Altay region intermediate people's court
Civil first instance judgment
(20 14) Zhong Minchu Zi No.23
Ilikazak Autonomous Prefecture, Xinjiang Uygur Autonomous Region
Altay region intermediate people's court
civil judgment
(20 14) Zhong Minchu Zi No.23
Plaintiff Li Xiangshun, male,1born on April 24th, 964, Han nationality, self-employed.
The plaintiff Cui Quanfa, male, born in 1946 65438+ 10/3, is a self-employed doctor.
II. Plaintiff * * * is the attorney, lawyer of Guangdong Yuan Law Firm.
Defendant Fuhai Farm Co., Ltd. has its domicile: Village 1, Shibawo, Fuhai County.
Legal Representative Ding, manager of this company.
Defendant Fuhai Prison Coal Mine in Xinjiang Uygur Autonomous Region. Address: Shajihai, Buxair County.
The legal representative is Xin Li, instructor of the coal mine.
The second defendant * * * entrusted agent Guo Pingyu, lawyer of Xinjiang He Lan Law Firm.
The plaintiffs Li Xiangshun and Cui Quanfa, the defendant Fuhai Farm Co., Ltd. (hereinafter referred to as the farm company) and the defendant Fuhai Prison Coal Mine in Xinjiang Uygur Autonomous Region (hereinafter referred to as the prison coal mine), after being accepted by our court, formed a collegiate bench in accordance with the law and held a public hearing. Li Xiangshun, the plaintiff's entrusted agent Lin Anna, Cui Quanfa, Xin Li, the legal representative of the defendant's prison coal mine, and Guo Pingyu, the entrusted agent of the farm company and the prison coal mine, attended the proceedings in court. The case has now been closed.
Plaintiffs Li Xiangshun and Cui Quan sued that in April 20 13, Li Xiangshun and Cui Quanfa reached an oral agreement with the farm company: 1, and Li Xiangshun and Cui Quanfa contracted the production and operation of the prison coal mine belonging to the farm company for 20 15, 12 and 3/kloc. 2. Li Xiangshun and Cui Quan paid a risk guarantee mortgage of 2 million yuan to the farm company to bear all the investment and production costs of the mine and the wages of more than 30 employees in the prison coal mine; 3. Prison coal mines charge management fees according to 25 yuan/ton of raw coal, and Li Xiangshun and Cui Quanfa provide 600 tons of self-use coal for prison coal mines free of charge every year. Li Xiangshun and Cui Quanfa paid RMB 2,000,000.00 Yuan as agreed to the bank account of Farm Company by transfer on April 27th, 20 13. Prison Coal Mine provided Li Xiangshun and Cui Quanfa with Coal Production License, Mining License and other related procedures. In order to fully implement the agreement, Li Xiangshun and Cui Quanfa invested nearly 10 million yuan to purchase fixed assets and equipment needed for coal mine production and operation, and recruited more than 250 professional technicians and workers from the mainland. Since 2065438+June 2003, it has officially started production and operation. In the middle of September 20 13, the farm company unilaterally terminated the agreement on the grounds that "the coal mine was transferred to the outside world with the approval of the superior", which constituted a breach of contract. According to the law, the deposit should be refunded 2 million yuan, and the huge economic losses of Li Xiangshun and Cui Quanfa should be compensated. Request: The farm company and the prison coal mine are ordered to refund the risk guarantee mortgage of 2 million yuan, compensate the assets of 8142,200 yuan and the economic loss of 5 million yuan, and bear the litigation costs of this case.
The farm company and the prison coal mine replied that, first, the subject of the farm company's lawsuit was unqualified. Prison coal mine is an independent legal person, has the qualification of enterprise legal person, enjoys the capacity of civil rights and civil conduct according to law, and can bear civil liability alone. Although the farm company is a start-up enterprise of the prison coal mine, there is no situation that the actual investment of its own funds is less than the registered capital, and the claims of Li Xiangshun and Cui Quanfa against the farm company should be rejected. Second, the verbal agreement between the two sides is actually that the mining right of the prison coal mine is leased to Li Xiangshun and Cui Quanfa. Li Xiangshun and Cui Quanfa used the mining qualification of prison coal mines to mine state-owned minerals in the name of prison coal mines, which violated the mandatory provisions of the Coal Law, the Mineral Resources Law and the Measures for the Implementation of Safety Production Licenses for Coal Mining Enterprises. According to Article 52 of the Contract Law, this agreement is invalid. Three, the handling of invalid contracts, should strictly implement the provisions of Article 58 of the "contract law". 1. The prison coal mine has closed down and is facing transfer or closure. The fixed assets invested by Li Xiangshun and Cui Quanfa should be disposed of by themselves, not obtained by the prison coal mine; 2. The deposit of RMB 2 million paid by Li Xiangshun and Cui Quanfa has been recovered by Li Xiangshun and Cui Quanfa through loans; 3. Li Xiangshun and Cui Quanfa claimed a loss of 5 million yuan, which was not supported by evidence; 4. During the lease operation period, Li Xiangshun and Cui Quanfa mined a total of 25,790.15 tons of coal, of which 25,795,438+05 yuan was the profit gained by Li Xiangshun and Cui Quanfa, which should be deducted from their investment; 5. Li Xiangshun and Cui Quanfa run prison coal mines. Due to irregular operation and illegal production, the coal output was reduced by 24,209.89 tons compared with that of the prison coal mine, which lasted for more than four months, of which the prison coal mine lost 605,246.25 yuan. 6. Li Xiangshun and Cui Quanfa are mainly responsible for the losses. Even if both sides have losses, Li Xiangshun and Cui Quanfa are more responsible than the prison coal mine. Fourth, the closure of prison coal mines is an agreement to implement the government's forced closure of small coal mines, which harms national interests. It should be terminated as soon as possible, which will only reduce the fault of both parties and the loss of the country. It is understandable that prison coal mines actively correct the illegal acts of leasing coal mines. 5. According to the non-performance of the invalid contract, both parties shall not be liable for breach of contract, and request to reject the improper litigation requests of Li Xiangshun and Cui Quanfa.
The plaintiffs Li Xiangshun and Cui Quanfa submitted the following evidence to our court to support their claims:
1- 1 Basic requirements for cooperation (copy); 1-2 Principles of Foreign Business Contract of Xinjiang Fuhai Prison Coal Mine (copy); 1-3 Xinjiang fuhai prison coal mine safety production and operation contract. Proof: According to the contract requirements, principles and format of the farm company, both parties agreed on their respective rights and obligations orally through consultation in April 20 13, which proves that the agreement between the two parties is a contract, which is legal and valid and does not violate national laws. Although no management contract was signed, the contract was agreed with the farm company.
2. Bank card customer transaction inquiry. Proof: Li Xiangshun and Cui Quan paid the risk guarantee mortgage of 2 million yuan to the farm company on April 27, 20 13.
3- 1 Business license of enterprise legal person, coal production license, safety production license and mining license (copy); 3-2 raw coal sales ticket (with statistics); 3-3 "2065438+03 Salary List of Police, Workers and New Employees in Fuhai Prison Coal Mine in September". Proof: 1. The prison coal mine provides Li Xiangshun and Cui Quanfa with coal production licenses and other related coal production and operation procedures; 2. From June to mid-September, Li Xiangshun and Cui Quanfa produced 25,790 tons of raw coal, exported 22,408.03 tons of prison coal, delivered 3,252.70 tons of bricks and used 129.42 tons of prison coal; 3. Prison coal mines directly charge management fees of 64 15 18.25 yuan per ton of exported raw coal, pay administrative staff salaries of 6 19677 yuan, and use raw coal 129.42 tons for free. Both parties have fulfilled their contractual obligations.
4- 1 fuhai farm co., ltd. coal mine overall transfer approval document (copy); 4-2 Announcement on Equity Transfer of All Shareholders in Fuhai Prison Coal Mine, Autonomous Region. Proof: 1. Prison coal mine is an enterprise owned by farm company; 2. 13, 19 In July, with the approval of the prison bureau of the autonomous region, the farm company submitted a request for instructions on the overall transfer of prison coal mine assets. As the transferor, the farm company announced the transfer of all shareholders' rights and interests of the prison coal mine on the website of Xinjiang Liquan Trading Center on April 14. The farm company transferred the assets of the prison coal mine, which made the contract impossible to perform.
5- 1 real estate license; 5-2 Assets Appraisal Report issued by Xinjiang Branch of Hubei Wan Xin Assets Appraisal Co., Ltd. on October 0, 20165438 10. Certificate: The certificate issued by the prison coal mine confirms that the coal mining machinery, shaft engineering, buildings and some inventory materials invested during the contract period are personal assets of Li Xiangshun and Cui Quan; According to the entrustment of both parties, asset ownership certificate and on-site evaluation, the appraisal agency confirmed that the total assets invested by Li Xiangshun and Cui Quanfa in the coal mine were 865,438+042, 200 yuan.
The cross-examination opinions of the defendant farm company and prison coal mine are as follows:
The authenticity of the evidence 1 is recognized, but the legitimacy and purpose of its proof are not recognized. 1- 1 said prison coal mine. 1-2 is also a prison coal mine rather than a farm company. 1-3 is also provided in consultation with the prison coal mine. The law prohibits coal mines from contracting and lending mining licenses and safety production licenses, and the legality is not recognized. Evidence 1 is an offer, not a formal contract signed by both parties.
Evidence 2 found that the prison coal mine received 2 million yuan, and all of them were returned to Li Xiangshun and Cui Quanfa in the form of loans.
Evidence 3 identification of authenticity. 3- 1 is the proof of the prison coal mine, which further shows that it cooperates with the prison coal mine and has nothing to do with the farm company. 3-2 Statistics table is incomplete, and coal list is also incomplete. 3-3 The fact that the wages of 30 employees in the prison coal mine are paid is recognized and the amount is inaccurate. The management fee is 644,753.75 yuan for approval.
The authenticity of evidence 4 is recognized, but the purpose of proof is not recognized. The reply was given by Fuhai Prison to the farm company, and it is true that the transfer notice was posted online. It is not that the farm company wants to transfer the assets of the prison coal mine, but that the state and relevant departments require the closure of small coal mines.
Evidence 5- 1 is true and credible, but the purpose of proof is not recognized. 5-2 No power of attorney is not standard. The farm company and the prison coal mine did not participate in the assessment, but were entrusted by Li Xiangshun and Cui Quan. According to the oral agreement between the two parties, the fixed assets should be discounted at the end of the contract and purchased by the coal mine or disposed of by itself.
Our appraisal opinion is that the farm company and the prison coal mine recognize the authenticity of the evidence 1 and confirm its authenticity. Because the evidence 1 was produced in the name of prison coal mine, the purpose of proof by Li Xiangshun and Cui Quanfa could not be achieved, and the validity of proof was not confirmed. Evidence 2: The farm company and the prison coal mine recognize and confirm it. Evidence 3 The farm company and the prison coal mine recognized and confirmed it. Evidence 4 Authenticity The farm company and the prison coal mine recognize and confirm its authenticity. Evidence 5- 1 The authenticity of the farm company and the prison coal mine has been approved and confirmed; Evidence 5-2 Although the farm company and the prison coal mine did not participate in the appraisal, the property ownership certificate issued by the prison coal mine confirmed that the coal mining machinery, shaft works, buildings and some inventory materials invested during the lease operation were personal assets of Li Xiangshun and Cui Quan, and the appraisal institution and the entrusted appraisal of coal mine assets by the prison coal mine belonged to the same appraisal institution, which was qualified and the appraisal procedure was legal, so it was confirmed.
Defendant Farm Company and Prison Coal Mine submitted the following evidence to our court to support their defense claims:
1, 5 groups of documentary evidence ***37 pages. 1- 1 and 8 on-site disposal decisions and safety supervision and inspection records of the Coal Industry Administration Bureau of Bushehr Mongolian Autonomous County, ***23 pages; 1-2 1 copy of on-site handling decision of Beijiang Supervision Branch of Xinjiang Coal Mine Safety Supervision Bureau, on-site inspection record, ***5 pages; 1-3 the inspection table of fuhai prison coal mine delivered by Xinjiang Uygur autonomous region prison administration in the national inspection of prison coal mine safety production, *** 1 page; The 1-4 notice of rectification of hidden dangers and problems in on-site inspection of production safety issued by the Prison Administration of Xinjiang Uygur Autonomous Region to the prison coal mine, page ***2; 1-5 Safety supervision and inspection records issued by daily supervision of prison coal mine to Li Xiangshun and Cui Quanfa, in quadruplicate, with 6 pages in total. It proves that the illegal production of Li Xiangshun and Cui Quanfa is serious. After repeated inspection and handling by the administrative organs, they can't produce normally and can't meet the technical transformation requirements and minimum output agreed by both parties, causing property losses to the prison coal mine.
2. The decision of administrative punishment made by the Bureau of Land and Resources of Bukeser Mongolian Autonomous County, Land and Resources Penalty Zi (20 14) No.22, page ***2. Proof: Li Xiangshun and Cui Quanfa illegally built colored steel houses and were fined 14660 yuan. Li Xiangshun and Cui Quan Fa should dismantle the illegal buildings themselves and bear the fine.
3. Loan certificate issued by Li Xiangshun and Cui Quanfa ***30 pages. Proof: Li Xiangshun and Cui Quan borrowed 3.607 million yuan from Prison Coal Mine, and the deposit of 2 million yuan was returned by borrowing.
4. Six documentary evidence ***37 pages. Proof: the money advanced by the prison coal mine. 4- 1 The electricity fee paid by the prison coal mine is 85 146 yuan; 4-2 Advance payment of wages to employees in prison coal mines 5 10 189 yuan; 4-3 Pay off others' debts with coal, 340 1.28 tons of coal, with a value of 407,226.2 yuan; 4-4 Prison Coal Mine advances social security fund for its employees 108935 yuan; 4-5 prison coal mine advances 427,070 yuan for materials; The prison coal mine pays taxes of 50438+0 yuan (value-added tax and resource tax). 59438.68868688666
The cross-examination opinions of the plaintiffs Li Xiangshun and Cui Quanfa are as follows:
The authenticity of the evidence 1 is recognized, but the purpose of proof is not recognized. 1- 1 to the prison coal mine. 1-2 Both parties verbally agreed that the legal representative and production safety shall be the responsibility of the prison coal mine. If there are problems in the process of contracting operation, Li Xiangshun and Cui Quanfa should be given rectification. But all explosive detonators were provided by the prison coal mine in June, July, August and September. Relevant departments believe that prison coal mines are responsible for illegal production. The illegal production of Li Xiangshun and Cui Quanfa did not lead to the termination of the contract, but because the farm company and the prison coal mine emphasized that their superiors demanded the closure of the small coal mine. 1-3 and 1-4 were sent to the prison coal mine. Safety in production is the responsibility of prison coal mines.
The authenticity of evidence 2 is recognized, but the purpose of proof is not recognized. A punishment decision was made on the prison coal mine. The construction procedure should be that the prison coal mine applies to the relevant departments, and the prison coal mine has not fulfilled its due obligations. Administrative punishment has nothing to do with the disputed facts.
Evidence 3 identification of authenticity. The loan of 3.607 million yuan was mainly from September 18 to October 22 10, which was borrowed for the workers who were dismissed after the contract was terminated, and it was not a pure loan.
Evidence 4- 1, 4-2, 4-4 and 4-5 are recognized. 4-3 Zhong 148 tons of coal belongs to the self-use coal of the prison coal mine, and the actual brick payment is 3,253 tons of coal, with a value of 407,226.20 yuan, which is produced by Li Xiangshun and Cui Quan, and does not belong to the advance payment. 4-6 taxes and fees have not been paid, so they will not be remitted.
Our appraisal opinion is that Li Xiangshun and Cui Quanfa recognize and confirm the authenticity of the evidence 1. Since there is no causal relationship between the termination of the contract by both parties and whether Li Xiangshun and Cui Quanfa violated the production rules, the evidence 1 is irrelevant to this case, and the validity of the proof is not confirmed. The authenticity of Evidence 2 was recognized and confirmed by Li Xiangshun and Cui Quanfa. Evidence 3 was recognized and confirmed by Li Xiangshun and Cui Quanfa. Evidence 4- 1, 4-2, 4-3, 4-4, and 4-5 have been checked by both parties, and they are confirmed if there is no objection. 4-6 Taxes and fees are calculated by the coal mine itself, and will not be confirmed if they are not paid.
It was found through trial that in April of 20 13, Li Xiangshun and Cui Quanfa reached an oral agreement with the prison coal mine, stipulating that 1, Li Xiangshun and Cui Quanfa would contract the production and operation of the prison coal mine for a period of 20151231; 2. Li Xiangshun and Cui Quanfa paid a risk guarantee mortgage of 2 million yuan to bear the mine input and production costs. Li Xiangshun and Cui Quanfa, the former managers and certified workers of the prison coal mine, must be retained and bear the salary and social security benefits; 3. Prison coal mines charge management fees according to 25 yuan/ton of raw coal, and Li Xiangshun and Cui Quanfa provide 600 tons of self-use coal for prison coal mines free of charge every year; 4. Prison Coal Mine provides Li Xiangshun and Cui Quanfa with mining licenses, coal production licenses, safety production licenses, business licenses and other licenses required for legal production; 5. The legal representative, mine manager, finance, sales and technical supervision of the coal mine are appointed by the prison coal mine, and the project leader, safety mine manager, production mine manager and chief engineer of electromechanical mine manager are appointed by Li Xiangshun and Cui Quanfa; 6 taxes and fees in accordance with the relevant provisions of the state and industry regulations.
On April 27th, 20 13, Li Xiangshun and Cui Quan paid the risk deposit of RMB 2 million to the bank account of the farm company by transfer. Li Xiangshun and Cui Quanfa purchased the necessary equipment and organization personnel for coal mine production and operation, and officially started production and operation on June 20 13. During this period, a total of * * 25790. 15 tons of coal was mined, and the price per ton was 125 yuan. After deducting the 25 yuan management fee per ton of prison coal mine, Li Xiangshun and Cui Quanfa earned 25,799 tons of coal. Li Xiangshun and Cui Quanfa borrowed 3.607 million yuan from the prison coal mine. Li Xiangshun and Cui Quanfa paid 85 146 yuan for prison coal mine workers, 510/89 yuan for social security 108935 yuan, paid off debts of 407,226.20 yuan and paid materials of 427,070 yuan. Li Xiangshun and Cui Quanfa overpaid 56655 1.20 yuan (deposit 2 million yuan+coal sales profit 25790 15 yuan-loan 3.607 million yuan-electricity fee 85 146 yuan-employee salary 5 1065438 yuan-employee social security.
Prison Coal Mine issued an asset ownership certificate on September 29th, 20 13: the coal mining machinery, shaft and roadway works, buildings and some inventory materials invested by Li Xiangshun and Cui Quanfa in the cooperative operation with prison coal mine are personal assets of Li Xiangshun and Cui Quan. 20 1 1 65438+1October11,Li Xiangshun and Cui Quanfa entrusted Hubei Wanxin Assets Appraisal Co., Ltd. Xinjiang Branch to evaluate their assets invested in prison coal mines. The appraisal conclusion is: the appraisal value is 8 142200 yuan, of which the inventory is 3 13068.
On September 7, 20 14, 14, the Land and Resources Monitoring Brigade of Buxiaer Mongolian Autonomous County made a decision and a notice of administrative punishment, and punished the prison coal mine for occupying land without approval to build temporary living board houses for employees: fined14,660 yuan, and ordered to dismantle illegal buildings and other facilities.
Prison coal mine is an enterprise legal person owned by the whole people.
The focus of the dispute in this case is: 1, whether the oral agreement between the prison coal mine and Li Xiangshun and Cui Quan is valid; 2. Whether the prison coal mine is in breach of contract, whether it should refund the deposit of 2 million yuan, compensate the asset investment of 8142,200 yuan and compensate the economic loss of 5 million yuan; 3. Whether the farm company should be liable for compensation.
We believe that the oral agreement on coal mine contracting reached between Li Xiangshun and Cui Quanfa and the prison coal mine is an enterprise leasing operation contract in which Li Xiangshun and Cui Quanfa lease the enterprise to operate and produce and pay the management fee (rent) to the prison coal mine without changing the ownership of the prison coal mine, and the prison coal mine performs the supervision and management duties. According to the Interim Regulations on Lease Operation of Small Industrial Enterprises Owned by the Whole People, the state allows small state-owned enterprises to hand over their enterprises to lessees for operation within a certain period of time. The oral agreement on coal mine contracting reached between Li Xiangshun and Cui Quanfa and the prison coal mine does not violate the mandatory provisions of laws and administrative regulations, and is the true expression of both parties, which is legal and effective.
The prison coal mine was transferred by the superior competent department as a whole, and the coal mine contracting agreement signed with Li Xiangshun and Cui Quanfa was unilaterally terminated, which constituted a breach of contract and should compensate Li Xiangshun and Cui Quanfa for their economic losses. Appraised by Hubei Wanxin Assets Appraisal Co., Ltd. Xinjiang Branch, the appraisal value of assets invested by Li Xiangshun and Cui Quanfa is 865,438+042, 200 yuan. Among them, the appraised value of houses and buildings is 863, 680 yuan. Because the house and building were identified as illegal buildings by the Land and Resources Monitoring Brigade of Hobukesaier Mongolian Autonomous County and were ordered to be demolished, they could not be used as legal investment assets, so Li Xiangshun and Cui Quan Fa should dismantle them themselves. The value of assets invested by Li Xiangshun and Cui Quanfa should be 7278520 yuan. After reconciliation by both parties, the deposit of 2 million yuan has been recovered by Li Xiangshun and Cui Quan in the form of loan, with an overcharge of 566,556,5438 yuan +0.20 yuan. Li Xiangshun and Cui Quanfa claimed a loss of 5 million yuan, but did not provide evidence to prove the specific loss, so they did not support it. To sum up, the prison coal mine should compensate Li Xiangshun and Cui Quanfa for various losses of 67 1 1968.80 yuan (invested assets of 7278520 yuan-overpayment of 5665 1.20 yuan).
Li Xiangshun and Cui Quanfa claimed that the coal mine contracting agreement was reached with the farm company, and the farm company should bear the liability for compensation, but they did not provide sufficient evidence to prove it. Basic Requirements for Cooperation, Principles of Foreign Operation Contract of Xinjiang Fuhai Prison Coal Mine and Mine Safety Contract of Xinjiang Fuhai Prison Coal Mine are all offers issued by prison coal mines. The business license and other licenses used in its production and operation are provided by the prison coal mine; It claimed that the deposit of 2 million yuan was remitted to the farm company, but the deposit of 2 million yuan from the farm company was transferred to the prison coal mine, and Li Xiangshun and Cui Quanfa also got the deposit of 2 million yuan from the prison coal mine in the form of loans. Although the farm company is an investor in the prison coal mine, the prison coal mine is an independent enterprise legal person and should bear civil liability by itself. Li Xiangshun and Cui Quanfa argued that the farm company should be liable for compensation, and the evidence was insufficient, so they did not support it.
The case was discussed and decided by the judicial committee of our hospital. According to Articles 8, 96 and 97 of the Contract Law of People's Republic of China (PRC), Article 36 of the General Principles of the Civil Law of People's Republic of China (PRC), Article 3 of the Provisional Regulations on Lease Operation of Small Industrial Enterprises Owned by the Whole People, and Articles 64 and 142 of the Civil Procedure Law of People's Republic of China (PRC),
1. the defendant fuhai prison coal mine in Xinjiang Uygur autonomous region shall compensate the plaintiffs Li xiangshun and Cui quanfa 671kloc-0/968.80 yuan within 30 days from the effective date of this judgment;
2. Reject the other claims of the plaintiffs Li Xiangshun and Cui Quanfa.
If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC).
The acceptance fee for this case is 1 12653.20 yuan, which shall be borne by the plaintiffs Li Xiangshun and Cui Quanfa, 6275438+04.04 yuan, and the defendant Fuhai Prison Coal Mine in Xinjiang Uygur Autonomous Region, 49939.438+06 yuan.
If you refuse to accept this judgment, you can file an appeal with our court within 15 days from the date of service of the judgment, and submit copies according to the number of the other parties, and appeal to the branch of Yili Kazakh Autonomous Prefecture of the Higher People's Court of Xinjiang Uygur Autonomous Region.
Presiding judge Hao Jianjun
Judge Xu Caixia.
People's Juror Li Jiang
201March 5 17
Bookkeeper Garxian? Jumahule