[juridical summary]
Tort liability law protects the person rights and interests with civil legitimate principal part and property rights and interests. Hold water lawfully and the creditor's rights of become effective belongs to the property rights and interests with legitimate creditor, get legal protection, anybody must not be encroached at will. Creditor's rights happening is between specific party, lack is general show a gender. Usually, creditor should relieve view right through the contract. The 3rd person beyond cognizance contract party assumes tort liability to pay compensation, should from severe hold. Relieve a way when creditor right already end, the 3rd person besides relationship of creditor's rights debt, if know to perhaps ought to know relationship of creditor's rights debt exists, and violate the law that is a purpose with protecting this creditor's rights, statute file of law of etc standard sex or violate Gong Xuliang convention, cause creditor to add up to right beneficial to be damaged, behavior person assumes corresponding additional liability to pay compensation.
Top people court (2017) top magic art civilian eventually 181
Medium and small businesses assures the company should be denied assume joint liability
(one) branch of Jilin of company of Great Wall property enjoys some assuring creditor's rights should be denied through " contract law " , " business failure law " solve
Of branch of Jilin of company of property of 1. Great Wall assure creditor's rights is lawful and effective. Came 1997 2001, china star company is tall special the loan debt of Ji Longding group offers branch of company, traumatic hospital, semiconductor assure. Assure after contract become effective, china star company has security according to it assure debt, ought to fulfill appropriately according to honest credence principle. On January 15, 2009, china star company holds his free of some case experience equity to delimit turn to medium and small businesses to assure company. On January 4, 2011, assure creditor Jilin saves national endowment company to sue Hua Xing company to assume assure responsibility. Ever since, branch of Jilin of company of Great Wall property saves national endowment company to suffer from Jilin let case experience assure creditor's rights, assure after creditor's rights is made over, its offer this case suit as accuser. According to top people court (2014) civilian 2 eventually the word adjudicates the fact that find out the 99th number, delimit in afore-mentioned equity free before turning, creditor to advocate debtor and Hua Xing company all advocated creditor's rights, but fail to obtain pay off. This court decision is maintained, branch of Jilin of company of Great Wall property is enjoyed to China star company assure creditor's rights. When this court decision produces effectiveness, hua Xing company already was cancelled, case experience assures creditor's rights fails to obtain pay off.
Branch of Jilin of company of property of 2. Great Wall enjoys some assuring creditor's rights did not include go bankrupt creditor's rights. On March 15, 2011, branch of Jilin of company of Great Wall property saves national endowment company from Jilin paid suffer let case experience assure creditor's rights, creditor's rights is made over already informed debtor of Hua Xing company, branch of Jilin of company of Great Wall property has company of Quan Xianghua star to advocate creditor's rights. On April 15, 2011, china star company applies for to go bankrupt to court of Jilin high new developed area, on August 24, 2011, court of Jilin high new developed area is made (2011) auspicious is new and high civilian broken word ruling of 1-4 order is terminative go bankrupt liquidation program, go bankrupt in creditor's rights the first those who arrange a pay off for Hua Xing the company owes paid work reward, the 8 units creditor's rights such as agency of product of chemical industry of birch of Jilin city auspicious is common go bankrupt creditor's rights, the case experience that branch of Jilin of company of Great Wall property enjoys assures creditor's rights did not include go bankrupt creditor's rights. " business failure law " the 44th regulation, "People court is accepted go bankrupt the creditor that creditor's rights enjoys to debtor when application, the program exercise right that this code decides according to. " the 48th regulation, "The creditor's rights that creditor ought to decide in people court declares deadline introversion to manage a person to declare creditor's rights. " fiftieth 7 regulations, "After administrative person receives creditor's rights to declare material, ought to register tabulation, undertake checkup to the creditor's rights that declare, weave creditor's rights is expressed. " branch of Jilin of company of Great Wall property goes bankrupt in China star company after application is accepted lawfully to go bankrupt administrative person declared creditor's rights, but go bankrupt administrative person did not label branch of Jilin of company of Great Wall property go bankrupt creditor, because branch of Jilin of company of Great Wall property cannot return duty at its the main content of oneself fails to participate in go bankrupt belongings allocation, and go bankrupt liquidation program is already terminative, its assure creditor's rights cannot be passed go bankrupt the program is relieved. Medium and small businesses assures company about branch of Jilin of company of Great Wall property be Hua Xing company go bankrupt creditor, ought to according to " business failure law " a:appellant excuse that provides exercise right, cannot hold water.
Equity of 3. case experience does not belong to branch of Jilin of company of property of creditor Great Wall to go bankrupt in China star company can request to increase distributive worth after the program is terminative. " business failure law " the 123rd regulation, "Go bankrupt oneself program according to Benfadi 43 the 4th or since the day with the 120th terminative regulation inside 2 years, have one of following state, creditor can ask people court according to go bankrupt belongings allocation plan undertakes supplementary allocation: (one) discovery has according to Benfadi 31, thirtieth 2, thirtieth 3, thirtieth sets the property that ought to recover 6 times; (2) discovery goes broke the person has ought to offer distributive of other property. " case experience equity already cannot according to go bankrupt belongings allocation plan is increased to creditor allocate. Above all, case experience equity turns to medium and small businesses to assure at delimiting on January 15, 2009 company, china star company goes broke when application and go bankrupt after application is accepted, come go bankrupt before the program is terminative, case experience equity did not bring into limits of belongings of debtor of China star company, not applicable " business failure law " thirtieth 3 regulation. Next, case experience equity delimits after turning two years, China star company is entered go bankrupt program, go bankrupt administrative person does not have a basis " business failure law " formulary request cancel recovers thirtieth experience case equity, also do not accord with " business failure law " thirtieth 2, the condition that thirtieth sets 6 times. The 3rd, about recovering the problem of two years of deadline. Medium and small businesses assures the company did not offer evidence to prove, in Hua Xing company free delimits turn creditor informed when case experience equity, creditor basis " contract law " cancel of the exercise inside a year counterpoises since the day that authority knows to perhaps ought to know cancel particulars of a matter oneself. In March 2011, branch of Jilin of company of Great Wall property saves senior people court to sue China star company and medium and small businesses to assure to Jilin company, free of equity of experience of request cancel case delimits turn behavior, jilin saves ruling of senior people court to reject sue. On August 5, 2013, top people court (2012) civilian 2 eventually word first instance of cancel of the 58th civil ruling, dictate court of high new developed area of Jilin of this brief of a case is tried, when court of Jilin high new developed area accepted this proposal on July 3, 2014, china star company already went broke liquidation is terminative more than two years. Branch of Jilin of company of Great Wall property hard according to " business failure law " the regulation realizes the right to relieve.
On put together, medium and small businesses assures company answer about branch of Jilin of company of Great Wall property basis " contract law " , " business failure law " a:appellant reason of right of relevant provision view, cannot hold water.
(2) medium and small businesses assures the company should be denied assume tort responsibility
The litigant request according to branch of Jilin of company of Great Wall property and reason, branch of Jilin of company of Great Wall property basically requests medium and small businesses to assure the company assumes tort responsibility. Generally speaking, creditor's rights happening is between specific party, lack is general show a gender, the 3rd person often cannot foreknow, do not belong to the protective limits of tort law normally, of course, tort liability law also did not eliminate creditor's rights to be besides protective limits. Reason, creditor's rights protection basically passes the legal system such as contract law to relieve, if maintain the 3rd person beyond contract party to assume tort liability to pay compensation, ought to from severe hold.
1. medium and small businesses assures whether is the company put in subjective fault. According to the fact that first instance finds out, on January 16, 2006, china star company to Jilin city national endowment is asked show, because of Hua Xing company endowment not pay a debt in kind or by labour, application changes make. Plan holds his some case experience equity to hand in You Jilin municipal government to handle for China star company, jilin municipal government is in charge of receiving find a place for worker of Hua Xing company. Jilin city state endowment appoint give an official agrees and to table a proposal of Xiang Jilin municipal government, delimit free of case experience equity medium and small businesses assures company. Reason afore-mentioned equity free delimit turn plan, belong to business of China star company to change the component that makes plan. State-owned asset supervises the State Council administrative committee " change the announcement that makes working opinion about normative and state-owned company " , " change the announcement that makes the job carry out an opinion about farther normative and state-owned company " , emphasize clearly changing in the enterprise in controlling a process, must conserve financial creditor's rights, fulfil financial debt, prevent to use an enterprise to change make escape useless finance debt. Although free of case experience equity delimits,turn government of people of city of formally by Jilin and the branch is approved related its, but essence is Jilin city state endowment appoint fulfil contributive person obligation, change make free of company of unit China star delimit turn state-owned asset assures to medium and small businesses company, tripartite cooperates to fulfil change make plan. " company of People's Republic of China is state-owned capital standard " thirtieth regulation, "The country is contributive enterprise amalgamative, schism, change make, appear on the market, increase or decrease register capital, issue bond, have major investment, offer for other big assure, transfer great property, undertake big donate, distribute profit, and disband, application goes bankrupt wait for major item, ought to abide by the regulation of law, administrative regulations and company rules, do not get the rights and interests that damages contributive person and creditor. " the disciplinary action that China star company is changing equity of experience of the counterproposal in controlling a process, belong to state-owned company free to transfer great property, do not get the legitimate rights and interests that damages creditor lawfully. State-owned asset supervises the State Council administrative committee carries out at was being released on August 29, 2005 " the company is state-owned property right free delimits turn run temporary measure " the 6th regulation, "The company is state-owned property right free delimits turn ought to do good feasibility to consider. Free delimits turn feasibility report ought to carry commonly bright following content... (3) be delimited turn to the financial standing of the enterprise is reached or have indebted case " , the 7th sets, "Delimit turn both sides ought to be on feasibility research foundation, undertake deliberative according to in-house and decision-making process, form written resolution. " the 8th regulation, "Lay off just ought to delimit with respect to free turn item informs this company (unit) creditor, the debt that makes phasing answer deals with plan. " afore-mentioned normative sex files make clear a regulation, delimit turn square free delimits turn ought to inform creditor, china star company just ought to be depended on as lay off compasses make debt deal with, delimit turn plan, medium and small businesses assures the company serves as receive debit to ought to consider to discuss and form written resolution. China star company delimits about free of sectional ask for instructions to the government turn the enterprise when capital of case experience equity already endowment not pay a debt in kind or by labour, to this, medium and small businesses assures the company knows or ought to foreknow. " civil code general rule " the 5th regulation, "The civil rights and interests with citizen, legitimate corporative gets legal protection, any organizations must not be encroached with the individual. " of branch of Jilin of company of Great Wall property assure the property rights and interests that creditor's rights belongs to creditor to be enjoyed lawfully, get legal protection. In relationship of creditor's rights debt, debtor ought to follow honest credence principle, fulfil contract obligation, promote the pay off that realizes creditor's rights actively. In the meantime, the 3rd person besides debtor, to hold water lawfully and the creditor's rights of become effective, yi Yingbing holds kindness, do not encroach at will. China star company is in endowment not the free below the pay a debt in kind or by labour, case that is close to going bankrupt delimits turn case experience equity gives another person, have escape those who abolish liability is subjective and intended. Medium and small businesses assures the company fails to offer evidence to prove its obtained equity worth to pay reasonable to valence. Medium and small businesses assures the company cooperates Hua Xing company to escape useless debt behavior violated law and regulation of normative sex file, violate convention of public order fine, have the subjective fault that violates others money property right. Medium and small businesses assures state of city of company, Jilin endowment appoint one, 2 careful view, of case experience equity delimit turn the name is for free, fact paid, medium and small businesses assures the company receives pair of price that equity makes over is a government to Hua Xing about the branch company worker undertakes finding a place for, find a place for the worker's charge exceeds two 100 million, but all did not offer evidence to prove. In addition, medium and small businesses assures national endowment of company and Jilin city appoint say again, china star company 7000 of more than the first arrange a labor creditor's rights to have not obtain pay off, one adjudgement will cause worker dimension to counterpoise definitely. Medium and small businesses assures the state that the company already paid pair of price about receiving equity is incongruous, this academy does not grant to collect a letter. Medium and small businesses assures a:appellant reason that the company receives case experience equity about its free and does not have fault, cannot hold water.
2. free delimits turn behavior of case experience equity harmed interest of property of creditor of Hua Xing company directly. China star company delimits case experience equity turn to medium and small businesses to assure enter namely after the company go bankrupt program. Court of Jilin high new developed area (2011) auspicious is new and high civilian ruling of 1-4 order finds out broken word, on August 23, 2011, the basis goes bankrupt supervisory clear nucleus, of China star company go bankrupt belongings includes 3 4 car, computer and cash reserve in a bank only three million two hundred and twenty-one thousand two hundred yuan of add up to three million seven hundred and eighteen thousand six hundred yuan, still can't pay off the first arrange a work pay creditor's rights. The free of case experience equity delimits turn with receive go up objectively bring about liquidity of Hua Xing company to reduce, assure with experience case creditor's rights cannot come true have direct causal, branch of Jilin of company of Great Wall property makes over formal afterwards to suffer through bad assets obtain assure creditor's rights cannot the basis assures the debt way of the contract such as law, contract law breaks through contract relativity to the 3rd person beyond contract party, namely the medium and small businesses that free receives worth assures company, hold the right. Accordingly, according to this case actual condition, law of applicable tort liability regards the complement that protects property rights and interests as the method, it is necessary; Otherwise, enjoy the creditor of lawful property rights and interests, give through legal route hard relieve, have violate fair justice.
On put together, because medium and small businesses assures,the company cooperates China star company to delimit turn the behavior of case experience equity has fault, the lawful property rights and interests that its free receives branch of Jilin of company of property of Great Wall of enroach on of case experience equity, according to " civil code general rule " the 106th " citizen, legal person because of country of fault enroach on, collective belongings, of belongings of enroach on other, person, ought to assume civil responsibility " regulation, medium and small businesses assures the company ought to assume civil responsibility.
Branch of Jilin of company of property of 3. Great Wall assures to medium and small businesses company position right does not disobey creditor's rights fairness to accept countervail principle. Branch of Jilin of company of Great Wall property suffers oneself let case experience assure since creditor's rights, seek relief way with all possible means all the time. The first, branch of Jilin of company of Great Wall property saves national endowment company to sue in Jilin advocate debtor and China star company are fulfilled assure responsibility holds the right in one case, astral company enters Dan Yinhua go bankrupt program, this case assures to China star company only creditor's rights gives affirm, did not sentence Ling Huaxing company to fulfill assure obligation. The 2nd, branch of Jilin of company of Great Wall property is entered in China star company go bankrupt after the program, declare creditor's rights actively, but because oneself reason was not labelled to go bankrupt,be not creditor, its intent the effort that through going bankrupt the program relieves not if really. The 3rd, branch of Jilin of company of Great Wall property is in almost suffer let case experience assure creditor's rights while, also delimit with respect to free of case experience equity turn behavior exercise creditor cancel counterpoises, but because of this case classics the supreme court 2 careful and when substance of put on record of court of new and high district tries You Jilin, be apart from China star company to go bankrupt the program is terminative more than two years, case experience equity already cannot be increased to allocate, yi Weiguo. On put together, branch of Jilin of company of Great Wall property mentions lawsuit of this case belongings tort, the department relieves a way because of the right already primary end, its are not idle to go bankrupt at advocating contract right or avoid program in order to go after individual pay off preferential perhaps suffer countervail. Medium and small businesses assures the company suffers countervail individually about the common creditor's rights of branch of Jilin of company of Great Wall property, enroach on the view of the property rights and interests of other loan of Hua Xing company, cannot hold water.
(3) first trial adjudicates medium and small businesses assures the company assumes basis of responsibility of implicative pay off to be not worth
This case maintains medium and small businesses to assure hard company and China star company form collective tort. " civil code general rule " the 130th regulation, 2 people above is collective tort causes other to damage, ought to assume joint liability. On November 18, 2008, jilin city state endowment appoint Xiang Jilin saves national endowment appoint refer " about limited company of group of electron of Jilin Hua Xing free of state-owned legal person share delimits into Jilin city credence of medium and small businesses assures the ask for instructions of the company " carry bright, case experience equity delimits turning is to be " enhance medium and small businesses to assure further the actual strength of the company, for Jilin city development of medium and small businesses provides financing platform " , the free of equity of reason case experience delimits turn have state-owned company to change make background, and be finish after approval, medium and small businesses assures the company serves as state-owned and contributive the company that create accepts case experience equity, put in certain passivity, do not have what encroach other property rights and interests jointly with contact of meaning of China star company is subjective and intended, branch of Jilin of company of Great Wall property did not refer sufficient evidence to prove China star company and medium and small businesses assure the company belongs to collective tort, reason original trial makes medium and small businesses assures the company assumes joint liability undeserved, this academy gives correct.
(4) medium and small businesses assures company promise carries corresponding liability to pay compensation
January 2009, case experience equity is delimited by free of China star company turn to medium and small businesses to assure company, it is OK that right now creditor China Oriental asset manages company Changchun agency, Jilin to save national endowment company to go up objectively gross assets of company of Hua Xing of close attention debtor changes and did not discover afore-mentioned circumstances. Afore-mentioned facts all happen at branch of Jilin of company of Great Wall property to suffer let case experience assure before creditor's rights. The pay off ability of debtor, creditor is right the know the inside story of right flaw, hold wait for a circumstance, can produce an effect to the implementation of creditor's rights. Branch of Jilin of company of Great Wall property serves as the legal entity that is engaged in technically undesirable creditor's rights is bought and dealing with, be checked to buying the implementation risk of the content creditor's rights of mark to ought to have major and judge ability. The act that Chinese Oriental asset administers company Changchun agency, Jilin to save national endowment company is brought about ever since case experience assures the difficulty that creditor's rights realizes and risk are increased, also have fault, its law consequence should be assumed by branch of Jilin of company of property of Great Wall of creditor's rights alienee. " civil code general rule " the 131st regulation, "The victim also has fault to harm happening, can reduce the civil liability of enroach on person. " branch of Jilin of company of Great Wall property must not assure in medium and small businesses company free receives the position inside equity limits total loss. In addition, still assure considering medium and small businesses the company fulfils partner obligation after receiving case experience equity, and medium and small businesses assures the company receives case experience equity to have the factor such as certain passivity, this academy drinks decide its to receive case experience equity in free corresponding liability to pay compensation is assumed inside the limits of 80% .
Request of lawsuit of branch of Jilin of company of Great Wall property assures for medium and small businesses the company assumes joint liability, medium and small businesses assures company appeal advocates its should not assume civil responsibility, this academy thinks first instance adjudicates medium and small businesses assures the company assumes joint liability undeserved. All be the kind that assumes tort responsibility in view of joint liability and liability to pay compensation, in do not disobey the premise with this record qualitative issue to fall, according to principle of be convenient to both, this academy gives lawfully change the original sentence.
