Original title of this article: "Litigation Guide | What should I do if I encounter" triangular debt "or" continuous debt repayment "? Come and learn about creditor’s subrogation.
With the development of social economy
As well as the increase in exchanges between economic entities,
In reality,
"triangle debt", "paying off debts", etc.
Complex creditor’s rights and debt relationships abound.
For example, A is the debtor of B,
B is the debtor of c,
Faced with such an embarrassing situation,
Is there really nothing creditors can do?
Yes!
Today I bring you a new term:
right of subrogation
Case review
Let’s meet the parties in this case first.
Company A (Party A)
Company B (Party A)
Company B (Party B)
Company C (Party B)
July 20, 2015
Company A (the entrusting party, Party A) and Company B (the entrusted party, Party B) signed a Part-time Bill Dispatching Service Contract, which stipulated that Party A entrusted Party B with etiquette service for a certain project; If Party A fails to pay the service fee to Party B within the specified time limit, Party B has the right to require Party A to pay liquidated damages according to the benchmark loan interest rate of China People’s Bank for the same period, but the total amount of liquidated damages undertaken by Party A shall not exceed 10% of the unpaid amount.
September 5, 2015
Company B (the entrusting party, Party A) and Company C (the entrusted party, Party B) signed the 2015 Part-time Bill Dispatching Service Contract, which stipulated that Party A entrusted Party B with etiquette service for a certain project. The rest of the contract is basically consistent with the above-mentioned Part-time Dispatching Service Contract.
July-December 2015
The service price of etiquette service provided by Company C for a project is 92,400 yuan.
During the trial, Company A stated that Company B submitted the acceptance of the quantities involved to Company A on December 30, 2015, and the acceptance amount was 92,400 yuan, which was qualified. The amount of part-time dispatch fee involved is really 92,400 yuan. Company A has not paid the part-time dispatch fee to Company C and Company B involved in the case.
Face what they say
What will the court decide?
The Nanhai Court held that the 2015 Part-time Dispatching Service Contract and the Part-time Dispatching Service Contract signed by the parties involved in the case were the true intentions of the parties, and they did not violate the mandatory provisions of laws and administrative regulations. The contracts were legal and valid, and the parties should exercise their rights and perform their obligations as agreed.
According to the agreement of the above two contracts, it can be determined that Company C has been entrusted by Company B to provide etiquette services such as sending orders to Company A for a certain project. Both Company C and Company A confirmed in the trial that the part-time dispatch fee involved was 92,400 yuan.
According to the statement of the parties concerned, the payment of bills owed by Company B to Company C and the payment of bills owed by Company A to Company B all expired at the end of January 2016. Company A argued that because Company B refused to issue invoices, it refused to pay.
court decision
In this regard, the South China Sea Court held that the parties who perform the right of defense first owe each other debts and require the debts of both parties to have a consideration relationship. In this case, the debt of consideration relationship should be that Company A pays the service price, and Company B provides etiquette services such as sending orders for promotion. It is a collateral obligation for Company B to issue tax invoices to Company A, and the collateral obligation of the contract does not constitute a prerequisite for exercising the right of defense of prior performance. Company A cannot exercise the right of defense of prior performance on the grounds that Company B simply violates the collateral obligation of issuing invoices, thus refusing to pay the money.
At present, Company B fails to perform its due debts to Company C, and does not claim its due creditor’s rights from Company A by means of litigation or arbitration, resulting in the failure to realize the due creditor’s rights of Company C, which has caused damage to Company C, and the creditor’s rights are not exclusive to Company B itself. Therefore, Company C requests the South China Sea Court to subrogate the creditor’s rights of Company B in its own name, which is in line with the Supreme People’s Court’s Regulations on Application.
<中华人民共和国合同法>Interpretation of Several Issues (1) The South China Sea Court supported the provisions of Article 11.
The amount owed by company A to company B is not beyond the amount owed by company B to company C, so company C claims that company A should pay off 92,400 yuan by subrogation, which is supported by Nanhai court.
In addition, according to the provisions of Article 20 of the above-mentioned judicial interpretation, after Company A fulfills its repayment obligations to Company C, the relationship between creditor’s rights and debts between Company C and Company B, and between Company B and Company A for the service price of 92,400 yuan will be eliminated.
As for company A, if it pays company C a service fee of 92,400 yuan, and company C or company B fails to invoice it, resulting in economic losses, company A may claim otherwise.
In addition, if the relevant personnel of Company A fail to issue an invoice according to the regulations after paying the corresponding amount, Company A can report it to the tax authorities for handling. As for the interest requested by Company C, whether the subrogation right is established can only be determined after the legal documents of the people’s court take legal effect, so there is no basis for Company C to require the interest to be collected from January 31, 2016; If Company A fails to perform within the performance period determined by legal documents, it shall pay the interest for the delayed performance period according to relevant regulations.
To sum up, in accordance with Article 73 of People’s Republic of China (PRC) Contract Law and the Supreme People’s Court’s Application
<中华人民共和国合同法>Interpretation of Several Issues (1) Articles 11 and 20 and Article 144 of the Civil Procedure Law of People’s Republic of China (PRC), the judgment is as follows:
Company A shall pay 92,400 yuan to Company C within 10 days after this judgment becomes legally effective.
Reject other claims of company C.
Related laws and regulations
Q: Under what circumstances can subrogation be exercised?
People’s Republic of China (PRC) Contract Law
Article 73 Where the debtor’s delay in exercising its due creditor’s rights causes damage to the creditor, the creditor may request the people’s court to subrogate the debtor’s creditor’s rights in its own name, unless the creditor’s rights belong exclusively to the debtor.
The scope of subrogation is limited to the creditor’s rights. The necessary expenses for the creditor to exercise subrogation shall be borne by the debtor.
Q: What are the conditions for exercising subrogation?
Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of People’s Republic of China (PRC) Contract Law (I)
Article 11 A creditor who brings a suit of subrogation in accordance with Article 73 of the Contract Law shall meet the following conditions:
(1) The creditor’s right to the debtor is legal;
(2) The debtor’s delay in exercising its due creditor’s rights has caused damage to the creditor;
(3) The debtor’s creditor’s rights have expired;
(4) The creditor’s rights of the debtor are not exclusive to the debtor.
Other provisions on the exercise of subrogation
Article 13 As stipulated in Article 73 of the Contract Law, "the debtor is slow to exercise its due creditor’s rights, thus causing damage to the creditor" means that the debtor fails to perform its due creditor’s rights, and does not claim the due creditor’s rights with the content of monetary payment from its debtor through litigation or arbitration, resulting in the failure to realize the creditor’s due creditor’s rights.
If the secondary debtor (that is, the debtor’s debtor) does not think that the debtor is lazy in exercising its due creditor’s rights, it shall bear the burden of proof.
Article 18 In a suit of subrogation, the secondary debtor may claim the debtor’s defense from the creditor.
If the debtor raises an objection to the creditor’s right in the subrogation lawsuit, and the objection is established after examination, the people’s court shall rule to reject the creditor’s lawsuit.
Article 20 If the subrogation lawsuit brought by the creditor against the sub-debtor is found to be established after the people’s court hears it, the sub-debtor shall perform the repayment obligation to the creditor, and the corresponding creditor-debtor relationship between the creditor and the debtor and the sub-debtor shall be eliminated.
Article 21 In a suit of subrogation, if the amount requested by the creditor to exercise subrogation exceeds the amount owed by the debtor or exceeds the amount owed by the sub-debtor to the debtor, the people’s court shall not support the excess.
I believe that everyone is concerned about repaying debts.
Have a brand-new understanding.
Do you have any questions about subrogation?
Welcome to leave a message to inform Nan Fajun.
-end-
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