SPC: When the court determines that the two defendants are jointly liable, does it need to determine the proportion of liability between the two defendants and whether there is a right of recourse? The Supreme Court's retrial held that: Mingcheng Investment Public

SPC: When the court determines that the two defendants are jointly liable, does it need to determine the proportion of liability between the two defendants and whether there is a right of recourse?

The Supreme Court's retrial held that:

Mingcheng Investment Company applied for a retrial, saying:

The first and second instance judgments of Mingcheng Investment Company and China Resources Guardian Company bear joint liability, and there is no factual or legal basis.

1. According to the judgment of the first instance, the "Sinoma Building Construction Project Cooperation and Development Agreement" (hereinafter referred to as the "Sinoma Building Cooperation Agreement") is the actual implementation agreement, but the "Opinion of this Court" part of the second instance made the opposite determination, that is, "in addition to signing the Sinoma Building Cooperation Agreement with China Resources Guardian, the Sinoma Xinjiang Corps signed the relevant approval documents with the co-rights holder of the Sinoma Building Project of China Resources Guardian Company."

The "Sinoma Building Cooperation Agreement" signed by Sinoma Xinjiang Corps and China Resources Guardian Company explains the background and purpose of the signing in part of the content, which is used for the recordal of the construction project of Sinoma Building.

The above facts are sufficient to show that Mingcheng Investment Company has been the counterpart of the "Xinjiang Non-metallic Mineral Materials Science and Technology R&D Base Project Contract development agreement" (hereinafter referred to as the "R&D Cooperation Agreement"), the "R&D Cooperation Agreement" has not been terminated or terminated, and has been in the process of performance, And Mingcheng Investment Company is the performer of the Sinoma Building Project. According to this determination, since the counterparty to the contract is Mingcheng Investment Company, it should bear the compensation and liquidated damages, and Mingcheng Investment Company at least has the right to recover from China Resources Guardian Company in accordance with the construction agreement, etc., and at the same time, after the contract is terminated, Mingcheng Investment Company also has the right to require Sinoma Xinjiang Corps to return the land co-ownership rights.

As a result of this judgment, it was impossible to determine the share of compensation and liquidated damages between Mingcheng Investment Company and China Resources Guardian Company, it was impossible to file a recovery lawsuit, and it was not known which party should receive the returned property.

At the same time, CR Guardian Company has assumed responsibilities that it should not have assumed and should be corrected.

2. The judgment does not specify the type of liability and violates the procedural regulations. The Civil Code of the People's Republic of China does not contain a provision for joint responsibility. The court should clarify what kind of liability Mingcheng Investment Company and China Resources Guardian Company bear, and if it is a proportion of liability, the fault between the two companies is divided at the time of judgment, and there is no question of future recovery.

If there is joint and several liability, it can be recovered in the future. The current division of responsibilities deprives Mingcheng Investment Company of its right of recourse and infringes upon the legitimate rights and interests of Mingcheng Investment Company, and should be corrected.

(3) Whether Mingcheng Investment Company and China Resources Guardian Company should jointly bear the liability for compensation

In the R&D Cooperation Agreement, the Supplementary Agreement on Sinoma Building Cooperation and the Letter of Commitment issued to Sinoma Xinjiang Headquarters, Mingcheng Investment Company and China Resources Guardian Company have always been the actual performers and co-responsible persons of the Sinoma Building Project.

Therefore, it was not improper for the courts of first and second instance to order Mingcheng Investment Company and China Resources Guardian to compensate Sinoma Xinjiang For losses and liquidated damages.

As for Mingcheng Investment Company and China Resources Guardian Company after assuming responsibility, their liability ratio and right of recourse belong to the internal relationship between the two companies and do not fall within the scope of this case.

Mingcheng Investment Company applied for a retrial, stating that the court of first and second instance did not award Mingcheng Investment Company's right of recourse to China Resources Guardian Company, which was an error in the application of law and the reasons were not established.

(2021) SPC Minshen No. 4918 · 2021-12-14

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