At the end of September, Shaoxing, Zhejiang Province, faded the sultry and anxious summer days. It was a bit more comfortable and quiet in the early autumn. Walking on a street like a washed-out street, looking at the buildings on both sides of the wall, the mood seemed to be exceptionally beautiful.
But at the moment, Zhejiang businessman Lin Shengxian is full of clouds.
He has just experienced a bizarre experience. "I have been sentenced to 14.45 million yuan for debts that have ceased to exist." Lin Shengxian said that he was inexplicably burdened with huge debts. He said that as of the debt-debtor relationship that had been eliminated as early as May 2015, after a lapse of one and a half years, the other party actually transferred the creditor's rights to a third party to file a lawsuit and demanded that it return the loan.
"This is a complete scam. They first returned a copy of the high copy, and then deceived me to sign the cancellation of the equity transfer contract." Lin Shengxian said.
Lin Shengxian’s experience is quite typical in the field of private lending disputes. Lin Shengxian reported the case to the public security organ because he believed that the relevant act was suspected of a false lawsuit. However, the police made a decision not to file a case on the grounds of "no criminal facts". The dispute is still going on. How can we solve the problem with the real and the fake? The case may provide specimens for private lending.
a "cooperation"
Things have to start from the second half of 2013.
At that time, Lin Shengxian was engaged in the textile printing and dyeing industry in Shaoxing, Zhejiang Province. Although the scale was not large, it has been done smoothly. One day, Jin Xianqin, who has been doing business in Xinjiang for a long time, proposed to him that he would like to buy a printing and dyeing company in partnership with Hangzhou.
To this end, Lin Shengxian went around to find a suitable target company.
After many investigations, Lin Shengxian discovered that Shaoxing Haoyin Printing and Dyeing Co., Ltd. (hereinafter referred to as “Yu Companyâ€) was caught in a debt dilemma due to poor management and other reasons, and intends to transfer the equity. So he took the initiative to find the other party to negotiate the acquisition. In April 2014, Jin Xianqin, Lin Shengxian and the company reached a letter of intent for corporate acquisition.
According to Lin Shengxian, at the time, he and Jin Xianqin agreed orally that the pre-acquisition funds were paid by Jin Xianqin first, and the expenses for the purchase of production equipment and materials for construction, water and electricity, and wages for employees were borne by him. After the acquisition, the two parties each accounted for 50% of the shares.
On June 4, 2014, the transfer of Fang Linsheng and Jin Xianqin’s wife, Lin Xianqin, and the actual controllers of the company, Wei Guohua and Qian Lihong, signed the “Equity Transfer Agreementâ€, which stated that the transferor would voluntarily The 100% share of the printing company was transferred to the transferee, and the transfer price was 52.02 million yuan. If one party arbitrarily destroys the contract, it will pay a penalty of 10 million yuan to the observant party.
During this period, Lin Shengxian and Lin Xianqin have successively remitted a transfer of 31 million yuan to the bank account designated by the company, of which Lin Shengxian paid 1.05 million yuan and Lin Xianqin paid 29.95 million yuan.
“After taking over the company, Jin Xianqin and his wife appointed two cronies to be responsible for daily management, and I was responsible for production and management.†Lin Shengxian told reporters that what he did not expect was that when the company’s operations were on the right track, Jin Xianqin and his wife thought that There is a serious “moisture†in the company’s net assets, which requires the cancellation of the acquisition contract.
"But the transferor only agreed to refund 8 million yuan, and the balance of 23 million yuan will be used as compensation." Lin Shengxian said that he has invested a lot of manpower, material resources and financial resources. Once the contract is terminated, all "heart and soul" will be lost, so he raised objections. opinion.
In this regard, Jin Xianqin and his wife believed that Lin Shengxian and the transferor were “partnership frauds†and reported the case to the public security organs. After investigation by the public security organs, it was determined that the case was an investment dispute, there was no fraud fact, and no case was filed.
After the report failed, Jin Xianqin came to the classmates and fellow villagers to mediate. On September 20th, 2014, Lukang Tea Language in Hangzhou Building, Lin Shengxian and Jin Xianqin reached a consensus through negotiation. The main contents were as follows: First, Jin Xianqin and his wife withdrew from the transfer; Second, Lin Shengxian fulfilled the acquisition through leasing. The agreement is that the transfer amount previously paid is 31 million yuan, and the two sides bear half of each. Lin Shengxian should seek compensation from the Jin Xianqin couple for 14.45 million yuan and pay it in three years.
“At the time, Jin Xianqin felt that there was no reason to ask for it. I asked him to make a loan on the spot.†Lin Shengxian said that because he had not prepared in advance, he immediately picked up a order list with the words “Lugang Tea Language†and On the back, he wrote: "This time I borrowed RMB 14.45 million from Jin Xianqin for the acquisition of Shaoxing Haoyin Printing & Dyeing Co., Ltd. This Jinxianqin has entered the company. Lin Shengxian, 2014.9.20", and then handed this loan to the other party. Acceptance.
However, after a few days, the Jin Xianqin couple "tear the consensus" and disagreed with the "rental purchase" plan, requiring a one-time solution. In this regard, Lin Shengxian clearly put forward the opinion that “if the cancellation of the acquisition caused the loss of default, it has nothing to do with himâ€, but this did not prevent the Jin Xianqin couple’s determination to “send out in the middleâ€.
On September 27, 2014, the company was forced to stop working completely. On April 20, 2015, Lin Xianqin issued a “Power of Attorney†to the fellowship Huang Yushun to properly handle the matter after the company’s work stoppage.
Since then, Huang has initiated many consultations with Lin Shengxian and the transferee Wei Guohua. According to the reporter's understanding, the three parties finally reached the following conclusions: First, Wei Guohua agreed that the transferee only bears a loss of 23 million yuan, and refunds 2 million yuan in cash and 10 houses for a discount of 6 million yuan. Second, Jin Xianqin returns to Lin Shengxian 1445. For the 10,000 yuan loan, Lin Shengxian must agree to terminate the equity transfer, and promised to abandon his own investment of 1.05 million yuan and enjoy the rights of the transferor to repay half of the share; third, the partnership to operate the company's materials within three months, The loss of workers' wages and other losses are borne by Lin Shengxian himself.
On the evening of May 16, 2015, under the witness of Huang Yushun and Cai Chang as equivalent classmates, Lin Xianqin returned the “debit†to Lin Shengxian, and then Lin signed the agreement on the cancellation of the equity transfer. At this point, the twists and turns of the company's equity transfer ended in failure.
Sudden debt
But what was unexpected was that in October 2016, Lin Shengxian suddenly received a subpoena from the court – he and his wife Lu Xianhua were actually told by a 70-year-old man who had never met.
From the court's subpoena, Lin Shengxian learned that on July 18, 2016, Jin Xianqin and Hu Yaosong, who lives in Qingshanhu Street, Lin'an District, Hangzhou City, reached a “Debt Transfer Agreementâ€, which stated that Jin Xianqin volunteered to pay the debtor Lin Shengxian. The 14.45 million creditor's rights and corresponding rights were transferred to the other party. On October 18, Hu Yaosong filed a lawsuit against the court on the grounds that Lin and his wife immediately reimbursed the loan and interest.
In the face of the sudden lawsuit, Lin Shengxian was shocked: "This debt was settled as early as May 16, 2015. Why did the old thing come back after a year and a half? Is the loan that was recovered on that day fake?"
In order to understand the doubts in happiness, Lin Shengxian took the "debit" in his hand and found a senior documentary expert to identify it, but the result was to make it fall like an ice cave: this is a "Luckang Tea Language" The order list is a special type of “fake loan†with a high degree of simulation.
In the face of this high imitation "fake loan", Lin Shengxian realized that he had fallen into a carefully woven "scam."
Image source: Visual China
"At the time, Lin Xianqin first took out the 'debit' from the bag and handed it to Cai Changdang. Then Cai Changdan handed it to Huang Yushun and finally came to my hand." Lin Shengxian recalled that he had taken the "debit". Later, I wanted Lin Xianqin to sign it, but I didn't expect her to appear fainting many times on the spot. Later, she didn't have the heart to let her sign again.
In this regard, Lin Shengxian regretted it, but now it has nothing to do. On June 19, 2017, the court heard the case openly.
During the trial, the defendants Lin Shengxian and Lu Xianhua jointly pleaded that the nature of the borrowing involved in the case was not a loan, but that they were involved in the acquisition of the equity investment of the printing and dyeing company with Lin Xianqin, and that Jin Xianqin did not pay after the loan was issued. Excessive text, so the basic legal relationship is not private lending, but a partnership dispute. At the same time, before the signing of the agreement, Lin Xianqin returned the loan, and the credit and debt relationship between the two parties has been eliminated. Therefore, the relationship between Jin Xianqin and the plaintiff’s creditor’s rights is not established, and all the plaintiff’s claims should be dismissed according to law.
As the third person in the case, Jin Xianqin and his wife argued that the defendant Lin Shengxian was borrowed from him and the loan debt was not paid. Afterwards, Kim transferred the loan claim to the plaintiff, which was legal and valid. Therefore, the court required the court to support the plaintiff’s claim.
On September 15, 2017, the court made a civil judgment, and determined that the defendant Lin Shengxian and his wife had returned to Hu Yaosong’s loan and interest.
Behind the doubts
After the verdict was pronounced in the first instance, Lin Shengxian and his wife refused to accept the appeal and appealed to the higher court. The court has accepted the case.
Lin Shengxian’s second-instance agent and legal worker of Shaoxing’s Yuezhou Legal Service Office, Wei Liye, told reporters that when he checked the case file, he found that the original loan was from October 13, 2016 to the court of first instance. The appraisal agency Zhejiang Qianmai Judicial Appraisal Center was applied for removal by the plaintiff's agent Hu Yaosong on November 29, 2016. It was not submitted to the court of first instance as a final file until the court of June 19, 2017.
"From the time point of view, when the plaintiff Hu Yaosong filed a lawsuit in the court, he did not hold the original debit in his hand." Wei Liye said that according to the principle of "who advocates who gives evidence," the original article of borrowing is used as the evidence of the plaintiff’s claim for creditor’s rights. The plaintiff himself holds and does not belong to the court to apply for the scope of the transfer, but what is embarrassing is that the "key evidence" was handed over to the plaintiff's agent.
On December 15, 2017, the outsider Huang Yushun said that the plaintiff and the third party Jin Xianqin and Lin Xianqin had a malicious collusion against Lin Shengxian’s creditor’s rights, which damaged his legitimate rights and interests. An application was filed to require a third party to participate in the second instance litigation.
On May 3, 2018, the court suspended the lawsuit on the grounds that the investigation found that the case may be suspected of crime. The "Letter" issued by the court to the public security organ shows that in the case, the appellant Lin Shengxian submitted a 14.45 million yuan loan "high copy", the "high copy" and the original borrower are exactly the same in form, both of which contain On the back of the "Lugang Tea Language" order menu, the producer's intention is obviously to create a borrowed original to obtain improper benefits. "This court believes that this fact may be suspected of fraud or other criminal acts. Therefore, the relevant criminal suspects and materials will be transferred to your office, and you should be examined and handled according to law."
On July 18, the public security organ issued a notice of non-arrival to the court. The document stated that: According to the provisions of Article 110 of the Criminal Procedure Law of the People’s Republic of China, it was decided not to File the case.
On July 26, 2018, the court of second instance made a final judgment on the case, dismissed the appeal and upheld the judgment of the first instance.
"Because the case is complicated and involves the cross of civil punishment, the court of second instance made a judgment without a cross-examination." Wei Liye said that on March 20, 2018, the outsider Huang Yushun issued a copy of his previous statement. On the contrary, the "Case Description" stated that "the borrowings involved in this case actually happened, and the original borrowings involved in the case have been held and kept by the couples of Jin Xianqin and Lin Xianqin." This clearly violates the "prohibition of estoppel principle", but the court of second instance has accepted the letter.
In order to clarify the truth of the facts, on August 17, 2018, Lin Shengxian reported the case to the public security organ of the court of first instance on the grounds of "Hu Yaosong and others suspected of false lawsuits".
"Because the amount of suspected false lawsuits is extremely large, the police station attached great importance to it and immediately assigned three police officers to inquire about me and produced a detailed transcript." Lin Shengxian said that after a lapse of one month, the agency still made a The review concluded that there was no criminal fact and decided not to file a case.
In this regard, Lin Shengxian's second-instance agent Wei Liye believes that "true and false borrowings" appear in both civil litigation cases, the purpose of the counterfeiters is to obtain improper benefits, this behavior has constituted a criminal offence, "public security organs only need to check Ming 'who is a counterfeiter', then all the problems will be solved, but it is hard to understand that the police have made a decision not to file a case on the grounds of 'no criminal facts', causing the counterfeiters to remain at large."
"Who actually made a fake loan", this issue, which is closely related to his own interests, Lin Shengxian is caught in the dilemma of "seeking for solution." Before the deadline for publication, the public security organ at the local court of the first instance replied to the reporter, "We will review the case and will inform the parties of the result after the review."
At present, Lin Shengxian has submitted relevant appeal materials to the Zhejiang Higher People's Court and applied for retrial. The court has filed a review on September 29, 2018.
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