Selected Q&A (Fourth Batch)
Source: People's Court Daily
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The legal answering network is an information-sharing platform for the Supreme People's Court to provide legal and policy application, trial business consultation and Q&A, and learning and exchange services for the cadres and police of the four levels of courts across the country. Through the legal answer network, court officers and police officers can consult online on issues such as the application of law, case-handling procedures, and judicial policies involved in trial work, study, and research. Q&A experts must submit Q&A opinions within the specified time limit in strict accordance with laws, judicial interpretations, etc., and be reviewed and approved by the person in charge of the relevant business department, so as to ensure the accuracy and authority of Q&A opinions to the greatest extent. The consultation is only aimed at the application of law, and must not involve specific cases, and the Q&A opinions are only for study, research and reference.
Since the launch of the legal answering network, the quality of consultation and Q&A and the functions of the platform have been further optimized, the business exchanges between the upper and lower courts have been smooth and efficient, and the pain points and difficult problems that plague the front line of the trial have been solved in a timely manner. In order to further meet the people's diverse judicial needs and grasp "fairness and efficiency", the Supreme People's Court has fully tapped the "rich mine" of legal answering network resources, actively carried out the selection of outstanding consultation and Q&A, and successively released typical, cutting-edge, or difficult and complex consultation and Q&A on the application of law through media platforms such as the People's Court Daily, giving play to the function and effectiveness of the legal answering network in clarifying doubts and resolving doubts and promoting the uniform application of law in a wider range and at a deeper level, conveying the trend of respecting the law to the society and promoting the positive energy of the rule of law. To this end, the People's Court Daily has set up a special column of "Selected Questions and Answers on the Legal Answering Network" to publish selected consultation and Q&A on the Legal Answering Network. Stay tuned.
Question 1: How to determine the number of times of covering up or concealing criminal proceeds and the proceeds of criminal proceeds?
Q&A opinion: According to the provisions of Article 3, Paragraph 1, Item 2 of the "Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering Up or Concealing Criminal Proceeds or the Proceeds of Criminal Proceeds", "covering up or concealing criminal proceeds and the proceeds thereof more than 10 times, or more than three times and the total value reaches 50,000 yuan or more", shall be found to be "serious circumstances" as provided for in the first paragraph of Criminal Law article 312, and the sentence shall be upgraded within the range of between three and seven years imprisonment. For the above-mentioned provisions of "more than 10 times" and "more than 3 times", it is not appropriate to simply use the number of transfers as the standard in the grasp of individual cases, otherwise it is easy to cause the problem of too large a target and too severe punishment.
The number of cover-ups or concealments should be determined in light of the specific circumstances of the case. Generally speaking, to be found to be a cover-up or concealment, it must be an independent act, including independent subjective intent, independent cover-up and concealment, and independent results of the act. If, based on the same intent, at the same time and in the same place, at the same time, or consecutively, the criminal proceeds and their proceeds are covered up or concealed, it should generally be found to be an act of covering up or concealing at one time. For example, where the perpetrator clearly knows that multiple sums of money received in a bank card are the proceeds of fraud by others, and continuously transfers or diverts the funds in the card in the same place in order to evade investigation, it shall be found to be an act of covering up or concealing criminal proceeds.
Where criminal proceeds and proceeds and their proceeds are concealed, transferred, acquired, sold on behalf of others, or otherwise concealed or concealed for the same predicate criminal perpetrator of the same crime, it shall generally also be found to be a single act of covering up or concealing criminal proceeds and their proceeds based on the identity of the criminal target. For example, where the perpetrator clearly knows that a sum of funds received in a bank card is the criminal proceeds of an online casino, but still follows the instructions of the upstream actor who opened the casino to transfer the funds back and forth between multiple bank accounts and withdraw the funds, it shall generally also be found to be an act of covering up or concealing criminal proceeds. However, if the perpetrator clearly knows that there are stolen funds from the criminal proceeds of the fraud gang in the card, and transfers them, the number of times the criminal proceeds are covered up or concealed shall be calculated separately from the above-mentioned acts of transferring gambling funds.
Consultant: Han Jiling, Criminal Division 1, Jiangsu Provincial High People's Court
Q&A: Li Zhenhua, Criminal Division, Research Office of the Supreme People's Court
Question 2: Should the subrogated heir divide the estate equally if he has never fulfilled his maintenance obligations after reaching adulthood?
Q&A: Judging from the current legal provisions, legal succession is based on the principle of equal inheritance, and only stipulates that more than "may" be divided rather than "should" be given more support obligations. However, as far as subrogation is concerned, the subrogated heir only inherits the inheritance rights of his or her father or mother as the first heir in line to the decedent, and does not involve the issue of maintenance obligations. Such an institutional arrangement reflects a positive encouragement of maintenance, but still emphasizes the maintenance of the status-based relationship of inheritance rights and obligations. Therefore, for subrogated heirs, the fundamental factor that determines whether they can inherit equally lies in whether their status meets the constitutive requirements of subrogation. Of course, in such a case, if the other heirs have fulfilled more maintenance obligations, they should also let the heirs concerned share more, rather than let the subrogated heirs share less.
Consultant: Li Yan, Civil Trial Division, Shanghai Hongkou District People's Court
Q&A expert: Xiong Yan, Comprehensive Trial Court for Juvenile and Family Cases of Shanghai No. 2 Intermediate People's Court
Question 3: If the actual borrower is suspected of loan fraud, how to determine the validity of the loan contract signed between the nominal borrower and the lender, and how to bear the repayment liability?
Q&A: First, on the determination of the borrower. Where the actual borrower entrusts a nominal borrower to borrow money, it shall be in accordance with Article 925 of the Civil Code, Article 926:The provisions on indirect agency determine the parties to a loan contract, i.e., depending on whether the lender knew about it at the time of entering into the loan contract: if the lender knew or should have known about the agency relationship between the nominal borrower and the actual borrower at the time of signing the loan contract, the loan contract directly binds the actual borrower and the lender, and therefore the actual borrower shall be deemed to be a party to the loan contract, unless the lender has conclusive evidence to prove that the loan contract only binds the nominal borrower. If the lender is unaware of the agency relationship, it shall be deemed that the nominal borrower is the borrower;
The second is on the issue of the validity of the loan contract. The fact that the actual borrower is found guilty of loan fraud means that the criminal judgment has determined that the actual borrower is a party to the loan contract. According to the above rules, if the actual borrower is also determined to be a party to the loan contract in a civil lawsuit, it involves the issue of whether the crime of loan fraud will affect the validity of the contract. When determining the validity of a contract, it should be determined in accordance with the rules of the Civil Code on the validity of civil juristic acts, and it cannot simply be held that as long as a crime is constituted, the contract should be found invalid. In the case of loan fraud, the contract shall be deemed to be a voidable contract in accordance with the provisions of article 148 of the Civil Code on fraud. It should be noted that, in terms of the attribution of the validity of the contract (i.e., the determination of the parties), the criminal judgment that the actual borrower has committed the crime of loan fraud does not necessarily mean that the civil lawsuit must also determine that the loan contract occurred between the lender and the actual borrower. In other words, on the issue of attribution of the legal effect of the act, the parties to the loan contract should also be determined in accordance with the provisions of articles 925 and 926 of the Civil Code. If the civil judgment finds that the nominal borrower is a party to the loan contract, the fact that the actual borrower has committed the crime of loan fraud does not affect the validity of the loan contract.
The third is the liability of the nominal borrower and its coordination with criminal liability. If it is determined that the contractual relationship occurs between the actual borrower and the lender, the nominal borrower is not a party to the contract, and it is not liable under the loan contract. If the civil judgment finds that the contractual relationship occurs between the nominal borrower and the lender, the nominal borrower shall bear the liability for repayment of principal and interest under the loan contract according to the civil judgment, and the actual borrower shall bear the liability for the return of stolen goods and restitution according to the criminal judgment. At this time, the people's court should do a good job of coordination in the enforcement process to avoid repeated repayment by creditors.
Consultant: Xu Chu, Fifth Civil Trial Division of Zhejiang Provincial High People's Court
Q&A expert: Ma Jinliang, Second Civil Division of the Supreme People's Court
Question 4: Is the exercise of the creditor's right of subrogation restricted by the arbitration agreement?
Q&A: There are two ways to consider this.
1. If there is an arbitration agreement between the debtor and the counterparty, it does not affect the creditor to file a subrogation lawsuit against the counterparty.
First of all, this is determined by the institutional design of the Civil Code. According to the first paragraph of Article 535 of the Civil Code, the right of subrogation can only be exercised by filing a lawsuit with the people's court. If the subrogation lawsuit is bound by an arbitration agreement, the debtor may, in order to harm the interests of the creditor, maliciously adopt the method of entering into an arbitration agreement with the counterparty in advance to exclude the creditor from exercising the right of subrogation, resulting in the subrogation system being effectively emptied.
Secondly, it is also determined by the nature of the right of subrogation. The right of subrogation is derived from the direct provisions of the law and is a legal right, not a contractual right, and the exercise of this right cannot be excluded by agreement. The right of subrogation is neither a power of agency, nor is it different from the assignment of creditor's rights, and there is no legal basis for an arbitration agreement to be inherited by the creditor.
Thirdly, this is determined by the principle of autonomy of will. In a subrogation action, the creditor is not a party to the contract signed between the debtor and the counterparty, nor is it the assignee of the rights and obligations under the contract. Therefore, the arbitration clause agreed between the debtor and the counterparty is not binding on the creditor, and the arbitration agreement cannot oppose the statutory jurisdiction of the creditor's subrogation lawsuit, otherwise it is tantamount to forcing the creditor to accept the agreement that it has not concluded.
Subrogation litigation is not bound by the arbitration agreement between the debtor and the counterparty, which is the judicial position that the Supreme People's Court has always adhered to. According to Article 13 of the original Interpretation (I) of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China, the debtor's negligence in exercising its rights means that it does not claim its rights by way of litigation or arbitration, and it can be directly concluded that the exercise of subrogation is not bound by the arbitration agreement. Article 36 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Principles of Contracts in the Civil Code of the People's Republic of China (hereinafter referred to as the "Interpretation of the General Principles of Contracts") also reiterates this position, that is, after a creditor initiates a subrogation lawsuit, if the debtor or the counterparty raises an objection to the competent court on the ground that there is an arbitration agreement on the creditor's rights and debts between the parties, the people's court will not support it. It should be noted that Article 36 of the Interpretation of the General Principles of Contract also emphasizes the respect and maintenance of the arbitration agreement, that is, if the debtor or the counterparty applies for arbitration on the creditor's rights and debts relationship between the debtor and the counterparty before the first hearing, the people's court may suspend the subrogation litigation in accordance with the law.
In summary, if there is an arbitration agreement between the debtor and the counterparty, it does not affect the creditor from filing a subrogation lawsuit against the counterparty, but it may cause the litigation to be suspended.
2. If there is an arbitration agreement between the creditor and the debtor, it does not affect the creditor from filing a subrogation lawsuit.
This is because the arbitration agreement is only meaningful if the parties dispute whether the creditor has a claim and the size of the amount. However, the existence of a claim is a substantive condition for the exercise of subrogation, not a procedural condition. Paragraph 2 of Article 40 of the Interpretation of the General Principles of Contract Codification stipulates that if the debtor's counterparty claims that the creditor's rights and debts relationship between the creditor and the debtor has not been confirmed by an effective legal document when the creditor initiates the subrogation lawsuit, the people's court shall not support the claim that the lawsuit initiated by the creditor does not meet the conditions for exercising the right of subrogation. The legal instruments in force here include, of course, arbitral awards. Accordingly, even if the creditor-debtor relationship between the creditor and the debtor is not arbitrated, it does not affect the people's court's substantive judgment on the subrogation lawsuit, and naturally cannot affect the people's court's exercise of jurisdiction over the corresponding dispute. According to the first paragraph of Article 37 of the Interpretation of the General Principles of Contracts, in a subrogation action, the debtor participates in the litigation as a third party. Therefore, if the debtor does not dispute the claim enjoyed by the creditor and the amount thereof, an arbitration agreement designed to resolve the dispute between the debtor and the creditor will not work. Of course, if the debtor has a dispute as to whether the creditor has a claim and the size of the amount, the dispute can only be resolved through arbitration proceedings. If the dispute directly affects the judgment of the people's court accepting the subrogation lawsuit on whether the subrogation right is established, it falls under the situation that "the case must be based on the trial result of another case, and the other case has not yet been concluded" as provided for in Article 153, Paragraph 1, Item 5 of the Civil Procedure Law, and the subrogation lawsuit shall be suspended in accordance with the law, pending the arbitration procedure to make a ruling on the creditor's rights and debts relationship between the creditor and the debtor. It can be seen that at this time, it only affects the conduct of the subrogation lawsuit, and still does not affect the creditor to file a subrogation lawsuit.
Considering the above two aspects, it is inclined to believe that the arbitration agreement between the creditor and the debtor and the debtor and the debtor and the counterparty does not affect the creditor's filing of a subrogation lawsuit. Typical Case 5, a dispute over the subrogation rights of creditors between a holding company and a profit company, issued together with the Interpretation of the General Principles of Contracts, is one such situation.
Consultant: Lu Shenshen, Research Office of Jiangsu Provincial High People's Court
Q&A expert: Jiang Jiadi, Civil Division, Research Office of the Supreme People's Court
Question 5: How to refer to Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts, which stipulates that "there is no other house in the name of the buyer for residence" in the case of enforcement objection?
Q&A: Article 29, Item 2 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts (hereinafter referred to as the "Provisions") stipulates that "there is no other house in the name of the buyer for residence" is formulated in order to standardize the handling of enforcement objections and reconsideration cases by the people's courts, and is formulated in light of the actual enforcement work of the people's courts. "There is no other house under the name for residence" is a typical formal judgment rule, and the substantive adjudication standard for enforcing an objection lawsuit should be whether it is used for the basic residential needs of the family. Article 125 of the Minutes of the National Conference on the Trial of Civil and Commercial Cases by Courts holds that: "Although a consumer of commercial housing already has a house in his name, the house he purchases still meets the basic residential needs in terms of area, which can be understood as complying with the spirit of the provisions." "For example, if the first house under the name of a commercial housing consumer is small, and the additional housing purchased is still within the scope of meeting the basic housing needs in combination with the family population and living conditions, it should be considered to be in line with the spirit of Article 29 of the Provisions. However, in principle, the purchase of investment or luxury houses, or the purchase of commercial houses such as shops, is not within the scope of protection of this article. Therefore, the number of housing units is not an absolute standard, and what needs to be grasped is that, on the one hand, it is necessary to protect the people's yearning for a better life, protect the rigidity and improve the housing demand, and on the other hand, it is necessary to punish the behavior of malicious evasion of enforcement in accordance with the law.
Consultant: Xia Weiwei, Railway Division, Hainan Provincial High People's Court
Q&A expert: Wan Ting, First Civil Division of the Supreme People's Court