As a procedure of post relief, when the parties have no other means of relief, and the judgment of the original case is indeed wrong, and the legitimate rights and interests of the parties are damaged by the wrong judgment, the parties should be allowed to file a third-party cancellation lawsuit to safeguard their legitimate rights and interests, so as to achieve the purpose of legal fairness and justice
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1、 Shengda company does not have the subject qualification to file a third-party cancellation lawsuit
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Gansu High Court (2020) Gan Minzhong No
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That is, some of the creditor’s rights of Shengda company confirmed in the mediation statement are “creditor’s rights expressly protected by law”
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2
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Although Shengda company takes preservation measures on the land involved in the case in order to realize the above claim application, it does not enjoy substantive rights on the land involved
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32 civil ruling; File the retrial of the retrial applicant’s lawsuit against the respondent Tianle company, Shengyuan company, industrial and mining company, the third party Liu Hucheng and the third party, and support all claims of the retrial applicant for the first instance
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III
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First of all, Shengda company is not the subject of the legal relationship between Tianle company, Shengyuan company and industrial and mining company in the cooperative development of real estate contracts, and does not enjoy the rights and assume obligations in the legal relationship, that is, it does not have an independent claim on the subject matter of the (2017) Gan 12 Minzhong No
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Shengda enjoys general creditor’s rights against Shengyuan company based on (2016) Gan 12 min Chu No
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” This provision specifies that the obligee with the priority of project payment has the right to file a third-party cancellation action
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After examination, the Supreme Court held that the focus of the review of this case is whether Shengda company meets the conditions for filing a third-party cancellation lawsuit
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Secondly, based on the mediation results of the construction contract dispute with Shengyuan company, industrial and mining company and Gansu First Construction Group Co., Ltd., Shengda company enjoys the general creditor’s right to require Shengyuan company to pay monetary debts, which has no legal relationship with the civil judgment result of (2017) Gan 12 min Zhong No
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Shengyuan company shall pay the project payment of Shengda company of RMB 111172 million before June 30, 2017″
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Neither the industrial and mining company nor the student source company has any property available for execution
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The Supreme Court has formed a collegial panel to conduct the review according to law, and the review has been completed
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263 case, nor is it a third party with an independent claim in the case
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The specific contents of the case are as follows: the retrial applicant Gansu Shengda Architectural Decoration Engineering Co., Ltd
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Thirdly, the legal consequences of Tianle company and industrial and mining company are wrongly identified（ 3) The judgment of the original case applying for cancellation is wrong in the application of law
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522 civil ruling and Gansu Longnan intermediate people’s court’s (2019) Gan 12 min Chu No
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Request to revoke Gansu High Court’s (2020) Gan min Zhong No
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(hereinafter referred to as industrial and mining company) and Liu Hucheng, the third person in the first instance, refused to accept the civil ruling (2020) Gan min Zhong No
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2458 civil ruling
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As a “shareholder contribution dispute”, the original case can only apply the company law of the people’s Republic of China and its judicial interpretation, but not the contract law of the people’s Republic of China and the interpretation of the Supreme People’s Court on the application of law in the trial of cases involving disputes over state-owned land use rights contracts（ 4) The judgment of the second instance of the original case exceeds the claims
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According to Article 56 of the Civil Procedure Law of the people’s Republic of China, the subject who has the right to file a third party cancellation action is the third party, including the third party with independent claim and the third party without independent claim
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The creditor’s action of cancellation by a third party shall also meet other conditions stipulated by law and judicial interpretation
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(hereinafter referred to as Tianle company) Gansu Shengyuan Real Estate Development Co., Ltd
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However, the purpose of establishing a third party cancellation action is to remedy the civil rights and interests enjoyed by the third party who did not participate in the action due to reasons that cannot be attributed to him but were damaged due to the wrong content of the effective judgment document
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The retrial applicant Shengda company applied for retrial, saying: 1
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(hereinafter referred to as Shengda company) and the respondent Xihe County Tianle fireworks Co., Ltd
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3
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For other creditor’s rights, in principle, the creditor shall not bring a suit of cancellation by a third party
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The judgment of the original case applied for cancellation is indeed wrong（ 1) The cause of action is wrong, and the original case should be a “shareholder contribution dispute”（ 2) The judgment of the original case applying for cancellation finds the facts wrong
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522 of Gansu higher people’s court and applied to the Supreme Court for retrial
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In this regard, please refer to the latest case of the Supreme Court — (2021) Supreme FA min Shen No
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The retrial applicant is the qualified subject of the case, and the retrial applicant has no other relief channels
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It did not apply for the cancellation of the relevant agreement on tripartite real estate development signed by Tianle company, industrial and mining company and Shengyuan company
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48 civil mediation statement determined: “..
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However, as far as the actual construction contractor is concerned, most cases of the supreme court show that he does not enjoy the priority of project payment, so he has no right to file a third-party cancellation lawsuit
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Click the title of the book to learn more《 The minutes of the civil and commercial trial work meeting of the national court stipulates: “the third party in the third party cancellation action is only limited to the third party with and without independent claim specified in Article 56 of the civil procedure law, and generally does not include creditors
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(hereinafter referred to as Shengyuan company), Gansu industrial and mining materials Group Co., Ltd
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Therefore, “Shengda company does not meet the subject conditions of a third-party cancellation lawsuit”, It belongs to the wrong determination of the basic facts of the case, and there is no evidence to prove the wrong determination of the basic facts（ 2016) Gan 12 min Chu No
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First of all, the identification of “identity” of Tianle company and industrial and mining company is wrong
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Therefore, the creditor can file a third party cancellation action under the following circumstances: (1) the creditor’s right is a creditor’s right expressly protected by the law, For example, the priority of compensation for the construction project price stipulated in Article 286 of the contract law and the ship priority stipulated in Article 22 of the maritime law（ 2) Because the rights and obligations of the debtor and others are determined by the effective judgment document, the creditor could have enjoyed the cancellation right of the debtor’s behavior specified in Article 74 of the contract law and Article 31 of the enterprise bankruptcy law, but could not exercise it（ 3) The creditor has evidence to prove that part or all of the contents of the creditor’s rights determined in the main text of the judgment document are false
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Due to the improper execution of the intermediate people’s Court of Longnan City, Gansu Province, the retrial applicant has lost the way to file an objection to execution, an objection to execution and a retrial application in the people’s Court of Xihe County, Gansu Province
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In conclusion, an application for retrial is filed in accordance with paragraph 2 of article 200 of the Civil Procedure Law of the people’s Republic of China
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In the original case, Tianle company applied for the cancellation of the investment cooperation agreement and the supplementary agreement
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263, and does not have the characteristics of a third party without independent claim
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Secondly, it is wrong to identify the responsibility of industrial and mining companies for failing to make capital contributions as agreed
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Shengda company claims that part of its creditor’s rights against Shengyuan company are project funds, which belong to the creditor’s rights of priority compensation.
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48 civil mediation statement, which is not within the scope of civil rights and interests protected by the third party’s cancellation action
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522 civil ruling found that “Shengda company enjoys ordinary creditor’s rights against Shengyuan company, not the rights specified in articles 74 and 286 of the contract law of the people’s Republic of China and Article 31 of the enterprise bankruptcy law”
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