What Is a Judgment Recovery Specialist?

From the "Xinhua Judgment" in Guizhou Liupanshuiyuan, published on June 18, 2012 by Wang Wenzhi and Xiao Bo, reporters of the Economic Reference News, headed by the Xinhua News Agency and the Economic Reference News Agency, the eight-year dispute over mining rights To outsiders in the "hidden" case, the law scholar Dou Ping called it "unheard of."

The best verdict

A civil lawsuit triggered by forging signatures to defraud equity interests in coal mines lasted eight years. In the first six years, the courts at the two levels made five judgments. Among them, the Liupanshui Intermediate People's Court of Guizhou Province had two final trials. However, after Liupanshui Intermediate People's Court initiated the second retrial procedure, the coal mine was sentenced to outsiders who had never appeared in this case.

Several well-known domestic legal experts believe that the second retrial procedure initiated by the Liupanshui Intermediate People's Court is illegal and the judgment result violates common sense in law; Jiang Ping, a tenured professor of China University of Political Science and Law, said it was "unheard of."

Forged signature inexplicably changed mine

Liupanshui City, Guizhou Province Xingxin Mining Co., Ltd. (hereinafter referred to as "Xingxin Mining") was established on April 14, 1996. On May 11, 1998, shareholders changed to Cen Xingwang, Zhang Hong, Li Zhenglun, Wang Shixiong, Tang Jia, Cen Xingwang holds 50% equity and is the legal representative of the company.

On July 11, 2000, Xingxin Mining obtained all the assets of the No. 6 Coal Mine in Zhongshan District, Liupanshui City (hereinafter referred to as "Zhongshan No. 6 Mine") and the operation right of coal mining according to law, and became the owner of Zhongshan No. 6 Mine. Since then, Xingxin Mining changed the legal representative of Zhongshan No. 6 Mine to Cen Jian, and issued a mining license on November 5, 2001 through the Guizhou Provincial Department of Land and Resources (valid from December 2001 to December 2004). And on April 15, 2002, the coal production license was approved by Guizhou Coal Industry Bureau. In both licenses, the mine manager is Cen Jian and the economic type is private. According to the reporter, Cen Jian is a staff member of Xingxin Mining and has relatives with Cen Xingwang.

On December 18, 2002, Zhongshan No. 6 Mine and its legal representative, Cen Jian, signed a "Partnership Agreement" with Zhang Chao and Huang Juhong, confirming that Zhang Chao and Huang Juhong enjoyed a 49% equity interest in Zhongshan No. 6 Mine. Xingxin Mining enjoys a 51% stake in Zhongshan No. 6 Mine and has agreed that Zhang Chao and Huang Juhong will be fully responsible for the operation and management of the mine.

On August 21, 2003, Zhang Chao and Huang Juhong took the mining license, coal production license, official seal and Cen Jian's private seal from Zhongshan No. 6 Mine for the convenience of management.

According to Cen Xingwang, the reporter of the Economic Reference Daily, without his and Cen Jian's knowledge, Zhang Chao and Huang Juhong privately produced a "Transfer Agreement", which reads: "Cen Xingwang voluntarily transferred all All the assets of Zhongshan No. 6 Mine, including operating rights, mining rights and equipment, were transferred to Cen Jian, and the two parties agreed to transfer the amount of RMB 800,000. "The signatures of Cen Xingwang and Cen Jian were forged in the signature column of the agreement. Through this forged "Transfer Agreement", Zhang Chao and Huang Juhong "legalized" the "Partnership Agreement" they signed with Cen Jian.

On September 30, 2005, the appraisal report of the Judicial Appraisal Center of Southwest University of Political Science and Law determined that the signatures of Cen Xingwang and Cen Jian in the "Transfer Agreement" were forged (the commissioned appraisal unit was the Guizhou Provincial Administration for Industry and Commerce).

According to the provisions of the Industrial and Commercial Registration Regulations, the name of an enterprise cannot be accompanied by a numerical number. The Guizhou Provincial Administration for Industry and Commerce requires Zhongshan No. 6 Mine to change its name. In November 2003, Zhang Chao and Huang Juhong forged the signatures of Cen Jian and Cen Xingwang (certified by the Judicial Appraisal Center of Southwest University of Political Science and Law), and forged the "Entrustment for Registration of Enterprises (Companies) Application", "All Partners and Apply for registration documents such as the "List of Partners Carrying Out Partnership Enterprise Affairs", "Power of Attorney", "Transfer Agreement", "Partnership Agreement of Weixin Coal Mine in Zhongshan District, Liupanshui City", and apply to the Guizhou Provincial Administration for Industry and Commerce to change the name of Zhongshan No.6 Coal Mine to Liupanshui Weixin Coal Mine in Zhongshan District. Among them, Article 8 of the "Partnership Agreement of Weixin Coal Mine in Zhongshan District, Liupanshui City" stipulates that the partners shall invest capital and amount of 42,500 for Cen Jian, 200,000 for Zhang, and 100,000 for Huang Juhong. Subsequently, Zhang Chao and Huang Juhong cancelled Cen Jian's capital contribution in the name of clearing capital. Weixin Coal Mine became an enterprise of Zhang Chao and Huang Juhong, which had nothing to do with Cen Jian, Xingxin Mining and Cen Xingwang. On November 25, 2003, the Guizhou Provincial Administration for Industry and Commerce issued the "Business License of Weixin Coal Mine Partnership in Zhongshan District, Liupanshui City" to Zhang Chao and Huang Juhong. Zhongshan No. 6 Mine was changed to Weixin Coal Mine.

Xingxin Mining wins two final trials

On December 29, 2003, after Xingxin Mining discovered that Zhang Chao and Huang Juhong had forged signatures and infringed their rights, they filed a civil lawsuit with the Zhongshan District Court in Liupanshui City, demanding the dissolution of Zhongshan No. 6 Mine and their legal representatives Cen Jian and Zhang Chao. According to the "Partnership Agreement" signed by Huang Juhong, Zhang Chao and Huang Juhong owned the shares of Xingxin Mining.

The first-instance judgment of the Zhongshan District Court supported Xingxin Mining's claim. The main decision was: Dissolution of the "Partnership Agreement" signed by Zhongshan No. 6 Mine, Zhang Chao, and Huang Juhong, which belonged to Xingxin Mining, on December 18, 2002. The property rights of Shanliu Mine belong to Xingxin Mining, and Zhang Chao and Huang Juhong also acted as falsified facts and forged signatures.

Subsequently, Zhang Chao and Huang Juhong filed an appeal. On August 9, 2004, the Intermediate Court of Liupanshui concluded the trial: the appeal was rejected and the original judgment of the first instance was upheld.

Soon after the final judgment, Zhang Chao and Huang Juhong applied for retrial. On January 26, 2005, the Intermediate Court of Liupanshui ordered a retrial and suspended the execution of the original judgment.

On April 20, 2005, the Liupanshui Intermediate People's Court made another ruling and returned the case to the Zhongshan District Court for retrial. On September 26 of the same year, the Zhongshan District Court issued a judgment basically the same as the first one. The main judgment was: Zhongshan No. 6 Mine, a subsidiary of Xingxin Mining, and Zhang Chao and Huang Juhong signed the "Partnership Shareholding" on December 18, 2002. The Contract is invalid, and the property right of the former Zhongshan No. 6 Mine belongs to Xingxin Mining.

Zhang Chao and Huang Juhong still refused to accept the verdict and appealed. The Liupanshui Intermediate Court tried the case and sent it back for retrial.

In the meantime, Xingxin Mining filed an administrative lawsuit and sued Guizhou Provincial Administration for Industry and Commerce to issue Zhang Chao and Huang Juhong with the Liupanshui Zhongxin District Weixin Coal Mine Partnership Business License. In July 2006, the court of Yunyan District of Guiyang issued a judgment deciding that Zhang Chao and Huang Juhong submitted false documents to defraud the registration and changed Zhongshan No. 6 Mine to Weixin Coal Mine, infringing on the legitimate rights and interests of stakeholders and revoking it. Business license issued by the Provincial Bureau of Industry and Commerce. In October of the same year, the second instance of Guiyang Intermediate People's Court upheld the original judgment.

As a result of Xingxin Mining's administrative lawsuit against the Guizhou Provincial Administration for Industry and Commerce, the civil lawsuit of Xingxin Mining was suspended. On November 22, 2007, the case resumed litigation.

On October 30, 2007, Weixin Coal Mine (formerly Zhongshan No. 6 Mine) was renamed Fuan Coal Mine.

On September 25, 2008, the Zhongshan District Court made its first judgment for the third time, and the main content of the judgment was the same as the previous two. Zhang Chao and Huang Juhong appealed again. On July 26, 2009, the Intermediate Court of Liupanshui City issued a judgment deciding that Zhang Chao and Huang Juhong returned the equity and ownership of Zhongshan No. 6 Mine (that is, Fuan Coal Mine) obtained in accordance with relevant contracts and agreements to Xingxin Mining. Xingxin Mining shall return the transfer fee of RMB 750,000 paid by Zhang Chao and Huang Juhong to obtain Zhongshan No. 6 Mine (that is, Fuan Coal Mine). "Economic Reference" reporter found that the main content of its judgment is still basically the same as the content of the first three trials.

In the lawsuits of the previous six years, the courts at both levels made a total of 10 judgments and rulings (excluding administrative lawsuits), of which five judgments (including two final judgments) judged Xingxin Mining to win, and all of them basically confirmed: Zhongshan, a subsidiary of Xingxin Mining The "Partnership Share Contract" signed by No. 6 Mining and Zhang Chao and Huang Juhong on December 18, 2002 is invalid, and the property right of Zhongshan No. 6 Mining belongs to Xingxin Mining.

The second retrial made "the best decision" according to the "leadership arrangements"

After initiating the second retrial procedure illegally, the Intermediate People's Court of Liupanshui City issued a retrial verdict called the "most ruling". Jiang Juping's legal experts questioned this, and even called the verdict "unheard of."

Xingxin Mining started to apply for execution after the final judgment of the first retrial. When entering the implementation stage, on March 2, 2010, the Intermediate People's Court of Liupanshui City made another (2010) Qianliu Zhongmin Zhongzai Zi No. 2 "Civil Ruling Book", which states that "the application for retrial of the Fu'an coal mine outside the case is in compliance with the law" "The prescribed conditions for retrial" were ruled, and a second retrial of the case was ruled, and the execution of the original final judgment of retrial was suspended. Since then, Liupanshui Intermediate People's Court started the retrial for the second time.

Cen Xingwang introduced to the reporter of the Economic Reference News that the Intermediate People's Court of Liupanshui first initiated a second retrial on the grounds of the application of an outsider. After finding that it did not meet the legal requirements, he made the (2010) Qianliu Zhongmin Second Re-final No. Civil Ruling No. 2-1. On September 6, 2010, Liupanshui Intermediate People's Court issued a supplementary ruling, stating that "the original ruling contained the following clerical errors": "The decision should be submitted to the trial committee for discussion and decision by the president of the court, and the decision on the case should be re-tried." The retrial application of Renfuan Coal Mine meets the retrial conditions prescribed by law ";" according to the provisions of Article 177 of the Civil Procedure Law "was miswritten as" according to the provisions of Article 179 of the Civil Procedure Law ". Liupanshui Intermediate People's Court initiated the second retrial on the basis of "writing errors" instead of "discovery by the president" procedure.

Under such circumstances, on July 29, 2011, the Intermediate People's Court of Liupanshui City issued a (2010) Qianliu Zhongmin Erzaizi No. 2 Judgment (hereinafter referred to as the "Second Retrial Judgment"), and the coal mine was sentenced to eight Outsiders who never appeared in the lawsuit in the year of 2015 were owned by the Sangcun Town Government of Shanting District, Zaozhuang City, Shandong Province.

According to the introduction of Xingxin Mining to the reporter of the Economic Reference Daily, the second retrial of Liupanshui Intermediate People's Court directly identified a large number of key facts and evidence without the parties' cross-examination without the cross-examination of the trial, and finally made the "second The "Retrial Judgment Letter" overturned all the previous verdicts. The coal mine was sentenced to the outsider's government in Sangcun Town, Shanting District, Zaozhuang City, Shandong Province. The Sangcun town government was not the party involved in the first, second and retrial of this case, nor did it make any claims in this case. The judgment ruled that the mineral rights were attributed to the Sangcun town government. It has never been presented in court, and there is no proof or evidence.

In response to this, jurists such as Master of Law, Jiang Ping, a tenured professor of China University of Political Science and Law, and Wang Jiafu, a member of the Chinese Academy of Social Sciences and director of the Academic Committee of the Chinese Law Society, believe that whether it is an "outside case application" or "dean discovery" process, Liupanshui City The initiation of the second retrial by the Intermediate Court is a serious procedural error; according to legal provisions and the judicial interpretation of the Supreme Law, this case should not be re-opened for retrial by the Liupanshui Intermediate Court. Jiang Ping believes that the retrial decision disputed the case for eight years of rights and interests, and "identified" it to a "hidden" party who was neither the legal party to the case nor any claims in the case, which was unheard of in judicial trial practice.

A person in charge of the Guizhou Lawyers Association, who asked not to be named, told reporters that the retrial decision issued by the Intermediate People's Court of Liupanshui City, in addition to errors in the physical issues, also had serious procedural violations. It was nicknamed "Guizhou Lawyer Circle" The best decision in history. "

Why is there an incredible "writing error" in the Civil Ruling? Why was the coal mine ultimately awarded to a "hidden" party? The reporter tried to find the statement through Tang Lin, then the president of the Intermediate People's Court of Liupanshui City, and the current vice president of the High Court of Guizhou Province. After dialing the phone of Tang Lin's office, the staff was informed that Tang Lin was not there. The reporter explained the intent of the interview and left contact information. The staff member said that he would tell Tang Lin. As of press time, the reporter received a response from Tang Lin saying that it is not convenient for interviews on business trips, and it is recommended that the reporter contact the current head of Liupanshuiyuan.

The reporter came to the Intermediate People's Court of Liupanshui City and contacted the trial judge An Mingjiang. An said that he could not be interviewed without permission and had to ask for leadership, but the leader was away on business and will not return in the near future.

A recording material obtained by the reporter showed that when the plaintiff questioned the outcome of the second retrial, An Mingjiang said: "We cannot rule the court, we must listen to the leadership of the court, and the court leadership will do what we do." We will judge as we decide. "

In another recording obtained by the reporter, Tang Lin, then the president of the Intermediate People's Court of Liupanshui City, said in response to the "illegal retrial" challenge raised by the plaintiff: "I also know that you will be dissatisfied and refuse to accept the verdict. I let it go, but I can't help it. "He also said that the three leaders in the city" have instructions, I can only do it. "

A person in charge of Sangcun Town Government, Shanting District, Zaozhuang City, Shandong Province, said in an interview with the reporter of the Economic Reference News that he had never heard of the town government investing in coal mines in Liupanshui. The town government did not have the financial resources. According to relevant regulations, the town The government is also unlikely to make such investments.

On July 29, 2011, in the case of equity dispute between Xingxin Mining v. Zhang Chao and Huang Juhong, the Intermediate People's Court of Liupanshui City issued the (2010) Qianliu Zhongmin Second Repeated Character No. 2 Decision (hereinafter referred to as the Second Retrial verdict"). The ruling completely overturned the previous five rulings that were re-tried, sent back for re-trial twice, and lasted eight years.

Master of Law, Jiang Ping, Lifelong Professor of China University of Political Science and Law, Wang Jiafu, Member of the Chinese Academy of Social Sciences, Director of the Academic Committee of the Chinese Law Society, Yang Lixin, Professor of Renmin University of China Law Professor Yao Hui, Professor of Renmin University of China Law Professor, Yongjun Li and other experts The case was analyzed from a legal perspective, and an "Expert Legal Opinion" was issued.

Second retrial is a serious procedural error

In response to the first retrial of the Civil Judgment issued by Liupanshui Intermediate People's Court on July 26, 2009, outsiders applied to the original trial court of Liupanshui Intermediate People's Court for retrial. The court's decision to file a retrial did not meet the legal and judicial interpretation requirements. Since then, the court has started a second retrial with the "principal discovery" procedure, but this procedure is also an illegal procedure. Therefore, this case should not be re-opened for retrial by Liupanshui Intermediate People's Court.

Initiated trial supervision procedures in accordance with Articles 177, 178, and 179 of the Civil Procedure Law of the People's Republic of China and the Interpretations of the Supreme People's Court on Several Issues concerning the Application of the Trial Supervision Procedures of the Civil Procedure Law of the People's Republic of China There are four ways: First, the president of the court submits it to the trial committee for discussion and decision to retry. The second is that the Supreme People's Court and the superior people's court submitted a trial or ordered a retrial. Third, the party or an outsider who complied with the provisions of laws and judicial interpretations applied for retrial. Fourth, the people's procuratorate filed a protest and retrial in accordance with the trial supervision procedures.

In light of this case, the second and fourth situations do not exist in this case. According to Article 7 of the "Several Opinions of the Supreme People's Court on Accepting the Review of Civil Application Retrial Cases", if the applicant for retrial insists on applying for retrial to the original trial court, the original court should inform that it can be filed with a higher court. The case was directly applied to the original trial court for retrial, so Liupanshui Intermediate People's Court should not accept it.

The Intermediate People's Court of Liupanshui City, on the grounds that "the retrial application for Fu'an Coal Mine in Zhongshan District, Liupanshui City, Guizhou Province, meets the conditions for retrial as prescribed by law", according to Article 179 and 185 of the Civil Procedure Law Article, Article 186, issued (2010) Qianliu Zhongmin Erzai Zizi No. 2 "Civil Ruling Book" and ruled (2009) Qianliu Zhongminji Erzi No. 2 The Civil Judgment No. 1 was filed for retrial. This is a serious program error.

After the party Xingxin Mining filed the written violations of Liupanshui Intermediate People's Court, Liupanshui Intermediate People's Court made a (2010) Qianliu Zhongmin Erzai Zizi No. 2-1 Civil Ruling, stating: "This court (2010 ) Qianliu Zhongmin Erzai Zizi No. 2 civil ruling has the following clerical errors: It should be 'After the president of the court submitted a decision to the trial committee to discuss the case and decide to rehear the case', it was mistakenly written as' After review, the applicant Liupanshui The application for retrial of Fu'an Coal Mine of Shenzhen City complies with the retrial conditions prescribed by law ';' Article 177 of the Civil Procedure Law of the People's Republic of China 'was miswritten as' Article 179 of the Civil Procedure Law of the People's Republic of China' '. "

The Intermediate People's Court of Liupanshui City started the second retrial with the "President Discovery" procedure, but this procedure is also an illegal procedure.

According to Article 4 of the Supreme People's Court on the proper application of the "Regulations on People's Courts Resending Retrial and Instruction Retrial of Civil Cases", the President of the Liupanshui Intermediate People's Court found that the court had a legal retrial judgment (2009) Qianliu If the Civil Judgment No. 1 of Zhongmin Erzhong Zi is wrong and must be changed according to law, a written opinion shall be submitted to the People's Court at the next higher level, namely the Higher People's Court of Guizhou Province, with all the case files attached. The Guizhou Provincial People's Court should generally raise the trial, and may also order another people's court at the same level as the Liupanshui Intermediate People's Court to retry.

Ruling "mistake" does not meet legal requirements

On September 6, 2010, Liupanshui Intermediate People's Court (2010) Qianliu Zhongmin Erzai Zi Zi No. 2-1 Civil Ruling, the so-called "writing error" statement did not meet legal requirements.

The Civil Ruling of Liupanshuiyuan (2010) Qianliu Zhongmin Erzaizi No. 2-1 states that the Court (2010) Qianliu Zhongmin Erzaizi No. 2 Civil Ruling Paper has the following clerical errors: should For the reason that the case was submitted to the trial committee for discussion and decision by the president of this court, and the case was decided for retrial, it was mistakenly written as after review, the applicant's Liupanshui Fuan Coal Mine's retrial application met the retrial conditions prescribed by law; Article 177 of the Procedural Law was' miswritten as' Article 179 of the Civil Procedure Law of the People's Republic of China '. "

According to Article 166 of the "Opinions of the Supreme People's Court on Several Issues concerning the Application of the Civil Procedure Law of the People's Republic of China": "Crosswords refer to the miswriting, miscalculation, omission of litigation costs, miscalculation and other clerical errors of legal documents . "The so-called" writing error "means that you made a typo because of negligence. In Liupanshui Intermediate People's Court (2010) Qianliu Zhongmin Erzai Zizi No. 2-1 Civil Ruling, the "clerical error" is a change to the original reasons for the decision to retrial the ruling and the substantive requirements of the applicable law. Does not fall into the category of clerical errors. Therefore, Liupanshui Intermediate People's Court (2010) Qianliu Zhongmin Erzai Zi Zi No. 2-1 Civil Ruling Book has no legal basis for the statement of "clerical errors".

"Second Retrial Judgment" is seriously illegal

The "Second Retrial Judgment" does not appear to have added new parties, but new parties have been added to the content of the trial, that is, to cover up the "illegal" substance in a "legal" form.

According to Article 41 of the Opinions of the Supreme People's Court on Several Issues concerning the Application of the Civil Procedure Law of the People's Republic of China, "the parties to a civil retrial case shall be the parties to the original trial case." However, "the second retrial decision" There is no doubt that a new party was added to the case, namely the Sangcun Town People's Government of Shanting District, Zaozhuang City, Shandong Province.

Article 183 of the Opinion of the Supreme People's Court on Several Issues concerning the Application of the Civil Procedure Law of the People's Republic of China stipulates that the parties who must participate in the lawsuit did not participate in the lawsuit in the first instance, and the people's court in the second instance may mediate on the basis of the parties' voluntary principle. If the mediation fails, the case will be returned for retrial. The ruling sent back for retrial does not list the parties that should be added. The "Second Retrial Decision" identified the outsider as the owner of the coal mine in Sangcun Town, Shanting District, Zaozhuang City, Shandong Province, and the Sangcun Town People's Government in Shanting District, Zaozhuang City, Shandong Province was a party that must participate in the lawsuit. The retrial (second trial) court did not conduct mediation and should return a retrial in accordance with the law, but the retrial (second trial) court made a verdict directly, which was a serious violation of law.

The "Second Retrial Decision" contested the case for eight years of rights and "identified" it to a "hidden" party who was neither the legal party to the case nor had any claims in the case.

According to Article 33 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of the Trial Supervision Procedures of the Civil Procedure Law of the People's Republic of China: "A party that exceeds the scope of the original trial and increases or changes the lawsuit request does not belong to the scope of retrial trial." After adding a new party to the "Second Retrial Judgment", the rights and interests in the case were finally awarded to the new party. The content of its trial was completely beyond the scope of the trial of the original trial of the case.

In this case, the plaintiff's lawsuit request was: the invalidation of the "Partnership Agreement", confirming that all the property rights of the former Zhongshan District No. 6 Coal Mine belonged to Xingxin Mining; they ordered Zhang Chao and Huang Juhong to replace all the former Zhongshan District No. 6 Coal Mine Property rights returned to Xingxin Mining.

However, the main text of the "Second Retrial Judgment" is: 1. Revocation of this court (2009) Qianliu Zhongmin Erzhongzi No. 1 Civil Judgment and Zhongshan District People's Court (2008) Qian Zhongmin Yichuzi No. 28 Judgment; 2. Zhang Chao and Huang Juhong will compensate Liupanshui Xingxin Mining Co., Ltd. for RMB 3.193 million within ten days after the effectiveness of this judgment; 3. Reject other claims of Liupanshui Xingxin Mining Co., Ltd. It can be seen that the "Second Retrial Judgment" is obviously beyond the scope of the plaintiff's request, which is another serious common sense error.