Plaintiff Zhou Zeshi, male, 1986, born on September 5, Han nationality, lives in Ningxiang County.
Authorized Agent: Wen Yizhi, lawyer of Hunan Yanming Law Firm. (Special authorization)
Defendant: Hunan Keli Classical Architecture Landscape Engineering Co., Ltd., domiciled in Quwanba Formation, Daan Village, Qingzhuhu Town, Kaifu District, Changsha City (Xiao Xinmingzhai).
Legal Representative: Xia Keli, board chairman of this company.
Authorized Agent: Zhong, lawyer of Hunan Law Firm. (Special authorization)
The plaintiff Zhou Zeshi and the defendant Hunan Keli Classical Architecture Landscape Engineering Co., Ltd. (hereinafter referred to as Keli Landscape Engineering Co., Ltd.) filed a case in our hospital on May 3, 2065, and the trial was held in public by applying ordinary procedures according to law. Plaintiff Zhou Zeshi, his agent ad litem Wen Yizhi and defendant agent ad litem Zhong attended the proceedings. The case has now been closed.
Plaintiff Zhou Zeshi filed the following claims with our court: 1, the defendant immediately repaid the plaintiff's loan principal of 750,000 yuan; 2. The defendant paid the plaintiff the interest calculated at four times the loan interest rate of China People's Bank from August 23rd, 20 14 (the interest calculated to April 22nd, 20 16 is 307,500 yuan), and the latter interest was calculated until the defendant paid off the loan principal; 3. The defendant paid the plaintiff's lawyer's fee of 30,000 yuan to realize the creditor's rights; The defendant should bear all the litigation costs related to this case. Facts and reasons: From 2065438 to May 2004, Liu Xinrong, the shareholder of Keli Garden Company (Liu Xinrong is also the head of Zhuhai Branch of Hainan Zhonghangxin Construction Engineering Co., Ltd.), wanted to undertake "People's Home". "Time Washington" project developed by leiyang city Baixing Real Estate Development Co., Ltd. (hereinafter referred to as Baixing Real Estate Company) in the name of Hainan Zhonghangxin Construction Engineering Co., Ltd. (later renamed Hainan Zhonghangxin Construction Engineering Group Co., Ltd.). The People's Real Estate Company was required to pay a deposit of 580,000 yuan for this project, but due to the cash flow difficulties in Liu Xinrong, Qin Qibao, an outsider, was required to pay the deposit in advance, and promised that Qin Qibao would contract some labor services after taking over the project, so Qin Qibao borrowed 620,000 yuan from the plaintiff. 20 14, 19 On May 9, Qin Qibao paid a deposit of 580,000 yuan to People's Real Estate Company, and on the same day People's Real Estate Company issued a receipt of 580,000 yuan to AVIC New Engineering Company. After that, Liu Xinrong needed to borrow170,000 yuan from Qin Qibao for many times due to the construction cost, and the above 750,000 yuan was provided by the plaintiff. After Qin Qibao paid the above deposit to People's Real Estate, Qin Qibao's desire to contract labor services in this project failed because the above project was delayed. After Qin Qibao informed the plaintiff of the project, Qin Qibao and the plaintiff repeatedly asked Liu Xinrong to repay the loan of 750,000 yuan. On August 8, 20 14, Liu Xinrong authorized the plaintiff to return the above-mentioned 580,000 yuan deposit to People's Real Estate Company in the name of AVIC New Engineering Company, and sent a notice to People's Real Estate Company to pay Qin Qibao, but People's Real Estate Company actually closed down and could not return the above deposit. After many consultations between the plaintiffs Qin Qibao and Liu Xinrong, Liu Xinrong admitted that the actual user of 750,000 yuan was the defendant, and agreed that the defendant unit would issue an iou and affix the official seal of the unit to directly change the creditor into the plaintiff. Both the plaintiff and Qin Qibao agreed. On August 23rd, 20 14, Liu Xinrong issued an IOU in the name of the defendant, with a loan amount of 750,000 yuan, and promised to pay the amount before October 30th, 20 14. If the payment is overdue, it fails to pay the plaintiff interest at 4 times of the bank loan interest rate in the same period, and bears all the expenses for the plaintiff to realize the creditor's rights, but the defendant still fails to repay the plaintiff 750,000 yuan. The plaintiff thinks that he is the shareholder of the defendant company and the person in charge of Xin Engineering Company. Although the construction contract was signed with the People's Real Estate Company in the name of the new engineering company, and the down payment was paid to it in the name of the new engineering company, the defendant filed a lawsuit for his act of ratifying the shareholders afterwards, clearly indicating that the defendant was willing to bear the repayment obligation of the loan, and the defendant should repay it in time according to the terms of the loan.
The defendant Keli Garden Company replied that 1, the plaintiff proved that the actual loan of 750,000 yuan to the defendant could not be established by IOUs. The amount on the IOU submitted by the plaintiff was actually signed by Liu Xinrong in Leiyang, and Liu Xinrong also made a written statement. The defendant was unaware of the signature and seal on the debit note submitted by the plaintiff. The loan stated in the iou submitted by the plaintiff has no delivery certificate.
2. The plaintiff's other evidence only proves that it did not pay the respondent a loan of 750,000 yuan. The debit note issued by Qin Qibao and the bank transaction statement submitted by the plaintiff are the relationship between the plaintiff and Qin Qibao, and have nothing to do with the defendant. The supplementary agreement of the project construction contract submitted by the plaintiff can only prove that there is a construction contract relationship between People's Real Estate Company and China Airlines Engineering Company, which is a contract between two independent legal persons, and has nothing to do with the plaintiff's need to prove whether the loan of 750,000 yuan has been delivered. The receipt submitted by the plaintiff for People's Real Estate Company cannot prove that the plaintiff paid 580,000 yuan to AVIC New Engineering Company in advance, nor can it prove that the plaintiff paid 580,000 yuan to the respondent with this receipt, which has nothing to do with the plaintiff's loan. The Notice of Special Payment and the Power of Attorney submitted by the plaintiff to TravelSky Engineering Company are matters of refunding the deposit between People's Real Estate Company and TravelSky Engineering Company, and have nothing to do with the defendant. The letter of commitment dated 2065438+ August 6, 2005 submitted by the plaintiff was personally issued by Liu Xinrong, which did not represent Keli Garden Company. It was a commitment with additional conditions for commencement, and had nothing to do with the loan. It could not actually prove that 65438+10,000 yuan was actually paid to the respondent. The above evidence submitted by the plaintiff denies the IOU provided by the plaintiff on August 23rd, 20 14.
There is no legal basis for the plaintiff to ask the defendant to bear the lawyer's agency fee. The IOU in this case was issued by coercion, which should be invalid according to law, and its terms are naturally invalid. Moreover, according to the lawyer's fee standard of Hunan Province, the maximum amount of lawyer's fee charged by the plaintiff should be about 2 1500 yuan, and the lawyer's fee charged by the plaintiff exceeded the prescribed amount by about 8,500 yuan. In addition, the date of this receipt is 20 15438+065438+2005125 October. The plaintiff originally sued the three defendants. This case should be considered unreasonable and the lawsuit has been dismissed. In this lawsuit, the plaintiff once again asked the defendant to bear the legal costs, which is unfounded.
To sum up, the plaintiff has insufficient evidence to sue and requests the court to reject it according to law.
The plaintiff submitted the following evidence to our court to support his claim:
Statement of debit note and card transaction on April 20 1 4, which proves that Qin Qibao borrowed 620,000 yuan from the plaintiff on April 20 14 to pay the performance bond, with a monthly interest rate of 2%;
Supplementary agreement to the project construction contract, which proves that AVIC New Engineering Company undertakes the project of People's Home Times Hua Ting of People's Real Estate Company.
The receipt was received on May, 2065438 19, which proves that on May, 2065438 18, Qin Qibao paid a performance bond of 580000 yuan to People's Real Estate Company on behalf of AVIC New Engineering Company.
Special payment notice and power of attorney, which prove that because the project has not started for a long time, AVIC New Engineering Company entrusted the plaintiff to serve the special payment notice to People's Real Estate Company, demanding the return of the performance bond of 580,000 yuan.
The IOU dated August 23rd, 20 1 4, which proves that:1. The plaintiff repeatedly asked Liu Xinrong to repay the money, and Liu Xinrong recognized the defendant as the actual user of all the money, and issued an IOU of 750,000 yuan to the plaintiff in the name of the defendant company; 2. The defendant promised to repay the loan before 20 141October 30. If it is not paid back within the time limit, it shall pay the interest of the overdue money at the rate of 4 times of the bank's loan interest rate for the same period, and bear all the expenses for the plaintiff to realize the creditor's rights; 3. Loan disputes shall be handled by Ningxiang County People's Court.
6.2.201Letter of Commitment dated August 3rd, May, and Letter of Commitment dated August 6th, 2065 438+05, which prove that the plaintiff repeatedly requested Liu Xinrong to return the deposit. Liu Xinrong took the original agreement and contract of the project as the guarantee, and promised that the company would pay 654.38 million yuan to the plaintiff after the project started.
7.3. Registration data of Zhuhai Branch of AVIC New Engineering Company and the defendant company, which prove that Liu Xinrong is the head of Zhuhai Branch of AVIC New Engineering Company and a shareholder of the defendant company.
8.3. Registration information of the new engineering company, which proves that the new engineering company changed its name.
9. The trial transcript of Ningxiang County People's Court, to be proved: 1. The plaintiff in this case brought a lawsuit to the court, and later withdrew the lawsuit to the court because of unclear legal relationship; 2. Prove the relevant court hearing. The defendant confirmed that the signature and seal of the loan were true.
10, an invoice of lawyer's agency fee, which proves that the plaintiff spent 30,000 yuan on lawyer's fees to realize the creditor's rights.
1 1. Bank card transaction statement, which proves that Zhou Changning paid 300,000 yuan to the card of Liu Xinqi, the legal representative of People's Real Estate Company.
12. Testimonies of witnesses Qin Qibao and Zhou Changning in court, which prove the payment of 580,000 yuan and the negotiation process between Qin Qibao and Zhou Changning.
The defendant put forward the following cross-examination opinions on the plaintiff's evidence: he disagreed with the authenticity, legality and relevance of the evidence 1. The defendant didn't know Qin Qibao mentioned in the IOU at all, and the authenticity of the IOU could not be determined. Even if the IOU is true, it is also the economic relationship between Zhou Zeshi and Qin Qibao, which has nothing to do with the defendant, and the amount is only 620,000 yuan, not 750,000 yuan advocated by the plaintiff. Evidence 2 Both the contract and the supplementary contract are copies, not signed by the defendant. This is a construction contract relationship between two legal persons, which has nothing to do with the plaintiff. It cannot be proved that there is a private lending relationship between the plaintiff and the defendant, which has nothing to do with the fact that the plaintiff actually paid the plaintiff 750,000 yuan. Evidence 3 The receipt is an economic exchange between AVIC New Engineering Company and People's Real Estate Company, a construction contract relationship, not a private lending relationship, and has nothing to do with the facts that the plaintiff wants to prove. Do not express opinions on the authenticity and legality of Evidence 4, but have objections to its relevance. These two evidences have nothing to do with the loan relationship between the plaintiff and the defendant, and cannot prove the fact that the defendant owes the plaintiff 750,000 yuan. The power of attorney is true, but it has nothing to do with this case. This is the relationship between China Airlines Engineering Company and the plaintiff Zhou Zeshi, and has nothing to do with the defendant. The words and seals written in Evidence 5 are true, but the contents are not true. The plaintiff did not have any evidence to prove that it paid 750,000 yuan to the defendant, and the defendant did not receive it. The plaintiff has no proof of payment to the defendant, and the loan relationship between the original and the defendant cannot be determined only by this IOU. Evidence 6 Liu Xinrong is not the legal representative of the defendant, and his promise has no legal effect without the authorization and ratification of the defendant. In addition, the letter of commitment is a conditional commitment. The proviso is 20 15. If the project starts at the end of August, the condition that you can pay100000 yuan to Zhou Zeshi is not established. The letter of commitment does not mean borrowing from Keli Company, so it has nothing to do with the facts that the plaintiff wants to prove. Evidence 7 and 8 have nothing to do with the loan claimed by the plaintiff. Evidence 9 The defendant didn't get a penny from the plaintiff. The court record can only prove that the plaintiff filed a lawsuit in court, but according to the court record, it can't prove the fact that the defendant borrowed money from the plaintiff. Evidence 10 The iou proposed by the plaintiff was forcibly issued by the defendant, which should be invalid and its contents invalid. Moreover, according to the lawyer's fee standard in Hunan Province, the lawyer's fee is obviously too high, and there is no legal basis for the other party to ask us to bear the lawyer's fee. This happens because the plaintiff sued three defendants at the beginning. The plaintiff in that case thought it was unreasonable to withdraw the lawsuit, and today he asked us to bear the agency fee for the case he thought was unreasonable to sue and withdraw the lawsuit. There is no legal basis. There is no objection to the authenticity of the evidence 1 1, and the payer and payee have nothing to do with this case and the defendant's loan.
The defendant submitted the following evidence to our court to support his defense claim:
1, Liu Xinrong's statement, which proves that he was forced to write an IOU. The defendant didn't borrow money from Zhou Zeshi and didn't know Qin Qibao.
2. The complaint is intended to prove that the plaintiff's two prosecutions are inconsistent.
The plaintiff expressed the following cross-examination opinions on the defendant's evidence: there is no objection to the authenticity of the evidence 1 signature, but there is objection to the content. If the IOU is forced to report to the public security or exercise its cancellation right within one year, Liu Xinrong is the general manager of the company and can sign documents on behalf of the company, and the IOU issued on behalf of the company shall bear corresponding responsibilities. There is no objection to the authenticity and legality of Evidence 2, and there is objection to the defendant's purpose of proof. The basic facts are not different, but the details are different. The first prosecution is more complicated, and this prosecution makes the legal relationship clearer.
The comprehensive authentication of the evidence submitted by the parties is as follows: the evidence submitted by the plaintiff is 1, and the defendant has objections from three aspects, but this evidence can prove that he lent Qin Qibao 620,000 yuan. Combined with the actual situation of this case, our court accepts its authenticity. Evidence 2 submitted by the plaintiff has nothing to do with this case, and this court will not accept it. The authenticity of evidence 3 and 4 submitted by the plaintiff is accepted by our court. Evidence 5 submitted by the plaintiff is an IOU with an amount of 750,000 yuan. The defendant claimed that it was issued by the outsider Liu Xinrong under duress, but the defendant did not provide other evidence to prove his defense. The court confirmed that the IOUs were issued by Liu Xinrong, but the others were not confirmed. Evidence 6, 7, 8 and 9 provided by the plaintiff are not directly related to this case and will not be adopted by our court. The evidence provided by the plaintiff is 10, and our court confirms its authenticity. The evidence submitted by the plaintiff 1 1, 12, combined with the evidence submitted by the plaintiff 1, is confirmed by our court. The evidence submitted by the defendant was 1, stating that the author did not testify in court and there was no other evidence to support it, which was not accepted by the court. The evidence submitted by the defendant 2 is confirmed by the court.
According to the accepted evidence and the statements of the parties, our court finds the facts of this case as follows:
14, 10, the outsider Qin Qibao borrowed 620,000 yuan from the plaintiff Zhou Zeshi, and issued a debit note, which read as follows: "Today, I borrow six hundred and twenty thousand yuan (620,000.00) from Zhou Zeshi, with a monthly interest of 2%. Qinqibaotiao 20 14 April 10. " Qin Qibao, an outsider, claimed that the loan was paid by the plaintiff Zhou Zeshi in the form of transfer.
Liu Xinrong, an outsider, is the head of Zhuhai Branch of Hainan Zhonghangxin Engineering Co., Ltd. ... Qin Qibao, an outsider, said that Liu Xinrong, in the name of Hainan Zhonghangxin Engineering Co., Ltd., planned to contract the above-mentioned Hua Ting project of leiyang city people's homeland, and because it was necessary to pay the company a deposit of 4 million yuan, Qin Qibao, an outsider, took out 580,000 yuan from the above-mentioned loan to make up the above-mentioned deposit of 4 million yuan (Qin Qibao said that he planned to contract labor services from the project). On May 9, 20 14, the outsider leiyang city Baixing Real Estate Development Co., Ltd. issued a receipt to Hainan Zhonghangxin Construction Engineering Co., Ltd., which read as follows: "I have received a performance bond of RMB 580,000.00 Yuan (in figures) from Zhonghangxin Construction Engineering Co., Ltd.
2065438+On August 8th, 2004, Hainan Zhonghang New Construction Engineering Co., Ltd. issued a special payment notice to leiyang city Baixing Real Estate Development Co., Ltd., the main contents of which were as follows: "2065438+On May 9th, 2004, your company issued a receipt:' Today, Qin Qibao of Zhonghang New Construction Engineering Co., Ltd. delivered 50 Baoding gold coins to People's Company for the development of Hua Ting project in People's Homeland era. Due to your company's reasons, the Times Hua Ting project has not been started so far. Our company requires you to immediately return the deposit of 580,000 yuan to Comrade Qin Qibao in full. Qin Qibao ID number: XXXX All economic responsibilities and legal consequences returned by your company according to this circular letter shall be borne by our company. Please give us your support. On the same day, Hainan Zhonghang New Construction Engineering Co., Ltd. issued a power of attorney to the plaintiff Zhou Zeshi. The main contents of the power of attorney are: "I hereby authorize Comrade Zhou Zeshi (ID number: XXXXX) to handle the service of the special payment notice, and have the right to return all relevant supporting documents and signatures on the agreement on behalf of our company."
On August 23rd, 20 14, the defendant Hunan Keli Classical Architecture Landscape Engineering Co., Ltd. issued a debit note to the plaintiff, which read: "The borrower Hunan Keli Classical Architecture Landscape Engineering Co., Ltd. has borrowed RMB seven hundred and fifty thousand Yuan only (in figures: 750,000.00 Yuan only) from the lender as working capital. The loan is scheduled to be repaid before 20 14 years 10. If the loan is not paid back within the time limit, it shall pay the lender the interest on overdue payment at the rate of four times that of similar loans in the same period of the bank. If the loan involves litigation, I agree that the loan dispute shall be handled by Ningxiang County People's Court, and all expenses incurred by the lender for realizing the creditor's right shall be borne by me. At the same time, when I issued this IOU, I had actually received all the loan amount paid by the lender agreed by both parties. Therefore, I hereby issue this iou for confirmation. Borrower: Xia Keli (here stamped with Xia Keli seal and special financial seal of Hunan Keli Classical Architecture Landscape Engineering Co., Ltd.) IDNo.: XXX Tel: XXX 2065438+XXXX was signed by Executive Director Liu Xinrong on August 23, 2004. " The financial special seal of the defendant Keli Company, the seal of the legal representative Xia Keli and the signature of Xia Keli on the above IOUs are all signed by Liu Xinrong. The defendant Keli Company claimed that the above-mentioned IOUs were signed by Liu Xinrong under the coercion of the plaintiff, and the plaintiff refused to recognize them.
2015165438+1On October 23rd, the plaintiff Zhou Zeshi, Keli Garden Company, Hunan Keli Classical Architecture Garden Engineering Co., Ltd., Beijing Branch, Hainan Zhonghang New Construction Engineering Group Co., Ltd. and Zhuhai Branch of Hainan Zhonghang New Construction Engineering Co., Ltd. filed a lawsuit against the defendant for the loan in this case. Later, on February 9, 20 16, the prosecution against the above-mentioned parties was withdrawn on the grounds that Hunan Keli Classical Architectural Landscape Engineering Co., Ltd. Beijing Branch, Hainan Zhonghangxin Construction Engineering Group Co., Ltd. and Hainan Zhonghangxin Construction Engineering Co., Ltd. Zhuhai Branch were irrelevant to the case, and the prosecution against Keli Garden Company was withdrawn on the grounds of applicable legal relationship and omission of the parties in March, 20 16. On May 3, 20654381day, the plaintiff Zhou Zeshi Yikeli Garden Company sued again as the defendant, forming a lawsuit in this case.
It was also found that the plaintiff Zhou Zeshi did not directly pay the loan of 750,000 yuan to the defendant Keli Garden Company or the person designated by the defendant Keli Garden Company.
We believe that the focus of the dispute in this case is whether there is a private lending relationship or a creditor-debtor relationship between the plaintiff Zhou Zeshi and the defendant Keli Company. According to Article 196 of People's Republic of China (PRC) Contract Law, a loan contract is a contract in which the borrower borrows money from the lender, repays the loan at maturity and pays interest. The plaintiff in this case admitted that he did not directly pay the loan to the defendant Keli Garden Company or the person designated by the defendant Keli Garden Company, so there was no direct private lending relationship between the original and the defendant. According to Article 84 of People's Republic of China (PRC) Contract Law, if the debtor transfers all or part of its contractual obligations to a third party, it shall obtain the consent of the creditor. Debt commitment is based on the agreement reached between the creditor, the debtor and the third party, and the third party bears part or all of the debt for the original debtor. In this case, the plaintiff Zhou Zeshi borrowed 620,000 yuan from the outsider Qin Qibao, and Qin Qibao issued an iou to him, forming a private lending relationship with Qin Qibao. After Qin Qibao claimed that he invested 580,000 yuan in People's Real Estate Company, and there was no direct creditor-debtor relationship between the plaintiff and the defendant Keli Garden Company. Liu Xinrong, an outsider in the case, issued an IOU of 750,000 yuan to the plaintiff in the name of Keli Garden Company, which did not mean to bear the debt, and did not constitute a debt of 620,000 yuan borrowed from the plaintiff by Keli Garden Company. To sum up, the plaintiff's claim has no legal basis, and this court will not support it. Accordingly, according to Articles 84 and 196 of the Contract Law of People's Republic of China (PRC) and Article 90 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
Reject the plaintiff Zhou Zeshi's claim.
The case acceptance fee 143 18 yuan shall be borne by the plaintiff Zhou Zeshi.
If you refuse to accept this judgment, you can submit an appeal to our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and appeal to the Intermediate People's Court of Changsha City, Hunan Province.
Presiding judge Li Yang
People's Juror Jiang Huijun
People's Juror Liu Huan
2014 February 7
Bookkeeper Yang Xiao
People's Court of Ningxiang County, Hunan Province
(20 15) Ning Min Zi Chu No.05469 Civil Decision
Plaintiff Zhou Zeshi.
Special agent Wen Yizhi, lawyer of Hunan Yanming Law Firm.
Authorized Agent: Hu Yuting, lawyer of Hunan Yanming Law Firm.
Defendant: Hunan Keli Classical Architecture Garden Engineering Co., Ltd.
The legal representative is Xia Keli, chairman of the board.
Authorized Agent: Zhong, lawyer of Hunan Law Firm.
Authorized Agent: Liu Mi, lawyer of Hunan Wu Qiong Law Firm.
Defendant: Hunan Keli Classical Architecture Garden Engineering Co., Ltd. Beijing Branch.
Legal Representative Sun Guibin.
Defendant Hainan Zhonghang New Construction Engineering Group Co., Ltd. ..
The legal representative is Wu Xiangyang.
Defendant Hainan Zhonghangxin Construction Engineering Co., Ltd. Zhuhai Branch.
The legal representative is Liu Xinrong.
Plaintiff Zhou Zeshi and defendant Hunan Keli Classical Architecture Landscape Engineering Co., Ltd. filed a case in our hospital. On February 9, 20 15, the plaintiff Zhou Zeshi withdrew the lawsuit against the defendants Hunan Keli Classical Architectural Landscape Engineering Co., Ltd. Beijing Branch, Hainan Zhonghangxin Construction Engineering Group Co., Ltd. and Hainan Zhonghangxin Construction Engineering Co., Ltd. Zhuhai Branch, and applied to our hospital for withdrawing the lawsuit on March 8, 20 16.
We believe that it is legal for the plaintiff to voluntarily apply for withdrawal of the prosecution. According to the provisions of the first paragraph of Article 145 of the Civil Procedure Law of People's Republic of China (PRC), the ruling is as follows:
Allow the plaintiff Zhou Zeshi to withdraw the prosecution.
The acceptance fee for this case is 1 1600 yuan, and 5800 yuan will be charged at half, which shall be borne by the plaintiff Zhou Zeshi.
Presiding judge Zhang
People's Juror He Jinsong
People's juror Zeng Chaoyang
201March 9, 6
Bookkeeper Chen Rong