True case: Never drop charges in a civil trial

2022-04-30 0 By

The following is a real case, published in rednet, excerpted in the following, and do case analysis practice, my level is limited, if there are mistakes, please correct, because there is no legal assembly query system, it did not cite the law, only do legal analysis.Plaintiff A proposes A lawsuit request: 1. Request an order to rescind the Vehicle Transfer Agreement signed between the original and the defendant;2. The defendant returns the transfer fee of 98,000 YUAN;3. The defendant compensates the plaintiff for the loss of 11,118 YUAN;4. The legal costs of this case shall be borne by the defendant.Facts and Reasons:The original and the defendant signed the Vehicle Transfer Agreement on November 13, 2019. According to the agreement, the defendant mortgages his white car with the license plate of Yu 88888 and the vehicle brand of Jaguar to the plaintiff, the mortgage price is 98,000 YUAN. After the contract is signed, the plaintiff pays the mortgage to the defendant through bank transfer and wechat Pay.However, the mortgage car was driven away by C Co., Ltd. on January 2, 2020 without informing the plaintiff, and informed that the actual mortgagee of the car was C Co., LTD.Plaintiff is to safeguard oneself lawful rights and interests, reason appeal to court.(Fact 1) Defendant B argues that: 1. I have nothing to do with this case, and the plaintiff and I signed the Vehicle Transfer Agreement. According to article 4 of the Agreement, it states that the economic dispute has nothing to do with me after the agreement is signed.2. In the fact part, the car is indeed a mortgaged car. I got this car from Chongqing.(Fact 2) According to Fact 1, Fact 2:1. Defendant B has creditor’s debt relationship with legal person C. Legal person C is the pledgor and pledges the production to creditor B.2. After the pledge is established, B has the right of possession of the movable property, and the ownership belongs to C. Only when the debt cannot be paid off at the expiration of the debt, B can have priority in the compensation of the movable property and sell off the debt, and the part of the price exceeding the debt belongs to C.3. Defendant B mortgaged the chattel with the right of pledge to plaintiff A, which is A pledge transfer. There are two cases: A pledge transfer without THE consent of C is A pledge transfer with responsibility, and B has no right to dispose of it.B, after C agrees to transfer, it belongs to commitment transfer, and B has the right to dispose of.4. To sum up, in the transfer of liability, as the assignee of the third party, A is an informed and unbona fide third party, and will be liable for damages caused to the movable property regardless of fault, and there is A risk.If B is a third party in good faith without knowledge, he shall be liable for compensation only if he is at fault, and B shall be liable for compensation no matter whether he is at fault or not.In the pledge transfer, A is liable for damages with or without fault, and there are risks.If B does not know, he is a third party in good faith. If B is at fault, he shall be liable for compensation. If B is at fault, he shall not be liable for compensation.5. A has creditor’s right against B, taking the vehicle as the subject matter of mortgage. However, defendant B said that “the plaintiff needs to return the car to me”.6. Whether C agrees or not, the contract between A and B is legal, valid and established, and the possession right of the movable property is transferred to A. According to the principle of relativity of the contract, C cannot ask A to return the movable property after paying off the debt, but can only ask B to return the movable property.In terms of pledge, C cannot pay off the debts, and B cannot apply to the court for the sale and auction of the vehicles pledged twice, but can only pay off the debts to A first, because B is responsible for losing the possession of the pledge right.7. In summary, B argues that “nothing to do with himself” violates objective facts, A has the right to possess the chattel, and C has the right to drive away the vehicle without authorization.B argues that “non-responsibility contained in the agreement” is illegal, and the transfer Agreement is suspected to have liquid transfer clause, which is not supported by the law. If there is such clause, it is invalid.There is a causal relationship between the case dispute and B, and B cannot be exempted from liability.According to the above to adopt the effective evidence and the plaintiff’s statement in court, we confirm as follows: on November 13, 2019, the original, the defendant vehicle transferred agreement has been signed, agreement, the defendant will license for chongqing 88888 vehicles transferred to party b, transferred the price is 98000 yuan, the defendant can assure the vehicle shall enjoy the right of pledge, shall enjoy the right of transferred.After the contract was signed, the plaintiff paid 98,000 yuan of mortgage to the defendant through bank transfer and wechat pay. However, the car involved in the case was driven away by C Co., Ltd. on January 2, 2020 without informing the plaintiff, and the company was informed that the actual mortgagee of the car was C Co., Ltd.The plaintiff also knew during the transaction that the vehicle was a mortgaged vehicle.The defendant and the original failed to negotiate, so the lawsuit to the court.(Fact 3) Fact 3:1. Due to reasons not attributable to the pledgee (C drives away the pledged vehicle without authorization), A loses possession of the subject matter. Although A loses possession of the subject matter, he can claim for return according to the right on the subject matter, and the pledge right is still not eliminated.2. If A sues B, it can claim the return of the property right or realize the creditor’s right, which is reasonable.3. Due to B’s fundamental breach of the contract, the creditor’s rights and debts could not be realized. Therefore, the contract should be terminated by judgment, requiring defendant B to pay off A’s debts of 98,000 YUAN.4. Appendix (The Court’s First-instance judgment) After plaintiff A paid the transfer fee and occupied the vehicle involved in the case, the car was taken away by C Co., LTD. Therefore, the plaintiff, unable to realize the purpose of the contract involved in the case, requested to rescind the contract, which is in accordance with the provisions of Article 94 of the Contract Law of the People’s Republic of China, and the court supported it in accordance with the law.As for the failure to return the vehicles involved in the case, it is not the fault of the plaintiff, and the defendant has not provided evidence to prove that he has the right to deal with the vehicles involved, and the defendant’s defense claim of requesting the plaintiff to return the transfer money after returning the vehicles is not accepted according to law. Therefore, the court supports the plaintiff’s claim of returning the transfer money of 98,000 yuan according to law.As for the plaintiff’s claim for the defendant to compensate for the loss of 11,118 YUAN, the plaintiff also knew that the car was a mortgaged-car in the transaction process, and it was also at fault and should bear certain transaction risks, so the claim was not supported in accordance with the law.During the hearing of the court, appellee A applied to the court for withdrawal of the prosecution on November 25, 2020 on the grounds of self-reconciliation between the two parties, and appellee B agreed.The court holds that appellee A’s request to withdraw the prosecution during the trial of this case, with the consent of appellee B, does not harm the interests of the state, the public interest or the legitimate rights and interests of others.This court grants permission.In accordance with Item 5, Paragraph 1, Article 154 of the Civil Procedure Law of the People’s Republic of China and Article 338 of the Interpretation of the Supreme People’s Court on Application, the ruling is as follows: 1. The civil judgment no. XXXX of the People’s Court of X City (2020) X0981 at the beginning of the Republic of China is revoked;A is allowed to withdraw the suit.This ruling is final.(Fact 4) Fact 4:1. After the judgment of the first instance, B refuses to appeal to the People’s Court and starts the second civil instance.2. In the second instance, defendant B of the first instance became the appellant plaintiff, and plaintiff A of the first instance became the appellant defendant. A withdrew the lawsuit on the grounds of reconciliation between the two parties.According to the civil procedure law, the litigant in the second trial procedure, withdraw the prosecution, will withdraw the judgment of the first instance at the same time, and can not be sued again, the court will be rejected by “non bis in idem” prosecution!3. In the second instance, the plaintiff withdraws his appeal, which requires the consent of the other party and the consent of the court. The judgment of the first instance takes effect.After the withdrawal of prosecution, party A lost all 98,000 yuan and his car, so he hurried to the court to Sue. Due to the withdrawal of prosecution in the second instance, the judgment of the first instance was also revoked, and the request for prosecution was rejected due to the principle of non bis in idem.So I feel cheated when I ask for help online.(Fact 5) 1, the parties to the principle of autonomy, the court ruled that the rejection of the lawsuit is legal.2. Party A added C as A co-defendant. Due to the lack of relativity of the contract, C can only participate in the lawsuit as A third party without independent request to assist the defendant.3. Relief channels: If A feels cheated and withdraws the prosecution, resulting in the loss of both car and money, there are two relief channels as follows.1) Apply to the higher procuratorate for supervision, decide to protest within 3 months, and start the supervision trial procedure.The court shall start the procedure within 30 days after the appeal is lodged.2) Within 6 months from the date when the party knows or should know, it applies to the higher court for trial supervision procedure and starts the retrial procedure, which shall be initiated in accordance with the original first instance.Note that retrial is not an independent program, the ultimate purpose is to correct the program error, start very slowly, do not use until absolutely necessary.Therefore, in the civil lawsuit, to make clear the principle of withdrawal, if it is to withdraw the prosecution, even the first trial judgment will be revoked, back to the original state of no prosecution, and can not be sued again, if it is to withdraw the appeal, is the first trial judgment into effect.