Civil and commercial perspective... deprive the parties of the right to debate, can the retrial procedure be initiated.
Published:
2024-01-22
If the parties are deprived of their right to debate, can they initiate retrial proceedings?
Brief of the case
Plaintiff A filed a lawsuit with the court: 1. Order Defendant B to pay Plaintiff A's creditor's rights transfer 1 million yuan and interest; Order Defendant B to bear the litigation costs of the case. Facts and Reasons: Plaintiff A transferred 1 million yuan to C on November 10, 2014. In December 2021, the plaintiff sued the court for C to repay 1 million yuan and interest. In the case of A v. C, the court found that the 1 million yuan was borrowed from plaintiff A by Company D, a third party. On April 21, 2016, A signed the "Creditor's Rights Transfer Agreement" with Company B and Company D of the third party. The plaintiff transferred its creditor's rights to Company D of the third party (1 million yuan and interest to B); The transfer price is 1 million yuan. The payment of the transfer price shall be agreed upon by A and B through negotiation. On September 4, 2022, A issued a Notice of Payment of the Transfer Price of Claims to B, informing it that it should pay the transfer price of claims of $1 million by September 7, 2022. But B has not yet paid. Claim: 1. Order Defendant B to pay Plaintiff A's creditor's rights transfer amount of 1 million yuan and interest (based on 1 million yuan, from September 8, 2022 to the date of repayment, based on four times the one-year loan market quotation interest rate of the National Interbank Funding Center);2. Order Defendant B to bear the litigation costs of the case.
Defendant B made no reply.
The third person, Company D, made no representations.
Defendant B and Company D, the third party, served the summons by notice of the court and did not appear in court without justifiable reasons.
The court found the facts: on April 21, 2016, the plaintiff as party a, the defendant as party B and the third party as party c signed a "creditor's rights transfer agreement", which reads: because party c borrowed money from party a, party a transferred and remitted 1 million yuan to the personal account (account number xxxxxxxxxxxxxxxxxxx) of yang mou (an enterprise employee of party c) designated by party c on November 11, 2014. after the two parties received the money, in the name of Yang Moumou to Party A issued a loan certificate, Party C for the 1 million yuan loan to provide joint and several guarantee liability, and seal confirmation. The above-mentioned loan principal has an agreed loan term of 2 years, and the agreed loan interest rate is calculated at annual/20%. Party C shall pay Party A (transfer) the loan interest of the current month on the 20th of each month, and the loan interest up to July 20, 2015. Both parties have fully paid Party A after July 20, 2015, and both parties have not paid any loan interest and principal to Party A. In order to facilitate the collection, Party A, Party B and Party C agree to transfer the principal of the above-mentioned creditor's rights to Party B through consultation, and hereby reach the following agreement on the transfer: 1.1 Party A agrees to transfer its creditor's rights to Party C to Party B, Party B agrees to accept the creditor's rights. The transfer amount of the 1.2 creditor's rights is: the principal is 1 million yuan, and the interest owed before the transfer of the creditor's rights will still be directly collected by Party A from Party C in the future. 2.1 Party A and Party B agree that the transfer price of the above creditor's rights is RMB 1 million. The payment of the 2.3 transfer price shall be agreed upon by both parties through negotiation.
On September 4, 2022, the plaintiff mailed to the defendant a notice of payment of the transfer price of the claim in the form of a registered letter, which was returned on September 12, 2022.
Referee result
The court ruled that the 1. defendant B shall pay the plaintiff Tao Yubo's creditor's rights transfer 1 million yuan within 10 days from the effective date of this judgment. 2. Defendant B shall pay the overdue interest of Plaintiff A Company within ten days from the effective date of this judgment: based on 1 million yuan, from September 13, 2022 to the date of actual payment, calculated according to the quoted interest rate of the loan market published by the National Interbank Lending Center during the same period. The 3. dismissed the other claims of the plaintiff, Company A.
The court held
The parties shall provide evidence to prove the facts on which their claims are based or on which they refute the claims of the other party. The creditor's rights transfer agreement signed by the original and the defendant is the true intention of both parties, the content does not violate the mandatory provisions of China's laws and administrative regulations, legal and effective, both parties should fully perform their respective obligations. Therefore, the court supports the plaintiff's demand that the defendant pay the transfer price of creditor's rights of 1 million yuan. Since both parties did not agree on the payment time, overdue interest and service matters in the agreement, and the defendant did not receive the notice of payment of the transfer price of creditor's rights mailed by the plaintiff, the court decided to take 1 million yuan as the base for the interest claimed by the plaintiff, from September 13, 2022 to the actual payment date, according to the loan market quotation rate published by the National Interbank Lending Center during the same period, the interest request for the excess part is not supported by the Court.
Application for retrial
After Defendant B found out that his account was frozen, Fang learned that the first-instance judgment came into effect and the case entered the execution procedure, so he entrusted a lawyer to apply for a retrial on his behalf. One of the reasons for the retrial is that it is in line with item (IX) of article 207th of the the People's Republic of China civil procedure law amended in 2021. the specific reasons are as follows:
According to the provisions of Articles 88 to 95 of the the People's Republic of China Civil Procedure Law, the first is direct service (including electronic service and lien service), then entrusted service and mail service, and finally the service can be announced only when the whereabouts of the person to be served is unknown or cannot be served by other means.
1. In this case, the number of Defendant B provided by Plaintiff A to the court when filing the case was not available and could not be used. The number was inconsistent with the contact number of Defendant B in the Agreement on Assignment of Creditor's Rights. The court of first instance served the trial in absentia through public announcement, which was the result of Plaintiff A deliberately concealing important information and eventually led to the objective deprivation of Defendant B's right to proof and debate.
2. The mailing address of the court of first instance was the collective account address of Defendant B when he first started working, not his actual residential address, which prevented Defendant B from receiving the court's mailing summons, which was returned.
3. The date of the hearing notified in the announcement of the court summons of the first instance is inconsistent with the actual date of the hearing, resulting in defendant B being unable to attend the hearing. The date of the hearing notified by the notice of the court summons of the court of first instance is an unclear date, that is, "after 30 days from the date of the announcement, it shall be deemed to have been served. The time limit for the submission of a defense and evidence is within 15 days after the expiration of the announcement.
Therefore, in this case, the court of first instance violated legal procedures, did not serve directly, and the announcement of the date of the hearing was inconsistent with the actual date of the hearing, resulting in the defendant B failing to appear in court to participate in the trial debate, depriving the parties of the right to debate.
retrial ruling
1. cases shall be brought up by this court; during the retrial of the 2., the execution of the original judgment shall be suspended.
The results after the arraignment will not be repeated.
Lawyer Analysis
In this case, the court deprived B of the right to debate because it did not exhaust the means of service, so it should start the retrial procedure.
The court of first instance did not keep the receipt of the summons served by mail to the parties, nor did it have the supporting materials that the whereabouts of the parties were unknown. It did not exhaust the way of service, that is, it announced the parties to serve the court summons and other legal documents and made a default judgment, resulting in defendant B failing to participate in the first instance proceedings because he could not be attributed to himself. Defendant B did not cross-examination the relevant evidence and was unable to exercise the right of debate. The court of first instance should be in violation of the provisions of Item (IX) of Article 211 of the the People's Republic of China Civil Procedure Law (2023 Amendment).
The provision on the service of public notice is a requirement for court service and a restriction on public power, which aims to protect citizens' right to respond to lawsuits from being arbitrarily deprived by judicial organs. The the People's Republic of China Civil Procedure Law (amended in 2023) regards the deprivation of the right to debate as a legal cause for retrial, that is, Article 211, paragraph 9, of the the People's Republic of China Civil Procedure Law stipulates that "if the application of a party meets one of the following conditions, the people's court shall retrial: ...... (IX) deprives the party of the right to debate in violation of the law;" making the protection of the party's right to debate a rigid constraint on the exercise of judicial power.
Article Link
1. the People's Republic of China Civil Procedure Law (2023 Amendment)
Article 95 If the whereabouts of the person on whom the service is to be served are unknown, or if service cannot be served by any other means provided for in this Section, the service shall be effected by public notice. It shall be deemed to have been served after 30 days from the date of the announcement.
In the case of service by public notice, the reasons and course of service shall be recorded in the case file.
Article 211 If the application of a party meets any of the following conditions, the people's court shall retry it:
(I) there is new evidence sufficient to overturn the original judgment or order;
(II) the basic facts confirmed in the original judgment or ruling are not proved by evidence;
(III) the main evidence used in the original judgment or order to determine the facts is forged;
(IV) the main evidence used in the original judgment or ruling to determine the facts has not been cross-examined;
(V) the parties are unable to collect the main evidence required for the trial of the case due to objective reasons, and the people's court has applied in writing to the people's court for investigation and collection, but the people's court has not investigated and collected it;
The application of the law to the original judgment or order of the (VI) is definitely wrong;
The composition of the (VII) trial organization is illegal or the judicial personnel who should be evaded according to law have not evaded;
(VIII) a party who has no legal representative to act for him or her, or who should have participated in the proceedings, fails to participate in the proceedings for reasons that cannot be attributed to him or his agent ad litem;
(IX) violating the law and depriving the parties of their right to debate;
(X) judgment by default without summons;
(11) The original judgment or ruling omitted or exceeded the request of the lawsuit;
(12) The legal document on which the original judgment or ruling was made has been revoked or changed;
(13) The judicial officers have committed embezzlement, bribery, malpractice for personal gain, or perverted the law in adjudicating the case.
2. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation (2022 amendment)
Article 138 A notice may be posted on the bulletin board of the court and the domicile of the person to be served, or a notice may be published in newspapers, information networks and other media, and the date of the announcement shall be the date of the last posting or publication. If there are special requirements for the method of service of the public announcement, it shall be carried out in the required manner. When the notice expires, it shall be deemed to have been served. Where the people's court posts a notice at the place of residence of the person to be served, it shall record the posting process by taking photos, video recording, etc.
Article 139 The public notice service shall state the reasons for the public notice service; If the public notice serves a copy of the complaint or appeal, it shall state the main points of the lawsuit or appeal, the time limit for the person to be served to reply and the legal consequences of failing to reply within the time limit; If the public notice serves a summons, it shall state the time and place of appearing in court and the legal consequences of failing to appear in court within the time limit, the right to appeal, the time limit for appeal and the people's court for appeal should also be stated.
Article 140 The service of public notice shall not apply to cases to which summary procedure applies.
Article 389: In the course of the original trial session, one of the following circumstances shall be deemed to have deprived the parties of the right to debate as stipulated in Item 9 of Article 207 of the Civil Procedure Law:
The (I) does not allow the parties to make arguments;
If the (II) should have opened a court hearing but has not yet opened a court hearing;
(III) serving a copy of the bill of complaint or a copy of the appeal in violation of the provisions of the law, making it impossible for the parties to exercise their right to debate;
(IV) other circumstances that illegally deprive the parties of their right to debate.
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