How to recover the 3.8 million interest-free loan of former Chongqing reporter Ping Zeng?

How to recover the 3.8 million interest-free loan of former Chongqing reporter Ping Zeng?

Not long ago, an old friend of mine, Ping Zeng, a former reporter of Yongchuan Daily, told me that he borrowed 3.8 million yuan for a whole year 10, and has not recovered it yet. At present, he is in judicial confusion. I implore well-meaning legal experts, scholars, lawyers and news media to give relief.

This controversy is simple. 20 1 1 In July, Ping Zeng lent 3.8 million yuan to Sichuan Guangyuan Linsen Wood Industry Co., Ltd. (hereinafter referred to as Guangyuan Linsen Company, and the legal representative was Zhu Moumou), and transferred the money to Zhu Moumou's son's account twice through his personal account. Zhu Moumou issued IOUs twice, agreeing to take back Zhu Moumou's shares in a real estate project in Ping Zeng. The two sides signed a cooperation agreement, stipulating that Guangyuan Linsen Company will leave the land (regardless of cost), and Ping Zeng will be responsible for developing the real estate in advance and distributing 5 1% profits. Ping Zeng also generously undertook the fund of 200,000 yuan paid by Guangyuan Linsen Company to the original construction unit.

Special note: With regard to the loan of 3.8 million yuan, Ping Zeng signed a cooperation contract with Guangyuan Linsen Company to recover the profits distributed by Guangyuan Linsen Company in the real estate projects jointly operated by the two parties, and the IOU stated that it would be deducted from Zhu's shares in the cooperative projects. Although the expression is different, the meaning is the same: after the project is settled, Zeng Ping's loan of 3.8 million yuan will be repaid from the profit distributed by Zhu Moumou in the project.

At the beginning of the cooperation, Ping Zeng established Guangyuan Branch with Dazu Sendi Real Estate Co., Ltd. (hereinafter referred to as Dazu Sendi Company) as the legal representative to undertake the development of Yongjiang Royal Court. From June 20 1 1 year to February 201year, Dazu Sendi Company invested 4.2 million yuan to complete the development of Yongjiang Huang Ting Residential Area.

2065438+July 2007, Guangyuan Linsen Company sued the division of Yongjiang court property. In the trial of first instance, the civil judgment of Lizhou District Court (20 17) Chuan 0802 Chu Min 225 1 only found out the fact that Ping Zeng lent Guangyuan Linsen Company 3.8 million yuan, but it was not judged and disposed of in the judgment of first instance.

After the appeal, in the second trial, Dazu Sendi Company proposed to deduct 3.8 million yuan from Ping Zeng's loan to help Ping Zeng recover the loan. Guangyuan Intermediate People's Court took this as the focus of controversy in the trial transcript, but in

In the civil judgment of Guangyuan Intermediate People's Court (2020)No. Chuan 08 340, when expounding the appeal request and appeal reasons of Dazu Sendi Company, there was no mention of the deduction of 3.8 million yuan, and the text of the ruling did not deal with the question of whether to allow the deduction. Based on this, Ping Zeng believes that Guangyuan Intermediate People's Court did not include the loan in the scope of trial. Strangely, Guangyuan Intermediate People's Court made an unauthorized statement on the reasons considered by the court in the final judgment: "Dazu Sendi Company also has the obligation to clear the above-ground buildings before the cooperation of this project. In the absence of valid objective evidence at present, it is determined that the consideration of 3.8 million yuan paid by Dazu Sendi Company to Guangyuan Linsen Company is appropriate, and Guangyuan Linsen Company does not need to return it when finally distributing profits. " However, in the text of the judgment document, there is no explanation about the disposal of the 3.8 million yuan lent by Ping Zeng to the partner.

The civil judgment No.340 of Guangyuan Intermediate People's Court divided the real estate of Yongjiang Huang Ting, but the 3.8 million yuan lent by Ping Zeng to Guangyuan Linsen Company was not recovered, so he applied to the Sichuan Provincial High Court for retrial. As a result, (202 1) No.3112 retrial civil ruling made by the court holds that the 3.8 million yuan lent by Dazu Sendi Company (Ping Zeng) has been included in the 4.2 million yuan contributed by it and deducted from the project involved. As a matter of fact, the 3.8 million yuan lent to us by Ping Zeng has not been recovered.

At the same time, the judgment of the Sichuan Higher People's Court also stated that although the judgment document of Guangyuan Intermediate People's Court stated that it was appropriate to identify the 3.8 million yuan as the consideration paid by Dazu Sendi Property Company for the demolition of the above-ground buildings, this identification was inappropriate, but it did not conflict with the principle of "profit = total income-total expenditure" established in this case, and then it was distributed according to the proportion agreed by both parties. The document also stated that Dazu Sendi Property Company made a clear appeal for 3.8 million yuan in the second instance of this case. Although the court of second instance made corresponding explanations and responses in the judgment of second instance, it did not support the appeal of Dazu Sendi Property Company. However, in the text of the judgment, the court of second instance did not explicitly reject other appeal requests of Dazu Sendi Property Company, but the verdict of second instance was not obviously improper.

Ping Zeng thought that the previous judgment document did not support his claim for a loan of 3.8 million yuan, which made it impossible for him to recover the loan, so he filed a lawsuit for cancellation. However, the Sichuan Provincial High Court (202 1) ruled that it would not be accepted in the civil ruling of Chuanminxuan No.4.

Subsequently, Ping Zeng appealed to the the Supreme People's Court Fifth Circuit Court, which is still under trial. At the same time, Ping Zeng sued the Yongchuan District Court. He thinks the loan belongs to himself, and the money lent is in his personal account. On this basis, he claimed a debt of 3.8 million yuan in his own name. 12 On February 29th, the case was opened. At present, the case has not been closed.

The fact that Ping Zeng personally borrowed 3.8 million yuan from Guangyuan Linsen Company has been recognized by Zhu Moumou, so there is no doubt about the certainty of the creditor's right. However, there are disputes on the recovery procedure, mainly focusing on 1 and the 3.8 million yuan lent by Ping Zeng to Guangyuan Linsen Company. Is it his personal behavior or the behavior of Dazu Sendi Company? 2. Does the effective judgment of Guangyuan Intermediate People's Court punish the loan of 3.8 million yuan?

Ping Zeng believes that this 3.8 million yuan is his personal fund, which was transferred from his personal account to Zhu's son. At that time, Zhu was asked to settle the debt dispute with the original construction unit, so that he could leave the site so that Ping Zeng's company could enter the site for development. Moreover, the IOU issued by Zhu Moumou is also for Ping Zeng personally, with Ping Zeng's ID number on it. After Dazu Sendi Company entered the site, the advance payment (4.2 million yuan) was paid from the account of the company's branch, which was different from the personal loan before Ping Zeng. Therefore, lending Zhu 3.8 million yuan is Ping Zeng's personal behavior.

As for the second focus, Ping Zeng thinks that the effective judgment of Guangyuan Intermediate People's Court, although it expounds Zeng Ping's view of borrowing 3.8 million yuan in the reason part, is not involved in the text. According to several cases of the Supreme Court (judicial interpretation), the contents of the reasons for judgment are not binding and res judicata on other cases. Therefore, the judgment of Guangyuan Intermediate People's Court has no res judicata on the loan of 3.8 million yuan advocated by Ping Zeng in Yongchuan Court. Sichuan Higher People's Court (202 1) stated in the reasons part of the retrial civil ruling that 3 1 12 Ping Zeng borrowed 3.8 million yuan, which was not true. The court held that 3.8 million yuan had been deducted and asked the Sichuan Provincial High Court to issue evidence to prove it. Of course, this erroneous determination has no res judicata for the trial of Yongchuan Court.

At present, Ping Zeng has seized the property of Guangyuan Linsen Company, and later the financial institutions in Guangyuan have also seized it. If the lawsuit of Yongchuan Court is frustrated, it will be difficult for Ping Zeng to recover its claim of 3.8 million yuan.

For the focus of this case, I urge all experts, scholars, lawyers and judicial personnel to comment, and also invite the news media to report. Zeng Pingcheng thanked all the helpers!

Attachment 1 refers to the loan of RMB 3.8 million and transfer voucher, as well as RMB 200,000 paid by Zhu to the original contractor.

Attachment 2 Real Estate Cooperation Agreement signed by Ping Zeng and Guangyuan Linsen Wood Company

Attachment 3 Other evidence related to this project

Attachment 4 Civil Judgment of Guangyuan Intermediate People's Court (2020) Chuan 08 340

Attachment 5 Sichuan Provincial High Court (202 1) Sichuan Minshen No.3112 retrial civil ruling.

Attachment 6 Sichuan Provincial High Court (202 1) Sichuan Elected Civil Ruling No.4

Published in 2022-01-212:11.