Below the condition that did not impose so that belongings shares a person to agree, the part shares person acceptance to be offerred in order to share belongings for other assure, the department has no right punish. This acceptance damaged the legitimate rights and interests of other and mutual person, the others shares a person to did not grant to this below the circumstance of admit posthumously, its have direct interests with this case, have litigant interest, have the right active appeal court affirms those who affect its rights and interests to assure the clause is invalid.
Summary of details of a case:1, Gu Yancheng (lender) with Ma Xiaoqin (borrower) reach Zhao Yu section (guarantor) sign " loan contract " medium " makes sure clausal " part agrees: "Sponsorial individual and domestic worth are assumed assure responsibility " jointly.
2, Zhao jade division and husband and wife of department of Feng spring flower concern, feng spring flower was not in afore-mentioned " loan contract " on sign, and the action that does not approve Zhao jade inflict clearly to share belongings to assure external.
3, Feng spring flower accuses to the court the request affirms loan contract assures the clause is invalid, shaanxi saves ruling of senior people court to reject Feng spring flower to sue.
4, Feng spring flower refuses to obey, mention to highest courtyard rehear.
Controversy focus:Whether is Feng spring flower a prosecutor of record comfortable division?
The court thinks:Feng Chun spends this case to sue a view to affirm to make sure the clause is invalid in the contract, the department closes right increase to safeguard its oneself. Shaanxi province Yan'an is arbitral committee (2015) Yan Zhong dismisses a word book of the 030th adjudication adjudicates on only experience of counterproposal of Zhao Yu division " loan contract " leasehold debt is assumed assure responsibility jointly, content of this adjudication main body of a court verdict is right " loan contract " the effectiveness of clause of card of middleman and guarantor was not made maintain, actual also cannot dilate comes be not arbitral party. Reason should arbitrate do not belong to with this case repeat processing. Zhao jade division and husband and wife of department of Feng spring flower concern, case experience " loan contract " the personal property that makes sure the clause involves Zhao Yu division not only, more important is to involve the husband and wife of Zhao jade division and Feng spring flower common property, during because be in,spouse concern puts add, unless both sides of husband and wife has,part the agreement of belongings, otherwise husband or wife the belongings that income shares for husband and wife, and to be shared jointly is not to press a portion to share, gui Fu or wife the personal property of one party actually very few. Change character, what can rise to assure action truly is husband and wife common property, accordingly, should make sure the clause affects the property interest that spends to Feng Chun directly. Feng spring flower shows not to grant to clause of card of contract content middleman and guarantor admit posthumously, its have direct interests with this case, have litigant interest.
According to " code of civil law of People's Republic of China " the 119th the first regulation, feng spring flower fastens a prosecutor of record comfortable division, original ruling thinks Feng spring flower does not possess qualification of accuser main body, the ruling rejects what Feng Chun spends to sue, belong to a mistake truly, should grant to correct.
Case index:(2018) top magic art civilian again 209
Relevant law:" code of civil law "
The 119th sues must accord with following condition:
(one) accuser is the citizen that has direct interests with this case, legal person and other organization;
(2) have clear respondent;
(3) have specific litigant request and fact, reason;
(4) the limits that belongs to people court to hear civil suit and suffer courtyard of civil code telling a person administer.
Solid Wu analyses:Think to make sure the clause affects its rights and interests about party, mention to acknowledge invalid suit to assuring a clause, the issue that whether ought to the court hear, there is different point of view in solid Wu. A few viewpoint thinks: Party appeal affirms behavior is invalid, ought to be its rights and interests got the reality of this behavior is damaged, just accord with the " that the code of civil law sets the 191st times and case to have the requirement of direct interests " . Because assure to have probable model, make sure the clause need not be caused like that assure responsibility, party appeals to authority to assuring effectiveness doubt of the clause to need not be enjoyed like that. Court of the existence in solid Wu with party main body unwell case, do not enjoy the benefit that appeal to for, the ruling overrules prosecution court decision.
Article cite is highest courtyard court decision thinks to deny afore-mentioned notions. Author approve of is highest the judicatory spirit that this plants the courtyard to respect party adequately to appeal to authority, recommend this legal precedent.
