Let's talk about the scenes of two cases handled by our team:

Scenario 1 (financial creditor's rights):

The asset management company received the creditor's rights of the bank's non-performing assets. In the execution stage of the court, the court applied to change the applicant for execution, and the court made an execution ruling to agree to the change accordingly.

Scenario 2 (non-financial creditor's rights):

The buyer owed money to our customer A and was sued by A to the court. Due to the strategic adjustment of the Group, it is planned to shut down and cancel A, and at the same time arrange another company B of the Group to undertake the creditor's rights. Party A and Party B have signed a creditor's rights transfer agreement, and intend to inform the buyer by notarization. Before the verdict was reached in the first instance, we communicated with the case-handling judge in advance, hoping to change the subject of the lawsuit and award the buyer direct repayment to B. After hearing this, the judge simply said, "No, why don't you drop the lawsuit and sue again?" Withdraw?

Financial claim.

Conclusion 1:

The bank has transferred the creditor's rights to the asset management company before filing a lawsuit, and the court may change the litigation subject to the asset management company according to the application.

Based on:

Article 2 of the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Assets Cases Caused by the Acquisition, Management and Disposal of Non-performing Loans of State-owned Banks by Financial Asset Management Companies stipulates: "After a financial asset management company receives the creditor's rights of a state-owned bank, the people's court may change the litigation subject to a financial asset management company that has received the creditor's rights before the transfer of the creditor's rights."

Reference:

Supreme Court (20 14)minerzhonzino. 25 1, "cinda Heilongjiang branch requested to change Xinyang branch of CCB into its company during the second trial of this case, and the above provisions shall apply. The court gave permission. "

Conclusion 2:

The court may, on the basis of the application of the assignor or assignee and a valid agreement on the assignment of creditor's rights, make an order to change the lawsuit or execute the object.

Based on:

Article 3 of the Supreme People's Court's Supplementary Notice on Issues Related to the Acquisition and Disposal of Bank Non-performing Assets by Financial Asset Management Companies (Fa Fa Fa [2005 162]) stipulates: "When a financial asset management company transfers or disposes of non-performing debts that have been involved in litigation, execution or bankruptcy, the people's court shall make an order to change the litigation or enforcement subject according to the creditor's rights transfer agreement and the application of the transferor or transferee."

Non-financial claims.

Conclusion 1:

In the lawsuit, although the plaintiff transferred the creditor's rights to a third party outside the case, it did not affect the plaintiff's qualification and litigation status, and he still had the right to continue to participate in the lawsuit.

Based on:

Article 249 1 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of People's Republic of China (PRC) (the latest amendment came into effect on April 10, 2022) stipulates: "In litigation, the transfer of disputed civil rights and obligations does not affect the qualifications and status of the parties. A legally effective judgment or ruling of the people's court is binding on the assignee. "

Reference: Supreme Court Case (2020) the Supreme People's Court No.2002. 13.

Conclusion 2:

The assignee may apply to change the plaintiff, and whether it agrees to be judged by the court. After the court rejects the plaintiff's application for change, the transferee may propose to participate in the litigation as a third party, and whether or not to agree is still up to the court.

Based on:

Paragraph 2 of Article 249 of the Interpretation of the Civil Procedure Law: "If the assignee applies to participate in the litigation as a third party without independent claim, the people's court may allow it. If the assignee applies for litigation on behalf of the parties concerned, the people's court may decide whether to grant it according to the specific circumstances of the case; If it is not allowed, it can be added as a third person without independent claim. " Article 250 "In accordance with the provisions of Article 249 of this Interpretation, if the people's court allows the assignee to represent the parties in litigation, it shall make an order to change the parties. After changing the parties, the transferee shall continue the litigation, and the original party shall withdraw from the litigation. The lawsuit that the original party has completed is binding on the assignee. "

Conclusion 3:

If the creditor specified in the effective legal document transfers the creditor's rights before entering the execution procedure, the assignee of the creditor's rights may directly apply for execution as the executor of the application. In the execution procedure that has already started, the executor can be changed according to the application of the assignee of creditor's rights.

Reference: Supreme Court Guiding Case No.34: Li Xiaoling and Li Pengyu applied to execute the resolution of Xiamen Marine Industry (Group) Co., Ltd. and Xiamen Marine Industry Corporation.

Suggestion:

Creditor's rights transfer agreements sometimes occur between two subsidiaries under the same group. For this equity structure adjustment, the legal risk is controllable because it belongs to the same parent company. Sometimes it happens between the transfer and acquisition of bad debts. At this time, it is necessary to have a perfect text to restrain the transferor's due diligence litigation or cooperate with the change of litigation subject/execution subject after the transfer of creditor's rights to ensure the realization of the transferee's subsequent interests.