guarantee Law of People's Republic of China (PRC), if the creditor does not require the guarantor with joint liability to assume the guarantee responsibility within the guarantee period, the guarantor shall enjoy the right of exemption and defense. The Guarantor's signing of the Loan Collection Notice does not necessarily have the legal consequence of giving up the right of defense. In this case, if the creditor claims rights from the guarantor, it shall submit other evidence to prove it. However, the "reminder" clearly requires the guarantor to continue to bear the guarantee responsibility.

Eight, the guarantor in the proceedings did not put forward the exemption defense for the expiration of the warranty period, can the court take the initiative to exempt the guarantor from the warranty responsibility?

During the guarantee period, if the creditor fails to ask the guarantor with joint liability to undertake the guarantee liability, or if the creditor fails to file a lawsuit or apply for arbitration against the principal debtor of the general guarantee, the substantive rights and obligations between the guarantor and the principal creditor will be eliminated, and the guarantor will of course be exempted from liability. Regardless of whether the guarantor disputes this, the court should take the initiative to apply the relevant laws and regulations to exempt the guarantor from the guarantee responsibility.

9. During the limitation of action for joint and several liability guarantee debts, the court accepted the bankruptcy of shenqing's principal debtor, and the creditors declared their bankruptcy claims. At the end of the bankruptcy proceedings, they claimed their rights against the guarantor for the outstanding claims. Should the limitation of action for secured debts be determined according to Article 36 or Article 44 of the Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC)?

The provisions of Article 44 of the Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) shall apply. Paragraph 6 of Article 3 is sufficient as a general principle to guarantee the limitation period of debt litigation, and Article 44 is a special provision for the bankruptcy of the principal debtor during the guarantor's liability. This article not only avoids the possibility of creditor Double Indemnity, but also prevents creditors from losing their rights because of the long trial time of bankruptcy cases.

Issues related to bill dispute cases

10. Can the holder who obtained the bill in good faith claim the rights of the bill from the drawer after reporting the loss and stopping payment?

As a temporary measure after the loser loses the ticket, the suspension of payment only has the legal consequences of the payer's suspension of payment. If the loser fails to apply to the people's court for public notice or bring a lawsuit in accordance with Article 15 of the People's Republic of China (PRC) Negotiable Instruments Law, the legal effect of the instrument itself will not be affected. If the loser fails to make a public notice or bring a lawsuit, the holder may claim the rights of the bill from the drawer if he obtains the bill that has been reported for loss in good faith.

XI。 After the entrusted payee fills in "entrusted collection" in the endorsement column of the transfer cheque, can the bill be endorsed and transferred again?

Paragraph 1 of Article 35 of the People's Republic of China (PRC) Negotiable Instruments Law stipulates: "If the words' entrusted collection' are recorded in the endorsement, the endorsee has the right to exercise the right to entrust the bill on behalf of the endorser. However, the endorsee may not transfer the rights of the bill of exchange by endorsement. " The first paragraph of Article 94 of the People's Republic of China (PRC) Negotiable Instruments Law stipulates: "In addition to the provisions of this chapter, the endorsement, payment and recourse of checks shall be governed by the provisions of the draft in Chapter II of this Law." Accordingly, it is forbidden to endorse and transfer the transfer cheque after endorsement.

Twelve, according to the contractual relationship to obtain a registered cheque without endorsement, is it a legal holder?

The contents of the endorsement column and the endorsed column do not belong to the scope of authorization. The bearer of a registered cheque is neither the payee recorded on the bill, nor his name recorded in the endorsement column and the endorsed column of the bill, so he is not the proper bearer of the bill and does not enjoy the rights and obligations on the bill. The parties shall be informed to claim rights according to the basic contractual relationship.

Thirteen, how to understand the "payment of consideration" when the holder obtains the bill?

The "consideration" stipulated in the second paragraph of Article 10 of the People's Republic of China (PRC) Negotiable Instruments Law is "the corresponding consideration recognized by both parties", and the consideration that should not be paid must be equivalent to the amount recorded in the bill itself.

Fourteen, the cheque holder only claims part of the money recorded in the bill, how to deal with it?

The literal nature of the bill requires the debtor to pay according to the amount recorded on the bill, but it does not prohibit the holder from claiming the bill right only for part of the amount recorded on the bill. Therefore, when the legal holder of the bill only claims part of the money recorded in the bill, the court should support it.

15. Is the payment dispute between the drawer and the paying bank a bill dispute?

The payer of a check is the person concerned with the bill, not the party concerned with the legal relationship of the bill. According to Article 82 of People's Republic of China (PRC) Negotiable Instruments Law, the drawer of a cheque is the principal and the payment is the trustee. The dispute between the two parties is a consignment payment dispute, not a bill dispute.

Sixteen, entrusted payment dispute cases, as the basis for the transfer check is not stamped with the remittance seal of the receiving bank, should the bank responsible for the remittance of the bill participate in the lawsuit as * * * *?

The working relationship between the bank (exchange bank) in charge of bill exchange in the case of entrusted payment dispute and the receiving bank or the paying bank is within the banking system, and the exchange bank has no direct obligation to bear civil liability, so it should not participate in the litigation as the defendant in the case of entrusted payment dispute.

Several problems about deposit certificate dispute cases

17. The money recovered in criminal cases has been partially returned to the deposit unit, and the criminal judgment is "Continue to recover the money and return it to the deposit unit". How to deal with related civil cases?

When the illegal money recovered from criminal cases has been partially returned to the deposit unit, the situation of property return shall be ascertained during the trial, and it shall be handled in accordance with the spirit of the Notice on Economic Disputes Involving Xingyang Branch of Bank of China No.2001Feb 13 of the Supreme People's Court. That is, in civil cases that have not yet been concluded, the money refunded by the relevant departments should be deducted from the civil judgment; Civil cases that have been concluded shall be deducted in the execution procedure; If the creditor benefits more than the due amount, the people's court shall return the excess to the creditor through the implementation of circular procedures.

Serve people. All the above-mentioned situations shall be clearly stated in the "ascertained" and "judged" matters in the civil judgment.

18. The criminal suspect (investor) directly returns the money deposited by the public security organ in the financial institution as illicit money, and the investor claims the rights to the financial institution through civil litigation with the deposit certificate. How to deal with it?

The money that the criminal suspect directly returned to the investor and deposited in the financial institution by robbing Peter to pay Paul was collected by the public security organs as illicit money and should be recovered as a criminal case. If there is no evidence to prove that the investor has criminal intent, it will not affect the investor's claim to the financial institution through civil litigation with the certificate of deposit. On the basis of finding out the respective faults of investors and financial institutions, civil cases shall be handled in strict accordance with the Supreme People's Court's "Several Provisions on the Trial of Deposit Certificate Disputes".

Nineteen, after the public security organ withheld the high interest rate charged by the investor during the criminal investigation, did the withheld high interest rate offset the principal when the investor claimed the rights from the financial institution through civil litigation?

According to the second paragraph of Article 6 of Several Provisions of the Supreme People's Court on the Trial of Deposit Certificate Disputes, the high interest spread charged by investors shall offset the principal. The legal consequences of the public security organ detaining the high interest rate charged by the investor shall be borne by the investor, without affecting the civil judgment to offset the principal with high interest rate. Investors can apply to the public security organ for reimbursement of this high interest in accordance with relevant regulations.

Questions about bankruptcy cases

20. Should the late payment of state taxes be included in the second payment order as bankruptcy claims?

According to the Law of People's Republic of China (PRC) on the Administration of Tax Collection and related laws, the late payment fee due to overdue tax payment is a kind of punishment given by the state tax authorities to taxpayers for occupying state tax, and should not be regarded as the bankruptcy creditor's right with the second order of repayment, and the repayment order should be second to the general creditor's right.

Twenty-one, how to pay off the housing provident fund owed by bankrupt enterprises?

According to Article 3 of the Regulations on the Management of Housing Provident Fund, the housing provident fund paid by individual employees and the housing provident fund paid by the employee's unit for employees belong to individual employees. In bankruptcy cases, the employee housing provident fund shall be handled in the following ways:

1. The housing accumulation fund paid by individual employees, deposited by the unit for employees and stored in individual accounts of employees belongs to individual employees and should not be included in bankruptcy property;

2. The part of the housing accumulation fund that the unit should pay for the employees before bankruptcy can be included in the first liquidation order of bankruptcy property distribution according to the wages owed by the unit to the employees.

22. How to deal with the housing accumulation fund of bankrupt enterprises in bankruptcy cases?

Housing provident fund is a special fund for housing construction, maintenance and management and subsidizing employees to establish housing provident fund. It mainly comes from the depreciation expenses of fixed assets of self-managed public housing extracted by the unit, the major repair fund, the income from renting self-managed public housing, and the income from selling self-managed public housing. In bankruptcy cases, housing funds should be handled according to the following principles:

1. Except for * * * part of the facilities and equipment maintenance fund used by houses, the ownership of the remaining funds belongs to the enterprise and should be included in the bankruptcy property.

2. There is no maintenance fund for * * * facilities in residential areas, which is extracted to safeguard the interests of property owners and users after the sale of commercial housing and public housing. Once this part of the funds is withdrawn, it will be separated from the assets of the original property right unit and owned by the corresponding real estate owners' committee, which should be managed by the owners' committee or the relevant property management company entrusted by it for the maintenance of facilities and equipment in residential areas.

Because the owners' committee has not been generally established at present, some maintenance funds are still recorded in the name of the original property unit, but their essence is escrow. This part of the property should not be regarded as bankrupt property, and it should be based on non-operating assets (employee housing) and should also be handed over to the corresponding owners' committee or escrow unit.

3. When the enterprise goes bankrupt, the owners' committee (or other management organizations) has the right to take back the misappropriated maintenance fund or the unextracted maintenance fund first. If there is no corresponding management organization, the liquidation group shall give priority to paying off this part of the funds and hand them over to the relevant units together with non-operating assets.

However, in the normal operation of the enterprise, if the maintenance fund is used for the maintenance of facilities and equipment in the * * * part of the employee's residence, it should not be paid.

4. If the owners' committee has not been established at the end of enterprise bankruptcy, the court may designate relevant property management enterprises or other units to manage on their behalf (for example, the superior unit of the bankrupt enterprise may be designated for escrow). After the establishment of the owners' committee, the escrow unit will transfer the housing funds to the owners' committee or the property management enterprise entrusted by it.

On September 6, 2000, the Ministry of Finance proposed to cancel the management system of enterprise housing provident fund with the Notice on Financial Treatment in the Reform of Enterprise Housing System. The income from the sale of houses by enterprises (excluding the maintenance fund of some residential facilities and equipment * * * extracted according to regulations, etc.). ) included in non-operating income. Its handling principle is consistent with the housing provident fund.

23. How to confirm the property ownership of bankrupt enterprises?

In principle, the confirmation of housing property rights of bankrupt enterprises should be based on the property rights registration of the housing ownership management department. However, if the ownership of housing property rights is unclear, it shall be determined in accordance with the following principles according to the historical situation and the ascertained facts:

1. Historically, the real estate allocated by the state or allocated for the purchase and construction of bankrupt enterprises, which is managed, occupied and used by enterprises for a long time, is regarded as enterprise property and should be included in the liquidation and distribution of bankrupt property;

2. Although the property belongs to the superior unit, but the superior unit has invested the property as part of the investment in the bankrupt enterprise, the property shall be included in the liquidation and distribution of the bankrupt property;

3. The real estate purchased and built by the bankrupt enterprise with its own funds is a part of the enterprise property. Although registered in the name of its superior unit in history, it should still be included in the bankruptcy property;

4. Although the real estate has been occupied and used by enterprises for a long time, it belongs to the higher-level unit and should not be included in the bankruptcy property.

Twenty-four, the bankrupt enterprise is in the lease period, how to deal with it?

If the enterprise applying for bankruptcy is in the period of contracted operation or lease operation, the enterprise shall first terminate the relevant contract and then apply for bankruptcy. An application for bankruptcy before the termination of the contract shall not be accepted; If bankruptcy has been accepted but not declared, the bankruptcy application shall be rejected.

Cases in which an enterprise is declared bankrupt shall be handled in accordance with the following principles:

1_ Creditor's rights and debts arising in the process of enterprise contracting and leasing, regardless of whether the enterprise contracting and leasing contract is valid or not, are all creditor's rights and debts of the enterprise and belong to the scope of bankruptcy liquidation. The court shall notify the corresponding creditors to declare their claims, and notify the debtor to pay off the debts or deliver the property.

2. The effectiveness and responsibility of enterprise contracting and leasing contracts shall be handled in accordance with the General Principles of Civil Law of People's Republic of China (PRC) and Contract Law of People's Republic of China (PRC).

Other issues.

Twenty-five, how to identify the internal contract?

The internal contract of an enterprise refers to the agreement reached between the enterprise and the employees on the target of the enterprise contract management responsibility system, which clearly stipulates the relationship between the responsibilities, rights and interests of both parties. This kind of contract is based on the labor (personnel) relationship between enterprises and employees, and some contracts also contain rights and obligations related to labor relations such as wages and benefits. Although it has some attributes of a labor contract, its essence is an enterprise internal management contract. When determining the internal contract of an enterprise, it is necessary to examine whether there is a labor (personnel) relationship between the two parties to the contract, and whether the contract includes labor remuneration, social insurance, welfare, vocational training, etc. If it is confirmed that there is a labor (personnel) relationship between the two parties, the nature of the contract can be determined as an internal enterprise contract.

26. Is it a contractual obligation for the seller to pay the buyer's VAT invoice?

Article 2 of the Provisions on the Use of Special Invoices for Value-added Tax in State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) (for Trial Implementation) stipulates: "Except in the circumstances listed in Article 4 of these Provisions, general taxpayers selling goods (including goods deemed to be sold) and taxable services subject to value-added tax in accordance with the detailed rules for the implementation of the Provisional Regulations on Value-added Tax (hereinafter referred to as sales taxable items) must issue special invoices to the buyers." Therefore, it is a legal obligation for the seller to pay the buyer's VAT invoice. According to the principle of good faith, legal obligations should be performed by the seller as collateral obligations of the contract.

Twenty-seven, because the seller failed to pay the VAT invoice, the buyer could not deduct the input tax, or the VAT invoice paid by the seller was invalid, resulting in the buyer being recovered by the tax authorities according to law. Can the buyer claim compensation from the seller?

If the seller fails to pay the VAT invoice or the paid VAT invoice is invalid, it means that the seller has not fully fulfilled the contractual obligations, and the buyer has the right to ask the seller to pay a valid VAT invoice. If the buyer cannot deduct the input tax due to the seller's failure to pay the VAT invoice, or the tax authorities recover the deducted input tax according to law, the buyer may claim compensation from the seller as a loss.

According to the Notice of State Taxation Administration of The People's Republic of China City, People's Republic of China (PRC) on Handling Problems of Taxpayers Obtaining False Special VAT Invoices (Guo Shui Fa [1997] 134), Supplementary Notice on Handling Problems of Taxpayers Obtaining False Special VAT Invoices (Guo Shui Fa [2000] 182) and Peace Treaty1. If the buyer is at fault in obtaining the invalid VAT invoice paid by the seller, the buyer and the seller shall bear corresponding civil liabilities.

Twenty-eight, the parties agreed in the contract that the breaching party should pay the liquidated damages, but did not agree on the calculation standard of liquidated damages. How to deal with it?

If there is no agreed standard for calculating the liquidated damages, the liquidated damages can be calculated according to the standard for calculating the interest of overdue loans of financial institutions stipulated by the People's Bank of China, and the specific expression can be "calculated according to the interest rate of overdue loans in the same period stipulated by the People's Bank of China".

29. The liquidated damages claimed by the parties are based on the Measures for the Administration of Urban Gas issued by the Ministry of Construction 1997 No.65438+February 24th and the Measures for the Administration of Urban Gas issued by the Beijing Municipal People's Government 101July 8th, 1998. How to deal with it?

The Measures for the Administration of Urban Gas issued by the Ministry of Construction [65438+February 24, 1997] and the Measures for the Administration of Urban Gas issued by the Beijing Municipal People's Government [1July 8, 1998] are both departmental and local regulations. If the parties to the contract have not agreed on the liquidated damages in the contract, and only claim the liquidated damages according to the standards for collecting late fees in the above two documents, the court will not support it. However, if there is evidence that one party's breach of contract has caused losses to the other party, the breaching party shall bear the corresponding liability for compensation.

If both parties to the contract stipulate the standard of liquidated damages in the contract based on the standard of overdue payment in the above two documents, it can be regarded as that both parties have clearly agreed on the standard of liquidated damages in the contract. If the parties have any objection to the agreed amount of liquidated damages, it shall be handled in accordance with the following principles:

1. The Economic Contract Law of the People's Republic of China and relevant judicial interpretations shall apply to the contracts signed by the parties before the implementation of the People's Republic of China (PRC) Contract Law. According to Article 9 of the Supreme People's Court's Answers on Several Issues Concerning the Application of Economic Contract Law in the Trial of Economic Contract Disputes (Fa [Jing] Fa [1987] No.20), the standard for determining liquidated damages is that "the amount of liquidated damages is generally limited to the total price of the unfulfilled part of the contract, and the excess part may not be protected."

2. After the implementation of People's Republic of China (PRC) Contract Law, the contract signed by the parties shall be governed by People's Republic of China (PRC) Contract Law. It shall be handled in accordance with the provisions of Articles 114th, 182nd and 184th of People's Republic of China (PRC) Contract Law.