Viewpoint | Can the trustee's request for refund be supported if the trustee's request for refund is not handled?
Published:
2024-05-28
When the request for trust cannot be handled, can the request for the return of the request for trust be supported?
China has been a human society since ancient times. Finding relationships when problems arise is the first reaction of the human society. If the matters entrusted by the trustee are successfully completed, there will generally be no disputes between the trustee and the trustee. However, in real life, more and more trustees are unable to handle the entrusted matters after collecting the entrusted fees. When the request for trust cannot be handled, can the request for the return of the request for trust be supported?
First of all, it needs to be made clear that there is no clear concept of "asking for help" in our law, which may involve some informal transactions or agreements among the people, that is, the so-called "illegal asking for help". Therefore, the Supreme Court does not have a special provision on the "refund of the commission fee. For the "illegal request" type of entrustment contract dispute cases, in the trial practice, the courts in various places, even the court decisions in the same place are different. The specific analysis is as follows:
If the 1. trustee constitutes a "request-type" fraud, he shall be investigated for criminal responsibility for the crime of fraud.
The application for further education, the handling of qualifications and the handling of cases by judicial organs shall be applied for and handled in accordance with laws and regulations. However, in real life, there are very few people who achieve their goals through abnormal ways, leaving room for "request-type" crimes. The identification of "request-type" fraud mainly examines whether the perpetrator has a false promise and whether it has the purpose of illegal possession. The perpetrator's false commitment generally includes the following steps: fictitious ability-to shirk perfunctory-property for personal use.
First, the ability to fictitiously realize the entrusted matters makes the victim fall into a wrong understanding. In principle, finding a relationship and asking for a promise to do something are regarded as fictitious facts, unless there is evidence to the contrary that the perpetrator is indeed capable. The application of exclusion not only needs to find out that the successful completion of the entrustment is based on the identity, position and approval authority of the perpetrator or the trustee, but also needs to find out that the property collected is used to realize the entrustment and form a complete evidence chain.
Second, there is no ability to handle the entrustment matters and still pretend to promise. The perpetrator is not able to handle it. In order to delay or confuse the trustee, he continues to make up that he has handled various matters. For example, the perpetrator pretences to promise that he can influence the judicial case handling process by looking for a relationship, but he has not implemented the specific act of looking for a relationship or asking for a trustee to handle affairs. It can be determined that he has a fictitious fact.
Third, after receiving the activity funds, it will be used for living, investment, or other matters that have nothing to do with the entrustment (weak correlation). The flow and use of the property delivered by the trustee is the focus of the review of such cases, and the property is eventually obtained and used by the perpetrator, that is, its objective possession of the property, which can better confirm the perpetrator's false promise.
2. the trustee filed a civil lawsuit for return on the grounds of unjust enrichment and disputes over the entrustment contract, there is controversy in judicial practice, and the specific rules of judgment are summarized as follows:
1. If such a contract is invalid, it shall be dealt with in accordance with the invalid contract, that is, the defendant (trustee) shall be ordered to return the entrusted money.
(1) Huainan City Intermediate Court (2017) Wan 04 Min Zhong No. 411 Case: In this case, it was determined that the plaintiff entrusted the defendant to arrange affairs and paid the defendant a certain fee, the original and the defendant formed a principal-agent relationship. According to the principle of civil law, the agent is a civil legal act, the legality of civil legal acts for its entry into force elements, all illegal can not be represented. The agency act in this case is illegal, and the entrustment contract between the original and the defendant is an invalid contract. An invalid contract is invalid AB initio and the money received by the defendant under the contract shall be refunded.
(2) Henan Luoyang Jianxi District Court (2023) Yu 0305 Minshen No. 49 case: the court found that Article 58 of the the People's Republic of China contract Law on the legal consequences of the invalidity or revocation of the contract stipulates: "after the contract is invalid or revoked, the property acquired as a result of the contract shall be returned; if it cannot be returned or is not necessary to return, it shall be compensated at a discount." The return of property under this article means that the parties to the contract have the right to return the property that has been delivered to the other party after the contract has been confirmed invalid or revoked, and the party who has accepted the property has the obligation to return the property. The entrustment between the retrial applicant Yang X and the respondent Xu Xfeng implies the need to carry out illegal and illegal acts such as "trust relationship, going through the back door", "inviting guests and giving gifts", which does not conform to the provisions of Article 8 of the General Principles of the People's Republic of China Civil Law that "civil subjects shall not violate the law or public order and good customs when engaging in civil activities". The entrustment contract shall be invalid, the property acquired by Yang X as a result of the contract should be returned, and the original judgment of Yang X's return of the entrustment was in accordance with the law. The retrial applicant Yang X's claim that he should not return the money in full has no factual and legal basis and cannot be established according to law.
2. Such cases are not protected by law because they violate legal provisions, violate public order and good customs, and do not fall within the scope of acceptance of civil cases by the people's court, so it is ruled to reject the prosecution of the plaintiff (trustee).
(2020) Liao 07 min za41 case: the plaintiff attempted to achieve its illegal purpose through improper channels. This kind of behavior has encouraged unhealthy tendencies in society, created conditions for some people to take advantage of their positions to obtain property, and disrupted social order. Therefore, this kind of behavior violates the relevant laws and policies of our country, harms the public interests of the society, and its purpose and means are illegal and should not be protected by law, so the prosecution should be rejected.
Heilongjiang High Court (2021) Heimin No. 15 case and the above case hold the opposite view, this lawyer believes that this judgment is more reasonable, but also more in line with China's actual conditions. The court held that if such disputes are placed outside the scope of acceptance of civil cases, it is easy to cause the party receiving the benefit fee to improperly obtain illegal benefits, and it is also easy to condone the fraudulent behavior of the party receiving the benefit fee. Therefore, based on the above factors, disputes arising from the "payment of benefits" should be included in the scope of acceptance of civil cases by the people's courts in accordance with the law, and substantive judgments should be made in accordance with the judgment rules of invalid civil acts.
3. The plaintiff (trustee) was partially at fault and ordered the defendant to return part of the trustee's money.
(1) Supreme People's Court Guidance Case Database Case: Feng Moumou, Hu Moumou v Shao Moumou, Mu Moumou Entrustment Contract Dispute (Storage No.: 2023-16-2-119-001). In this case, it is determined that the trustee still receives money to accept the entrustment even though he knows that the entrusted matter is illegal, which constitutes "infringement". This belongs to the "tort" liability arising from the base contract. The tort liability is not equivalent to the liability for breach of contract of the general contract, but is based on the principle of "adaptation of fault liability" and the judgment is made according to the respective fault ratio of both parties.
(2) Qingdao Huangdao District Court (2023) Lu 0211 Minchu No. 23150 Case: The entrustment contract concluded between the original and the defendant violates public order and good customs and should be invalid. Article 58 of the the People's Republic of China Contract Law stipulates: "After a contract is invalid or revoked, the property acquired as a result of the contract shall be returned; if it cannot be returned or is unnecessary, it shall be compensated at a discount. The party at fault shall compensate the other party for the losses suffered as a result, and if both parties are at fault, they shall each bear the corresponding liability"
In summary, the possibility of requesting a refund of the cost of the request is closely related to the nature of the request. This counsel advises to avoid engaging in any form of soliciting behavior in order to safeguard fair competition and the public interest in society.
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