Guidance case No
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119 implementation reconsideration case between Anhui Chuzhou construction and Installation Engineering Co., Ltd
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and Hubei zhuiri Electric Co., Ltd
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(discussed and approved by the judicial committee of the Supreme People’s court, issued on December 24, 2019) key words: implementation / implementation reconsideration / settlement out of implementation / implementation dissent / review according to the judgment points, both parties reach an agreement on their own before the implementation procedure begins If a party applies for compulsory execution of the original effective legal document after the settlement agreement has been completed, the people’s court shall accept it
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If the person subjected to execution raises an objection to the execution on the ground that he has fulfilled the settlement agreement, it may be examined and handled with reference to Article 19 of the provisions of the Supreme People’s Court on Several Issues concerning the execution of settlement
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Relevant Law Article 225 basic case of Civil Procedure Law of the people’s Republic of China: construction contract dispute between Anhui Chuzhou construction and Installation Engineering Co., Ltd
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(hereinafter referred to as Chuzhou Jian’an company) and Hubei zhuiri Electric Co., Ltd
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(hereinafter referred to as zhuiri electric company), Qinghai Higher People’s Court (hereinafter referred to as Qinghai Gaoli electric company) On April 18, 2016, the people’s Court of the people’s Republic of China made (2015) Qing min Yi Chu Zi No
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36 civil judgment, the main contents of which are as follows: 1
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Zhui RI electric company shall pay Chuzhou Jian’an company 14.0502533 million yuan of project payment and corresponding interest within 10 days after the judgment takes effect; 2
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Zhui RI electric company shall pay Chuzhou Jian’an company 240000 yuan of lawyer agency fee within 10 days after the judgment takes effect
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In addition, it also makes a judgment on the acceptance fee, appraisal fee and preservation fee of the case
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Later, the company filed an appeal to the Supreme People’s court
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During the second trial, zhuiji electric company and Chuzhou Jian’an company signed a settlement agreement on September 27, 2016, which agreed: “1
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Zhuiji electric company shall bear a total amount of 4.633 million yuan within the scope of the first trial judgment of Qinghai High Court, including 1) 4.13 million yuan of contract principal; 2) 114000 yuan of handling fee; 3) 149000 yuan of appraisal fee; 4) 240000 yuan of lawyer fee.” 3
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Chuzhou Jian’an company agrees to apply to Qinghai High Court to release the sealing up of all bank accounts of zhuijian electric company within seven working days after the signing of this agreement
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Zhuijian electric company shall pay 4.633 million yuan as agreed above within three days after the unfreezing
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So far, all accounts of zhuijian electric company and Chuzhou Jian’an company are settled, and there is no longer any economic dispute between the two parties
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“
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After the settlement agreement was signed, zhuijian electric company applied to the Supreme People’s court to withdraw the appeal, and Chuzhou Jian’an company also applied to Qinghai High Court to remove the preservation measures against zhuijian electric company
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Zhuiri electric company paid 412880667 yuan to Chuzhou Jian’an Qinghai Branch on October 28, 2016, and Chuzhou Jian’an Qinghai Branch issued a receipt of 4130000 yuan
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On October 24, 2016, Chuzhou Jian’an Qinghai Branch issued a situation note, requiring zhuiji electric company to pay a total of 503000 yuan of litigation costs, appraisal costs and lawyer fees to Cheng Yinan
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Later, in order to issue an invoice, zhuiri Electric Co., Ltd
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signed a construction contract with Cheng Yinan, Wang Xinggang and he Shou in the amount of 500000 yuan
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Zhuiri Electric Co., Ltd
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paid 400000 yuan to Wang Xinggang on November 23, 2016, 100000 yuan to Wang Xinggang on July 18, 2017, and the State Taxation Bureau of Gonghe County, Qinghai Province issued an invoice of 500000 yuan
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Later, Chuzhou Jian’an company applied to Qinghai High Court for compulsory execution on December 25, 2017
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Qinghai High Court made (2017) Qingzhi No
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108 execution ruling on January 4, 2018: seal up, detain and freeze the property of RMB 10 million yuan or the corresponding value owned by the person subjected to execution zhuiri electric company
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In fact, a total of 126605118 yuan was frozen in the three bank accounts of zhuiji electric company, and the (2017) Qingzhi No
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108 enforcement notice and (2017) Qingzhi No
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108 enforcement ruling were delivered to zhuiji electric company
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Zhuiji electric company refused to accept the above ruling of Qinghai High Court and raised a written objection to the court
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Objection: both parties signed the settlement agreement through negotiation on September 27, 2016, and now zhuiji electric company has fully fulfilled all obligations stipulated in the above agreement
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At present, Chuzhou Jian’an company denies the validity of the settlement agreement on the ground that Wang Xinggang, the signer of the agreement, has no agency right
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The reason for the application for compulsory execution is obviously untenable and violates the principle of good faith
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The execution ruling made by Qinghai High Court should be revoked
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To this end, Qinghai High Court made (2017) qingzhiyi No
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18 executive ruling and revoked (2017) qingzhiyi No
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108 executive ruling
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Chuzhou Jian’an company, the executor of the application, was not satisfied and applied to the Supreme People’s court for reconsideration
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The main reasons are as follows: the signer of the settlement agreement involved in the case is “Wang Xinggang”, who has no right to sign the agreement on behalf of Chuzhou Jian’an company, and the agreement shall be invalid; zhuijian electric company also fails to perform its payment obligation according to the settlement agreement; the settlement agreement proposed by zhuijian electric company is not reached at the implementation stage, if it thinks that the settlement agreement is valid, In the first instance, it should not be carried out any more, but should apply for retrial or be prosecuted separately
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The judgment results: Qinghai Provincial Higher People’s court made the (2017) qingzhiyi No
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18 execution ruling on May 24, 2018, and cancelled the (2017) qingzhiyi No
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108 execution ruling
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Anhui Chuzhou construction and Installation Engineering Co., Ltd
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refused to accept and applied to the Supreme People’s court for reconsideration
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On March 7, 2019, the Supreme People’s court made the (2018) Supreme Law Enforcement Order No
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88, rejected the reconsideration request of Anhui Chuzhou construction and Installation Engineering Co., Ltd., and maintained the (2017) qingzhiyi No
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18 executive order of Qinghai Higher People’s court
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The Supreme People’s court held that: 1
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As for the nature of the settlement agreement, the settlement agreement is a settlement agreement reached by the parties themselves before the commencement of the execution procedure, which belongs to the settlement outside the execution
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Compared with the enforcement of the settlement agreement, the non enforcement settlement agreement cannot automatically affect the enforcement of the people’s court, and the parties still have the right to apply to the people’s court for enforcement
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If zhuiji electric company raises an objection to the execution on the ground that the settlement agreement reached by the parties themselves has been fulfilled, the people’s court may review the effectiveness and performance of the settlement agreement with reference to Article 19 of the provisions of the Supreme People’s Court on Several Issues concerning the execution of the settlement agreement, so as to determine whether the execution is terminated
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2
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As for the effectiveness of the settlement agreement involved in the case, although Chuzhou Jian’an company claimed that Wang Xinggang, who signed the settlement agreement on behalf of Chuzhou Jian’an company, neither authorized nor stamped the official seal on the settlement agreement, and the settlement agreement has no effect on it, Chuzhou Jian’an company submitted the settlement agreement to Qinghai High Court according to the agreement after the settlement agreement was signed Chuzhou Jian’an company applied to release the property preservation and sealing up of zhuijian electric company, negotiated with zhuijian electric company for many times on the payment and receipt invoice under the settlement agreement, and received the payment, receipt and invoice under the settlement agreement
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Therefore, Chuzhou Jian’an company showed its agency right to Wang Xinggang and its obligation to the settlement agreement by its actual performance The validity is fully recognized, and the settlement agreement is valid.
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