This is a case of a dispute over the assignment of creditor's rights.
A company's claims were assigned to a boss, who took the notice of assignment and sent it directly to the debtor, and the debtor reconciled with him, but he did not repay the money. The court of first instance held that the assignee's procedure of notifying the debtor was unlawful, so the subject was unqualified and rejected the lawsuit.
The court of second instance held that the law does not stipulate which entity must be notified, and when determining the effectiveness of the notice of assignment of creditor's rights provided for in Paragraph 1 of Article 546 of the Civil Code of the People's Republic of China on the debtor, whether the debtor knows and whether the fact of the assignment of creditor's rights can be confirmed should be the key to determining the validity of the assignment of creditor's rights.
Only the factoring contract stipulates that if the factor notifies the person, the identity shall be identified.
Therefore, the court of second instance ruled to revoke the ruling of the first instance and order the court of first instance to hear the case, not a new trial, because it has not yet been heard!
Attached: Ji Fahong, Qinghai Tiandile Technology Co., Ltd. and other second-instance civil rulings on loan contract disputes
Intermediate People's Court of Xining City, Qinghai Province
Civil rulings
(2022) Qing 01 Min Zhong No. 1389
Appellant (plaintiff in the original trial): Ji Fahong, male, born on May 12, 1965, Han nationality, living in Chengxi District, Xining City, Qinghai Province.
Entrusted litigation agent: Wang Yaowen, lawyer of Qinghai Huiyuan Law Firm.
Appellee (defendant in the original trial): Qinghai Tiandile Technology Co., Ltd., domicile: Building 1 and Building 2, No. 4, Guangning Road, Chengzhong District, Xining City, Qinghai Province.
Legal representative: Zhou Hao, general manager of the company.
Appellee (defendant in the original trial): Xiang Yunnan, male, born on April 8, 1954, Han nationality, living in Chengzhong District, Xining City, Qinghai Province.
2. The appellee jointly appointed an agent ad litem: Zhang Haonan, lawyer of Beijing Dacheng (Xining) Law Firm.
2. The appellee jointly appointed an agent ad litem: Liu Jia, a lawyer at Beijing Dacheng (Xining) Law Firm.
In the case of a loan contract dispute between the appellant Ji Fahong and the appellees Qinghai Tiandile Technology Co., Ltd. (hereinafter referred to as "Tiandile Company") and Xiang Yunnan, he appealed to this court against the civil ruling of the Chengzhong District People's Court of Xining City, Qinghai Province (2021) Qing 0103 Min Chu No. 5741-2.
This court formed a collegial panel to hear the case in accordance with law.
Ji Fahong's appeal request:
revoke the first-instance ruling, and change the judgment in accordance with law to support all of the appellant's claims in the original trial;
The appellee shall bear the case acceptance fee for the second instance of this case.
In the second instance of this case, it was clear that the first claim was:
The first-instance ruling was revoked and the first-instance court was instructed to continue hearing the case.
Facts and Reasons:
The first-instance ruling erred in determining the facts and applied the law inaccurately.
In the legal relationship of assignment of creditor's rights, the debtor is not a party to the contractual relationship of assignment of creditor's rights, but because the object of payment for the debtor's performance of the debt will change due to the assignment of creditor's rights, it is necessary to notify the debtor in order to avoid losses due to the assignment of creditor's rights.
Therefore, the first paragraph of Article 546 of the Civil Code of the People's Republic of China does not make clear provisions on the subject of the notice, the form of the notice and the time of the notice, and according to the principle of "nothing prohibited by law can be done" in the Civil Law, the Supreme People's Court in the (2021) Zui Gao Fa Min Shen No. 1580 Civil Ruling is as follows:
If, after the assignee of the creditor's rights has received the creditor's rights, it notifies the debtor of the assignment of the creditor's rights by means of litigation, it is a valid notice.
It should be noted that with regard to the limitation of the subject of the notification of assignment of creditor's rights, according to Article 764 of the Civil Code of the People's Republic of China, "where the factor issues a notice of assignment of receivables to the debtor of accounts receivable", the normative position that the subject of the obligation to notify the assignment of creditor's rights can be performed by both the assignor and the assignee indicates that the subject of the obligation to notify the assignment of creditor's rights is not limited to the assignor of creditor's rights.
The appellant argued that:
- The Appellant had served the Notice of Assignment of Creditor's Rights to the Appellees Tiandile Company and Xiang Yunnan by mail, and there was a receipt voucher signed by Tiandile Company and Xiang Yunnan. Xiang Yunnan has fully known the facts related to the transfer of creditor's rights between the appellant and Gansu Classical Construction Group Co., Ltd. through the evidence and other materials submitted by the appellant and participated in the trial activities, and it should be determined that the Notice of Assignment of Creditor's Rights has legal effect on the appellees Tiandile Company and Xiang Yunnan.
- During the nearly six-month trial of the first instance, the court of first instance organized the reconciliation between the appellant and the appellee on December 7, 2021, and held a hearing on March 14, 2022, and the financial transactions between the two parties have been ascertained.
However, the court of first instance simply rejected the appellant's claim on the grounds that the subject was not qualified, which seriously harmed the appellant's legitimate rights and interests, and requested the court of second instance to revoke the first-instance ruling.
Tiandile Company and Xiang Yunnan argued,
The first-instance ruling found that the facts were clear and the law was correctly applied, and Ji Fahong's appeal assertion and factual grounds could not be sustained.
Although the law does not directly stipulate that the transferor shall be notified of the assignment of creditor's rights, in light of the objective facts of this case, the original creditor, Gansu Classical Construction Group Co., Ltd., should be notified to Tiandile Company and Xiang Yunnan of the assignment of creditor's rights.
There is no arrears between Tiandile Company, Xiang Yunnan and Gansu Classical Construction Group Co., Ltd., including loans, and Xiang Yunnan and Tiandile Company do not owe Ji Fahong any money, so Ji Fahong has no interest in Xiang Yunnan and Tiandile Company, and he is not qualified as the plaintiff.
Ji Fahong filed a lawsuit with the court of first instance, requesting:
ordered Tiandile Company and Xiang Yunnan to jointly repay the loan of 5.949 million yuan;
ordered Tiandile Company and Xiang Yunnan to jointly pay the interest calculated at an annual interest rate of 3.85% based on the principal of the loan of 5.949 million yuan from the date of the lawsuit, i.e., October 13, 2021, to the date of actual repayment;
The case acceptance fee and preservation fee in this case are jointly borne by Tiandile Company and Xiang Yunnan.
After examination, the court of first instance held that, in accordance with the first paragraph of Article 546 of the Civil Code of the People's Republic of China, "if a creditor transfers a creditor's right without notifying the debtor, the transfer shall not be effective against the debtor", if the creditor transfers the right, it shall notify the debtor.
In this case, Ji Fahong held the Notice of Assignment of Creditor's Rights issued by Gansu Classical Construction Group Co., Ltd. to claim rights against Xiang Yunnan and Tiandile Company, but Ji Fahong did not submit to the court of first instance the relevant evidence that Gansu Classical Construction Group Co., Ltd. notified Xiang Yunnan and Tiandile Company of the transfer of creditor's rights in accordance with the law. Tiandile Company also did not recognize that it had received the above-mentioned Notice of Assignment of Creditor's Rights, so the Notice of Assignment of Creditor's Rights was not effective against Xiang Yunnan and Tiandile Company.
To sum up, Ji Fahong, as the plaintiff in this case, is not qualified to claim creditor's rights against Xiang Yunnan and Tiandile Company.
In accordance with the Civil Procedure Law of the People's Republic of China
Article 122
Article 157 (1) (c)
Article 208, Paragraph 3 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China ruled that:
Ji Fahong's lawsuit was dismissed. The case acceptance fee of 53,443 yuan will be returned to Ji Fahong.
In the second instance of this case, Gansu Classical Construction Group Co., Ltd. mailed a copy of the Explanation of the Situation, two copies of the Notice of Transfer of Creditor's Rights and four transfer vouchers to our court, mainly explaining the process of transferring the creditor's rights involved in the case, and stating that the fact of the assignment of creditor's rights and the Notice of Assignment of Creditor's Rights were the true expression of the company's intentions.
In this regard, Ji Fahong cross-examined and believed that the facts described in the "Explanation of the Situation", the "Notice of Assignment of Creditor's Rights" and the transfer voucher were recognized.
Tiandile Company and Xiang Yunnan argued that they did not recognize the authenticity, legitimacy and relevance of the "Explanation of the Situation", the "Notice of Assignment of Creditor's Rights" and the transfer vouchers:
The "Statement of Facts" is actually witness testimony, which contradicts the objective facts of the case, and the outsider Gansu Classical Construction Group Co., Ltd. should appear in court for questioning;
The amounts and subjects specified in the two "Notice of Assignment of Creditor's Rights" are different, and Ji Fahong should not be combined to file a lawsuit;
If there is indeed a loan relationship in this case, why is there no credit certificate or remarks for such a huge amount.
In order to verify the above situation, this court asked the relevant staff of Gansu Classical Construction Group Co., Ltd. according to the contact information provided by Tiandile Company and Xiang Yunnan.
The staff member claimed that the "Explanation of the Situation", the "Notice of Assignment of Creditor's Rights" and the transfer voucher were mailed to the court, and the contents recorded in the "Explanation of the Situation" were the true expression of the company's intentions.
This court holds that when determining the validity of the notice of assignment of creditor's rights provided for in the first paragraph of Article 546 of the Civil Code of the People's Republic of China on the debtor, whether the debtor is aware of and whether the fact of the assignment of creditor's rights can be confirmed should be the key to determining the validity of the assignment of creditor's rights.
In this case, on the one hand, Ji Fahong, as the assignee of the creditor's rights, claimed rights against the debtors Tiandile Company and Xiang Yunnan by filing a lawsuit, and the two parties reconciled the accounts under the auspices of the court of first instance, and mailed the Notice of Assignment of Creditor's Rights to Tiandile Company and Xiang Yunnan before the trial of the first instance.
In fact, Tiandile Company and Xiang Yunnan also admitted in the second instance that they knew about the transfer of creditor's rights after receiving the complaint and other documents.
On the other hand, in the second-instance stage of this case, the Explanation of Facts mailed to this court by the assignor of creditor's rights, Gansu Classical Construction Group Co., Ltd., stated that the assignment of creditor's rights involved in the case and the Notice of Assignment of Creditor's Rights were the true expression of the company's intentions, that is, that the creditor's rights were transferred between Gansu Classical Construction Group Co., Ltd. and Ji Fahong, and Ji Fahong had the qualifications to file a lawsuit in this case.
In summary, the court of first instance ruled to dismiss the lawsuit on the grounds that Ji Fahong's litigation subject was not qualified, which was an improper application of law, and this court corrected it in accordance with law.
As to whether Ji Fahong's litigation claim can be established, a determination should be made after the substantive trial.
In accordance with article 178 of the "Civil Procedure Law of the People's Republic of China" and article 330 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China", it is ruled as follows:
revoke the civil ruling of the Chengzhong District People's Court of Xining City, Qinghai Province (2021) Qing 0103 Min Chu No. 5741-2;
The case was ordered to be heard by the Chengzhong District People's Court of Xining City, Qinghai Province.
This ruling is final.
Presiding Judge Huang Cunzhi
Adjudicator Xu Ting
Adjudicator: Ma Chunmei
July 14, 2022
Judge's Assistant: Liu Shuhu
Clerk: Ni Wenfen
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