I Shagang Company v. Tian Kai Company (opposing the implementation of the distribution plan)
(a) the basic facts of the case
On June 20 10/1day, Songjiang court made a civil judgment of (20 10) No.2 (Shang) Zi Chu No.275, and Rongcheng Company should pay the payment for goods and the corresponding interest loss to Shagang Company. After the judgment of case No.275 came into effect, it entered the execution procedure, and the execution was terminated because the property clues available for execution by Rongcheng Company were not verified. After Rongcheng Company was cancelled, Shagang Company applied to resume execution, and Songjiang Court ruled to resume execution. Tian Kai Company, a shareholder of Rongcheng Company, and seven natural person shareholders were added as executors, and they were responsible for Shagang Company within the scope of their respective false contributions, deducting 696,505.68 yuan from Tian Kai Company and four natural person shareholders (of which Tian Kai Company contributed less than 450,000 yuan). On July 20 18, our hospital accepted two lawsuits filed by Tian Kai company: (20 12) Song Miner (Shang) Zi ChuNo. 1436 and (20 12) Song Minsan (Min).
2065438+On February 27th, 2003, Shagang Company received the Distribution Plan of Additional Shareholders' Execution Funds of Rongcheng Company delivered by the Executive Board of Songjiang Court. Based on the above three situations, the distribution schedule determines to repay the execution amount of 696,505.68 yuan in advance, and distribute the rest according to the same proportion of 365,438+0.825%, and then distribute it later. Shagang Company later submitted an objection to the implementation of the distribution plan to Songjiang Court, arguing that Tian Kai Company could not participate in the distribution of the withheld funds because of its inadequate capital contribution, and refused to admit that the distribution plan did not include double interest on overdue payment in the implementation target. Tian Kai Company objected to Shagang Company's objection to the above distribution plan, and demanded that the distribution be carried out according to the original plan. Songjiang court informed Shagang Company of this letter. 20 13 On April 27th, Songjiang Court accepted the lawsuit filed by the plaintiff Shagang Company.
It was also found that the judgment documents of the above three cases all confirmed the registered capital amount of Rongcheng Company and the paid-in amount of shareholders.
(II) Judgment result
The court of first instance held that this case was an objection to the implementation of the distribution plan. In this case, the original defendant and the defendant have two controversial points around the relevant implementation distribution plan. One is whether Tian Kai Company can distribute this part of the execution funds with Shagang Company on the grounds that Tian Kai Company has creditor's rights to the company because of its false capital contribution being deducted by the court; Second, whether the subject matter of execution should include double payment of debt interest during the period of delay in performance. Regarding the first focus of controversy, the Company Law clearly stipulates that the shareholders of a limited liability company shall be liable to the company to the extent of their subscribed capital contribution. The 450,000 yuan deducted by Tian Kai Company due to false capital contribution should first supplement the debt assets of Rongcheng Company and pay off to the creditor and plaintiff Shagang Company outside the company. Tian Kai Company claims to participate in the distribution of its own withheld funds because it also has creditor's rights to Rongcheng Company, which is unfair to the external creditors of the company, and also goes against the legal principle that the shareholders of the company are liable to the company with their capital contribution. Of the 696,505.68 yuan, the plaintiff should pay 450,000 yuan first, and the rest will be distributed in proportion. Regarding the second focus of dispute, the relevant civil judgments in cases No.275, 1436 and 2084 all ruled that if the debtor fails to perform the monetary debt within the specified period, it must pay double the interest on the debt during the delayed period. Therefore, the plaintiff Shagang Company's claim that the subject matter of execution should include double payment of interest during the period of delayed performance of debts was adopted. Both the original defendant and the defendant made clear the calculation method of double interest during the delay in performance, and the plaintiff Shagang Company's claim of winning the implementation of the distribution plan was basically established, and the court adjusted it according to law. After the judgment of the first instance, the parties did not appeal, and the judgment of the first instance took effect.
(3) Typical significance
The main dispute between the parties in this case about the implementation of the distribution plan lies in whether the shareholders who make false capital contributions can distribute the above-mentioned funds with the external creditors who have creditor's rights to the company after assuming the responsibility of shareholders' false capital contributions and deducting the money. In this regard, China's laws do not clearly stipulate that the principle of fair subordination established in the deep stone case in American history has certain reference significance for the handling of this case. In the trial practice of this kind of cases, if the shareholders in question are allowed to be in the same position as the external creditors in terms of their claims to the company, it will not only lead to unfair results to the external creditors of the company, but also run counter to the legal responsibilities stipulated by the Company Law for the shareholders who make false capital contributions. Therefore, this case finally negates the viewpoint that false investors should compensate equally, which has a good social effect and has a good reference significance for the handling of similar cases.
Two, Zhang Fengchun and Tai 'an Central Hospital medical service contract dispute case.
(a) the basic facts of the case
(II) Judgment result
The People's Court of Tai 'an District of Tai 'an City held that the plaintiff was hospitalized at the defendant's place, and a medical service contract relationship was formed between the plaintiff and the defendant. The defendant should use drugs according to the plaintiff's condition and provide medical services to the plaintiff in the right way and means. According to the appraisal opinion and civil judgment of Tai 'an Dongyue Judicial Appraisal Institute, it is enough to conclude that the drug sodium ozagrel used by plaintiff Zhang Fengchun during his hospitalization due to traffic accident is unreasonable. The indication of sodium ozagrel is to treat acute thrombotic cerebral infarction and motor disorders related to cerebral infarction. The plaintiff said that he had no history of acute thrombotic cerebral infarction and related diseases, and there was no record of the plaintiff suffering from or having suffered from the above diseases in the current and past medical records issued by the defendant. Therefore, the defendant Tai 'an Central Hospital failed to provide reasonable and appropriate medical services according to the plaintiff's condition, and should compensate the plaintiff for the losses caused by the defendant's unreasonable medication during the treatment. The court ruled that Tai 'an Central Hospital compensated the plaintiff Zhang Fengchun for the economic loss of 7750.40 yuan. The defendant has served his sentence.
(3) Typical significance
Medical service contract is a contract to adjust the rights and obligations between medical institutions and patients. At present, the increasing number of medical disputes in China not only affects the psychology of patients and their families, but also increases the psychological pressure of medical staff and reduces the reputation and image of medical units and medical staff in society. In practice, some medical institutions or medical personnel prescribe expensive or unnecessary drugs for patients in pursuit of economic benefits, which increases the financial burden of patients. This case ordered the defendant Tai 'an Central Hospital to compensate the plaintiff for the economic losses caused by unreasonable drug use. This case reminds medical institutions that in the process of providing services for patients, they should adhere to the purpose of "treating patients and saving lives", provide patients with appropriate treatment programs based on necessary and reasonable principles, strengthen communication with patients and their families, fully respect patients' right to know, and build a harmonious doctor-patient relationship.
3. Zhao Chunlian applied for execution of the motor vehicle traffic accident case in Zhang Yuhao.
(a) the basic facts of the case
On July 3 10, 2 1, 2 1 and 4 1, Li had a motor vehicle traffic accident with the person being executed. The accident caused Zhao Chunlian's brain injury, schizophrenia, first-degree disability and loss of litigation ability. Appraised by the traffic control department, Zhang Yuhao took full responsibility for the accident. On March 20 1 1, Lian's husband Li filed a lawsuit in Fengtai District People's Court on his behalf. Beijing Fengtai District People's Court ruled in the first instance that Zhang Yuhao paid Zhao Chunlian's medical expenses, lost time, disability compensation, and hospital food allowance 1.29 million yuan. After the verdict was made, Zhang Yuhao appealed to the Beijing No.2 Intermediate People's Court, which made a civil conciliation statement and ordered Zhang Yuhao to pay Zhao Chunlian various compensations in installments, totaling 900,000 yuan. Zhang Yuhao paid Zhao Chunlian 200,000 yuan on the day when the conciliation statement was made, and then no longer paid the remaining compensation according to the conciliation statement. Therefore, on behalf of Zhao Chunlian, Li applied to the Fengtai District People's Court of Beijing for compulsory execution on July 23rd, 20th/KLOC-0th/2nd, and the court accepted it according to law.
In the process of execution, the court issued a notice of execution in time, and repeatedly summoned the person subjected to execution, Zhang Yuhao. Zhang Yuhao refused to show up and hid his whereabouts. Law enforcement officers repeatedly went to the place where the person subjected to execution lived to look for Zhang Yuhao, but failed to find his whereabouts. The vehicle under the name of Zhang Yuhao has been seized according to law, but the vehicle can't be found. The balance of seven bank accounts under his name is zero or only tens of yuan, and there is no real estate registration information under his name. The case failed to make real progress. Zhao Chunlian, the executor of this case, lost her ability to work and could not take care of herself. The refusal of the person subjected to execution leads to the life of the person subjected to execution being in trouble. In order to safeguard the lawful rights and interests of the executed person, the court intensified its efforts to find clues about the property of the executed person Zhang Yuhao. The judge in charge went to insurance companies, banks and other institutions to inquire about Zhang Yuhao's insurance claim withdrawal and capital flow, and found that Zhang Yuhao collected 654.38 million yuan of commercial third-party liability insurance claims paid by the insurance company before the application for execution after mediation in the second instance, but did not pay it to the person subjected to execution. At the same time, I found that although there is no deposit in his bank account, there is a running record of more than 5,000 yuan per month. After discovering the above situation, the judge in charge immediately contacted the father of Zhang Yuhao, who was executed, and asked Zhang Yuhao to fulfill his obligations as soon as possible. Zhang Yuhao's father claimed that Zhang Yuhao was not in Beijing and he could not perform, but Zhang Yuhao himself still refused to show up. In view of Zhang Yuhao's above-mentioned behavior of transferring property and evading execution, according to the relevant provisions of the law, Beijing Fengtai District People's Court transferred the case to Fengtai Branch of Beijing Public Security Bureau for investigation on 20141kloc-0/8 on suspicion of refusing to execute the judgment or ruling.
(ii) Implementation results
After the Fengtai District People's Court accepted the case, Zhang Yuhao refused to appear in the case, transferred his property and evaded execution, which was suspected to constitute the crime of refusing to execute the judgment or ruling. After the Fengtai District People's Court transferred the evidence clues of the case to the public security organs for investigation, Zhang Yuhao voluntarily paid 65,438+10,000 yuan. After criminal detention, Zhang Yuhao's relatives handed over the remaining 600,000 yuan of execution money to the court, and the case was successfully executed. At the same time, Fengtai Branch of Beijing Public Security Bureau transferred Zhang Yuhao to Fengtai District People's Procuratorate for public prosecution on suspicion of refusing to execute the judgment or ruling. 2065438+On February 4th, 2005, Beijing Fengtai District People's Court sentenced Zhang Yuhao to six months' imprisonment, suspended for one year.
(3) Typical significance
This case is a typical case in which the person subjected to execution refused to carry out his criminal clue and transferred it to the public security organ for criminal responsibility. The amount of the subject matter in this case is relatively large. Considering the performance ability of the person subjected to execution, the conciliation statement of the court of second instance decided that the defendant Zhang Yuhao would perform it by stages. However, the defendant, Zhang Yuhao, did not actively perform his obligations after the mediation came into effect, ignoring the court's judgment and flouting judicial authority. After Zhao Chunlian, the respondent, applied for execution, Zhang Yuhao deliberately concealed his whereabouts and transferred his property to avoid execution, which was obviously subjective and malicious, and led to further damage caused by the respondent's accident, making his family life extremely difficult. After mastering the evidence that the defendant transferred property and evaded execution, the judge asked the person subjected to execution to perform his obligations again and told him that he would bear criminal responsibility if he continued to evade execution, but the person subjected to execution still refused to show up, resisted court execution and ignored judicial authority. In view of the above-mentioned behavior of the person subjected to execution, the judge in charge transferred the evidence and clues of his refusal to execute the effective judgment of the court to the public security organ in accordance with the relevant laws and regulations, and the public security organ filed a case for investigation and investigated his criminal responsibility. Finally, under the deterrent of criminal punishment, the person subjected to execution voluntarily fulfilled his judgment obligation, which also proved from another side that he was actually capable of fulfilling it. Zhang Yuhao, the person subjected to execution, will pay a heavy price for his behavior of damaging judicial authority and obstructing judicial order. By investigating the criminal responsibility of the person subjected to execution, the case safeguarded the legitimate rights and interests of the applicant, defended the dignity of the law and the judiciary, and warned and shocked all the people subjected to execution who intentionally refused to perform their obligations and refused to perform the obligations determined by court judgments and rulings.
Four. Pan applied for execution of the contract for assignment of creditor's rights.
(a) the basic facts of the case
According to the civil judgment made by the Beijing No.2 Intermediate People's Court, the applicant Pan applied to the Tongzhou District People's Court in Beijing for execution, demanding that the executor Beijing Tongtai Construction Branch (hereinafter referred to as Tongtai Construction Branch) pay the payment, liquidated damages and interest on the debt during the delay, totaling 1 15000 yuan. Through relevant inquiries and on-site investigation, the executive court determined that Lutong Tongtai Construction Branch could not fulfill all its debts.
(ii) Implementation results
The People's Court of Tongzhou District of Beijing found through trial that the executed person Lutong Tongtai Construction Branch is a branch of an enterprise legal person and does not have the legal person qualification to bear civil liability independently. Zhongfu Construction Co., Ltd. is an enterprise legal person and the start-up unit of the executed person Lutong Tongtai Construction Branch. When the branch established by Zhongfu Construction Co., Ltd. cannot pay off its debts, the enterprise legal person shall bear the responsibility for paying off its debts. Therefore, it was ruled that Zhongfu Construction Co., Ltd. was added as the executor of this case according to law. Subsequently, the Tongzhou District People's Court of Beijing took a series of enforcement measures against Zhongfu Construction Co., Ltd. and closed the case.
(3) Typical significance
This case is a dispute over the contract of creditor's rights transfer between an individual and a branch company. It is a typical execution case in which the branch company is unable to repay the loan and the head office assumes the responsibility. After adding Zhongfu Construction Co., Ltd. (hereinafter referred to as Zhongfu Construction) as the executor, the enterprise slacked off its debts and evaded execution, which seriously damaged the legitimate rights and interests of the applicant. The executive court has taken a series of enforcement measures against Zhongfu Construction Company. Among them, the system of untrustworthy executors with linkage effect is adopted, and Zhongfu Construction Company is included in the list of untrustworthy executors and announced to the whole society. At the same time, Zhongfu Construction Company is restricted from high consumption, and Zhuang, the legal representative who is directly responsible, is restricted from high consumption and fined. Zhongfu Construction Co., Ltd. was unable to carry out bidding business because the enterprise was included in the list of dishonesty, and the legal representative Zhuang was personally punished. The company took the initiative to negotiate with the applicant Pan, reached a settlement agreement, and fulfilled the relevant debts as agreed.
In the execution of this case, the People's Court of Tongzhou District of Beijing added the person subject to execution according to law, thus safeguarding the rights and interests of the applicant. In the process of execution, the enforcement judge takes various enforcement measures and uses relevant linkage mechanisms to deter the executed person and legal agent and urge them to actively perform their debts. At the same time, related enterprises can realize the legal responsibility of the head office and the legal risks involved from this case, and can regulate the behavior of related enterprises to a certain extent.