Companies borrow money, but employees take the blame?

2022-06-30 0 By

The enterprise borrows 10 million yuan in the name of the employee, and is sued to the court. The court ordered the employee to bear the repayment responsibility.Facing the seizure of their homes, the employees applied to the procuratorate for supervision.Procuratorial organs start civil procuratorial integration handling case mechanism, launched a supervision relay……On January 18, 2022, shandong binzhou city five private lending, the procuratorate interests according to law, in shandong province of shandong province high court adopted the procuratorial organs of the protest, as reimbursement subject should be borrowing enterprise, retrial commuted 5 employees called enterprise “back pan” does not assume legal responsibility, effectively safeguard the legitimate rights and interests of the five employees.”You’re not a manager. You’re not a shareholder. What are you going to sign?Now the court seized our house, how to live in the future!”In the face of his wife’s blame, Zhang Weidong heart unspeakable pain: at that time was the company leaders let him sign, how can he refuse?Zhang Weidong is an ordinary employee of Shandong Zouping Limin Food Company (hereinafter referred to as limin Company).Limin was originally established to settle laid-off workers. After years of operation, limin later became a leading enterprise in the local corn deep processing industry.Li Cheng, the actual controller of the company, as a leading figure in the industry, is highly respected in the company. Although he has retired from his post, he is used to listening to his opinions on all matters of the company.In October 2014, Limin company encountered a financial crisis. A bank loan of 20 million yuan was not repaid when it was due.Once the loan is overdue, the company will go on the enterprise credit system, other banks will also come to withdraw the loan, the company may collapse.In distress, Mr. Li turned to xinxing, the company’s partner.Xinxing group was also the indirect guarantor of the bank loan. Of course, they could not sit idly by, so they asked the group’s small loan company to contact Li Cheng and discuss repayment countermeasures.The small loan company said it agreed to lend limin 20 million yuan to temporarily help the company pay off its bank debts and turn “public loans” into “private loans.”At the same time, small loan companies also said that a single subject has a limited amount of borrowing, which needs to be divided into multiple tranches to achieve the target.Li cheng immediately decided to borrow 5 million yuan in the name of his two subsidiaries, and then hire five employees from the company to lend out the remaining 10 million yuan, with Limin responsible for repayment and guarantee.After careful selection, Zhang Weidong and other five employees and their spouses were called to the financial office to sign the contract.”Just sign and don’t ask any questions,” the accountants told them.Zhang found that the five employees selected were all Close associates of Li Cheng.The leader thinks of himself in difficult times and feels a little honored that he can contribute to the company in this way.After the storm, the company’s situation did not fundamentally improve.Affected by the international situation and the epidemic, the price of corn products fluctuates violently.Most of the company is laid-off workers, the management level has been unable to keep up, at this time, problems one by one to show.Xinxing appealed to the court after it failed to receive the payment after sending three consecutive collection notices.Lawsuit, Li Cheng company said borrowing and polity are borrowed company, has nothing to do with five employees, in accordance with the contract relativity principle, the original court made a ruling according to the provisions of the loan contract in writing, five people and their spouses are borrowers, such as the zhang wd 10 million yuan of principal and interest repayment responsibility, beneficial to the company bear joint liability guarantee.Limin proposed to pay in installments, but Xinxing group rejected the proposal on the grounds that the cycle was too long and the company’s assets were not easy to be realized. Xinxing applied to the court to start the enforcement procedure and sealed up the properties of Zhang Weidong and other five people.At the beginning for the interests of the company, with a cavity of enthusiasm signed the top name loan contract, has become a ruthless “investment”;Clearly his identity is just a worker, now has become a contradiction between the two companies “scapegoat”.In all desperation, Zhang Weidong and others to binzhou City procuratorate application for supervision.Three-level supervision procuratorate relay zouping city prosecutor’s procuratorate handling the case into the plant to carry out investigation to verify binzhou city’s procuratorate prosecutors joint meeting study case, the case shall, according to the shandong province binzhou city’s procuratorate’s procuratorate civil procuratorial integration, the requirements of the relevant working mechanism of binzhou ShiYuan joint handling group synergy and grass-roots court to deal with the case,And report to the Sixth Procuratorial Department of Shandong Procuratorate on the application of law.Considering that the property involved has entered the execution process, in order to avoid irreparable losses, the prosecutor took the initiative to speed up the progress of the case, through the way of work relay as much as possible to strive for time.”The difficulty of the case lies in investigation and verification.””The biggest problem is how to prove that Xinxing knew Limin was the borrower, given xinxing’s denial,” said Wang Huifang, director of the sixth prosecution Department of binzhou People’s Procuratorate.We have decided to start from the interest chain of the case, draw up a verification list and look for key evidence.”According to the provisions of article 402 of the contract law, such as zhang wd people accepting the entrustment of beneficial to the company in the name of the individual and XinXing group signed a contract for loan of money, such as if knowing that zhang wd XinXing group relationship between man and beneficial to the company’s agent, then the contract is direct company with XinXing constraint polity, zhang wd and others will not bear responsibility – this should be the case of the main breakthrough direction.Zouping Procuratorate gave full play to the local advantages of being familiar with both people and land at the grass-roots level, and investigated and inquired the relevant leaders of Limin Company, Xinxing Group and the former Zouping financial Office.Through the verification and comparison of the money flow, prosecutors have a new discovery — it turned out that the loan was not directly issued to Limin Company, nor to Zhang Weidong and others, but to the supervision account of the former Zouping financial office.The financial Services Office put Limin and Xinxing under supervision after discovering risks in the loans, requiring the two companies to negotiate repayment and guarantee issues as soon as possible to avoid systemic risks.After the relevant contract was signed, Xinxing Group transferred the 20 million yuan loan to the financial office supervision account, and the financial office paid off the bank loan on behalf of xinxing group.According to the bank transaction details of the loan, although the total amount of the transfer from Xinxing Group to the supervision account of the financial Office is consistent with the loan, each amount does not correspond to the amount of the loan contract, and the amount and number of the loan are not distinguished.If it is indeed lent to Zhang Weidong and other 5 employees, from the flow of funds and the amount of loan correspondence, are not in line with common sense.Xinxing later argued that the loan was granted on the basis of trust in the repayment ability of the five employees. However, as ordinary employees, The monthly income of Zhang Weidong and others was far from enough to repay the loan interest, and they had no other assets except a house they lived in.It is also against common sense for Xinxing to issue large amounts of loans without checking and verifying employees’ household income, bank statements and assets.Based on the evidence, prosecutors concluded that limin, not the five employees, was the real borrower.On the basis of full investigation and demonstration, binzhou Procuratorate submitted the five cases to Shandong Procuratorate for protest.The Sixth Procuratorial Department of Shandong Procuratorate guided binzhou Procuratorate to further supplement the evidence and hold public hearings on the case to fully protect the right of all parties to cross-examine and express their opinions.Shandong Procuratorate held a public hearing on the case. “The situation of enterprises borrowing money in the name of employees occurs frequently, which not only overdraws the credibility of enterprises, but also evaded financial supervision and infringed on the interests of employees. It should be regulated in a timely manner.Prosecutors should not only strengthen supervision over such cases, but also lead social consensus to optimize the business environment.”Ma Bo, NPC deputy and operation department manager of Jinan Branch of China Unicom, said at the hearing.On January 18, after the five cases were protested by the Procuratorate of Shandong Province, the High Court of Shandong Province adopted the protest opinion of the procuratorial organ and determined that limin Company should be the repayment subject. In the retrial, the five people including Zhang Weidong and their spouses were not liable, effectively safeguarding the legitimate rights and interests of the five employees.”In view of the problems of the enterprises involved in the case, such as lack of system, ineffective supervision, non-standard practice and operation, the court will provide legal preaching and legal advice to the door, act as the ‘old uncle’ of enterprises, and help enterprises improve the ability to resist and prevent risks.”Zouping Procurator-general Wen Jian on the direction of the next step to make deployment.Li Cheng, the actual controller of Limin Company, said that he would make great efforts to improve the management level and bring the enterprise production into the track of rule of law.A prosecutor in charge of a case in Shandong Province said, We often say ‘in black and white’ and ‘who signs who is responsible’, which usually refers to confirming the subject of responsibility based on the relativity principle of a contract.But in the case of the top of borrowing, the staff to accept the company commissioned and XinXing group signed a contract for loan of money, knowing the clientage XinXing group exists, and employees do not have any interests in the contract, should break through the contract relativity principle, borrowing relationship established between the company and XinXing group in polity, employees not the borrower.This is also in line with the spirit of civil law.”Integrated handling of cases helps improve the quality and efficiency of procuratorial integration, which is an important guarantee for procuratorial organs to effectively exercise procuratorial power and an important starting point to promote high-quality development of procuratorial work in the new era.In recent years, the Leading party group of the Supreme People’s Procuratorate has repeatedly emphasized the importance of promoting the construction of procuratorial integration mechanism, which has realistic urgency and importance in civil procuratorial work.”Integrated case handling is an important means to solve structural contradictions.”Wang Huifang told reporters that binzhou procuratorial organs, for example, have seen an average annual increase of 64.38 percent in the number of supervised civil litigation cases since 2018.In 2021, 349 such cases were accepted, of which 66.76 percent were handled by the Municipal People’s Procuratorate, showing prominent structural problems in the “inverted triangle”.To this end, Binzhou Procuratorate has established an integrated working mechanism of civil litigation supervision. From the aspects of integrated case handling organization, integrated case management, integrated case handling and integrated guarantee mechanism, it has established an integrated working mechanism with the city Procuratorate as the leading and the county and district procuratorates as the backbone, overall planning and upper and lower unity.The upper and lower courtyard longitudinal unblocked and different lines between the horizontal unblocked.According to statistics, in 2021, binzhou procuratorial organs handled 160 cases of civil supervision through the integrated mechanism, and the completion rate of examination within three months was 100%, among which 11 cases were retried and procuratorial, 18 cases were proposed and appealed, and the acceptance rate of protest was 100%, both reaching new highs in history.In the past three years, six civil supervision cases have been rated as typical cases in Shandong Province, and both the quality and efficiency of handling cases have been improved.Yang Hongguang, director of the sixth Procuratorial Department of Shandong Procuratorate, told reporters: “Integrated case handling helps to aggregate procuratorial resources, form joint supervision force and improve supervision efficiency, so as to concentrate superior strength in case handling, promote business improvement and team exercise.At the end of 2021, the Provincial People’s Court formulated the unified Working Methods of Integrated Civil Procuratorial Handling (Trial), which provides clearer guidance for integrated case handling in Shandong Province.Under the new case handling mode, provincial and municipal courts should strengthen overall planning, do a good job in handling, participating in handling, supervising the handling of important cases, strictly standardize the process of transferring and handing over cases, and prevent the occurrence of ‘just handing over’.”At present, it often happens that some enterprises borrow money in the name of employees or affiliated enterprises when they encounter obstacles in direct financing.This wrong practice of “policies at the top and countermeasures at the bottom” is very risky. Once disputes occur, it may cause serious infringement on the interests of employees.The procuratorate of Shandong Province, city and county insisted on supervising these five cases together by means of protest, and widely informed the society by means of procuratorial hearing, hoping to arouse the high vigilance of enterprises and relevant departments.Overall, the successful appeals of these five cases reflect the following characteristics.First, pay attention to the supervision from the judicial concept level, realize the unity of the “three effects”.From the perspective of political effect, the procuratorial organ effectively safeguarded the legitimate rights and interests of the five employees, and the result of handling the case was in line with the simple values of “head of grievances and owner of debts” in the hearts of the people, upholding the objective and just position of the legal supervision organ, and reflecting the people-oriented judicial concept.From the point of view of social effect, the protest opinion is helpful for private enterprises to return to the original intention of legal operation, make up the “required course” of enterprise compliance, and has a certain warning significance.In terms of the legal effect, the prosecutor applied the legal rules breaking the principle of relativity of contract very prudently, reflecting the spirit of equal protection in the civil Code, and building a balance between abiding by contract and protecting interests.Second, make full use of the integrated case handling mechanism to improve the supervision effect.In the process of handling this case, the three levels of procuratorate of Shandong Province, city and county adhere to the consciousness of “one game of chess”, through launching the integrated case handling mechanism, give play to their respective advantages, and achieve the effect of “upper and lower unity, horizontal coordination, internal integration and overall planning”.Grassroots procuratorates take advantage of geographical convenience to carry out investigations and verification effectively.The municipal procuratorate plays the main role in accurate analysis, judgment and appeal;Provincial procuratorates grasped the direction of handling cases and consolidated the results of supervision through public hearings.Under the relay supervision of the three levels of procuratorate, the supervision of the case has realized the high quality and efficiency of handling the case.(Mou Wenjie, Deputy Director of the Fourth Procuratorial Department of Zouping People’s Procuratorate, Shandong Province) (Guo Shuhe, Xie Chan, Procuratorial Daily)