Applicant 1 (plaintiff of first instance, appellee of second instance): Liu X, female, born on X/X, 19XX, Han nationality, living. Xxxx county, Sichuan province, ID number: xxxxxxxx.
Applicant II (plaintiff in the first instance, appellee in the second instance): Chen XX, male, born on X/X, 19XX, Han nationality, living. XXXXXX County, Sichuan Province, ID number: XXXXXX.
Respondent 1 (defendant in the first instance and defendant in the first instance): Luo xx, male, born on XX 19XX, Han nationality, living in XXX County, Sichuan Province. Id number: XXXXXXX.
Respondent II (defendant in the original trial): Jiang X, female, born on X/X, 19XX, Han nationality, living in XX County, Sichuan Province. Id number: XXXXXXX.
Respondent 3 (defendant in the first instance and appellant in the second instance): Sichuan XX Real Estate Development Co., Ltd., whose domicile is XXXXXX, XX District, Chengdu.
Legal representative: Jiang X, position: executive director and general manager.
On June 30, 2020, Kaijiang County People's Court of Sichuan Province made a civil judgment ([2020] ChuanminchuziNo. 1723) on the case of private loan dispute between the second applicant and the third respondent, and found that the facts were clear, the applicable law was correct and the judgment was fair and legal, but the third respondent refused to accept it and filed an appeal. The Intermediate People's Court of Dazhou City, Sichuan Province made a judgment on February 3, 65438. In 2020, on the basis of maintaining the loan principal 1 200,000.00 yuan, the court of first instance ruled that "from 20 1 41to the full repayment date, the monthly interest rate is 2%, and at 20/kloc-0.
Request for retrial:
1. Revoke the second-instance judgment of Dazhou Intermediate People's Court of Sichuan Province (2020).
2. Revise the judgment and maintain the first-instance judgment of (2020) Early Republic of China (1723 XXX). The specific request is as follows: Respondents Luo XX, Jiang X and Sichuan XX Real Estate Development Co., Ltd. repay the loan principal of the second retrial applicants Liu X and Chen XX with interest of 1 .20,000 yuan (from June of 20 14 to the date of full repayment, the monthly interest rate is 2%).
3. All expenses of retrial proceedings shall be borne by the three defendants.
Facts and reasons:
1. Three civil judgments issued by the first and second retrial applicants, which prove that both parties agreed to calculate the interest at the rate of 2.5% per month. The People's Court of Kaijiang County, Sichuan Province made the first trial of (2020) Chuan 1723 Chu Min XXX NO. According to the provisions of the Law on Interest Rate of Private Lending, the monthly interest rate of the IOU was determined to be 2%, which was in line with the facts and laws, and was recognized by the applicant in the second instance.
Second, the second-instance judgment reduces the monthly interest rate determined by the first-instance judgment, which is not in line with facts and laws. After the judgment of the second instance, the second retrial applicant obtained new evidence from the original civil judgment, which fully proved that the third respondent should pay the second retrial applicant 2% of the monthly interest rate instead of 1.5% and 1% of the monthly interest rate.
During the second trial of this case, the second retrial applicant submitted to the court of second instance a copy of the Debt Settlement Commitment Letter issued by the respondents Jiang X, Luo XX and Sichuan XX Real Estate Development Co., Ltd. to the creditor's representative, in order to prove that the reason why the second retrial applicant agreed to reduce the monthly interest rate of the loan was that the third respondent promised to repay the principal and interest on time and agreed to conditionally reduce the monthly interest rate. The judgment of the second instance rejected the authenticity and relevance of the debt repayment undertaking on the grounds that "the debt repayment undertaking is a copy and the creditor's signature column of the debt repayment undertaking is not signed by the appellee". After the judgment of the second instance was made, the second retrial applicant went to great lengths to find Zhu XX, the creditor's representative, and asked him to lend the original debt commitment letter he kept to the second retrial applicant, so that the second retrial applicant could prove to the court that the third respondent had made a written commitment to all creditors, including the second retrial applicant, and the contents of the commitment.
2. The debt commitment letter proves that the second retrial applicant agreed to lower the monthly interest rate standard because the third respondent promised to pay off the principal and interest in 20 16.
Article 2 of the Debt Repayment Commitment stipulates: "The principal shall be paid in four phases in 20 16 years, and one quarter of the total principal and interest shall be repaid every quarter. Full payment at the end of the year, not continued. " Article 4 states: "The above terms and conditions must be observed. In case of breach of contract, the original monthly interest rate is 2.5%, and it shall bear corresponding legal responsibilities. " The above agreement clearly proves that the third respondent promises to repay the principal and interest, and the consequence of default is to restore the original monthly interest rate standard. It also proves that the second retrial applicant agreed to lower the monthly interest rate because the third respondent promised to repay all the principal and interest on 20 16, but in fact the third respondent failed to fulfill the repayment promise. Therefore, the monthly interest rate agreed in the original IOU should be 2.5%.
3. The debt commitment letter is a voluntary commitment made by the three respondents to all creditors, which takes effect after being signed and sealed by the three respondents and has legal effect; The second retrial applicant is one of the creditors, and this commitment letter is of course a commitment to the second retrial applicant, which is related to the litigation request of the second retrial applicant in this case.
1030 10 indicated that "the debtor's original monthly interest rate was 2.5% to absorb public deposits", "this scheme was signed by the debtor (the debtor's original receipt was retained until all principal and interest were paid off)" and "the signature of the creditor's representative was valid", which proved that:
(1) The content of the debt commitment does not violate the mandatory provisions of laws and administrative regulations. It becomes legally effective after it is signed and sealed by the debtor, that is, the three respondents. According to its promise, if the respondent fails to pay off the principal and interest in full to the creditor, the original receipt is still valid;
(2) The third respondent, as the debtor, admits that it absorbs deposits from the public, that is, deposits from unspecified objects; Second, the respondent belongs to the public and naturally belongs to the object of deposit absorption; In addition, the third defendant also
Approved the original monthly interest rate of 2.5%;
(3) The three respondents signed and sealed the debt undertaking, which proves that the three respondents fully agreed with the content of the debt undertaking. Of course, the five people who agreed to sign were creditor representatives, not just these five people. There is no reason for the people's court not to recognize the signatory's creditor representative status. It can be seen that the second retrial applicant is included in all creditors, and the signature of the creditor's representative is enough to sign on behalf of the second retrial applicant, and the second retrial applicant does not need to sign in person. Therefore, the legal and effective debt commitment letter issued by the three respondents is a commitment to all creditors including the second retrial applicant. This letter of commitment shall come into effect for all creditors including the second retrial applicant after being signed by five creditors, including Zhu XX, the creditor's representative. Whether the second retrial applicant signs the debt commitment letter does not affect that this commitment letter is also applicable to the second retrial applicant. This undertaking is closely related to the claim of the second retrial applicant.
Third, according to the judgment of daily life experience, there is no reason for the second retrial applicant to unilaterally agree to lower the monthly interest rate of the loan without the repayment commitment of the third respondent. The simple identification of evidence by the people's court of second instance, including a copy of debt repayment commitment, obviously violates legal logic and daily life experience, and should be corrected.
Four. Three. The respondent broke the contract with the second retrial applicant and other creditors for many times, refused to repay the principal and interest, and was seriously untrustworthy. The people's court should evaluate it negatively to prevent it from profiting from the breach of contract. If the applicant for the second retrial "submitted a copy of the debt undertaking, and the creditor's signature column of the debt undertaking was not signed by the appellee", it would be tantamount to conniving at the three defendants if the key evidence was easily deemed invalid and the monthly interest judgment was reduced. Therefore, the judgment of the second instance must be corrected to create a social atmosphere of honesty.
Verb (abbreviation of verb) Regarding the question that the court of first instance should judge the same case in the second instance proposed by Respondent III, the second retrial applicant thinks that:
1. Although the plaintiffs in the judgment submitted by Respondent III are all creditors, with the same status as the second retrial applicant and similar cases, after all, each case is an independent case and the cases are not completely consistent. Even the judgment made by the same court will be made because of different cases and different evidence. Judging from the four judgments submitted by Respondent III, the determination of the monthly interest rate of the four cases by Kaijiang County Court is basically based on the "loan interest calculation list issued by Respondent III and signed by creditors" as evidence, which is considered as the calculation standard for creditors to voluntarily reduce the monthly interest rate, that is, both parties renegotiate the monthly interest rate, and then make judgments according to the newly agreed interest rate standard on the list. However, this judgment seriously ignored the objective fact that "the reason why the creditor signed the loan interest calculation list with the reduced monthly interest rate was because the respondent promised to repay the principal and interest as agreed", and then failed to recognize that the reduction of the loan interest rate in the list was a conditional agreement. Accordingly, the judgment made on the basis of not finding out whether Respondent III has fulfilled the obligation to repay the principal and interest as agreed and whether the attached conditions have been realized is obviously wrong. Although the creditors corresponding to the four judgments did not appeal and gave up the right of appeal, which led to the legal effect of the four "wrong" judgments, the four effective judgments could not avoid the problem of "wrong judgments" because they had already taken effect. Legally speaking, the obligee can give up his rights, but some obligees cannot ask other obligees to give up their rights. The people's court should fully affirm that the applicant for the second retrial does not give up his legal rights. Therefore, it is obviously inappropriate to deny the legal rights of the second retrial applicant on the grounds of the same case and the same judgment.
2. In addition to the reasons mentioned in Article 1 above, there is another significant difference between the case of the second retrial applicant and the cases corresponding to the four judgments submitted by Respondent 3, that is, the second retrial applicant submitted a debt commitment letter (even if it is only a copy) to the court of second instance at the second trial. The probative force of this new evidence has been expounded in detail. This evidence was not confirmed in the four cases submitted by Respondent 3 and the court of second instance.
To sum up, this case is not completely related to other cases corresponding to the four judgments submitted by Respondent III. Because the two are not completely related, the second retrial applicant's case submitted new evidence that other cases did not have, and this new evidence is very important for the determination of the case. Therefore, the court of second instance should make different judgments, rather than simply making "the same judgment", otherwise there will be "misjudgment"! In fact, the court of first instance, adhering to the principle of fairness and justice, found that the interest-bearing list was conditional, and the respondent failed to fulfill the obligation to repay the principal and interest as agreed, and there was a breach of contract, which did not meet the conditions. Therefore, the interest-bearing standard should be implemented in accordance with the original IOU, and then a legal and fair judgment should be made. However, the court of second instance did not recognize this fact, nor did it correctly recognize the four judgments and debt repayment commitments submitted by the respondent, which led to the judgment of second instance violating the facts.
To sum up, the monthly interest rate standard agreed by the second retrial applicant and the third respondent is 2.5%, and it is conditional for the second retrial applicant to agree to lower the monthly interest rate standard to 1.5% and 1%, that is, the third respondent must fulfill the obligation to repay the principal and interest in accordance with the debt commitment, but the third respondent has not fulfilled its commitment and has not paid off to the second retrial applicant so far. Therefore, whether explicitly agreed in the letter of commitment or based on the principle of good faith, the three respondents should resume the original agreed monthly interest rate standard, that is, the monthly interest rate is 2.5%. Then, the second retrial applicant thinks that the judgment of the first instance is fair and just and legally justified, and should be maintained, while the judgment of the second instance on the Debt Commitment Letter and the judgment submitted by the third respondent is obviously improper, and the judgment on monthly interest is unfounded in law and must be corrected!
In order to safeguard the legitimate rights and interests of the second retrial applicant, according to the provisions of Item (1) of Article 200 of China's Civil Procedure Law that "there is new evidence enough to overturn the original judgment and ruling" and Item (2) that the basic facts identified in the original judgment and ruling are not proved by evidence, the second retrial applicant hereby applies for retrial and requests the retrial court to support the second retrial applicant's retrial request according to law.
I am here to convey
Sichuan Higher People's Court
Applicant for retrial 1:
Applicant for retrial 2:
date month year
Related Questions and Answers: Where can I get the application form of the People's Bank of China's loan card? Chapter I General Provisions Article 1 These Measures are formulated in accordance with the Administrative Licensing Law of People's Republic of China (PRC) and the Law of the People's Bank of People's Republic of China (PRC). In order to standardize the administrative license for issuing credit cards of the People's Bank of China, strengthen the management of the use of credit cards and protect the legitimate rights and interests of borrowers. Article 2 A loan card is a qualification certificate issued by the People's Bank of China to borrowers to apply for credit business with financial institutions. The People's Bank of China is unified as the credit card code, and the credit card code is unique. The loan card is held by the borrower, valid for 1 year, and is generally used in People's Republic of China (PRC). Article 3 The branches of the People's Bank of China shall implement administrative licensing for the issuance of credit cards, and supervise and manage the holding and use of credit cards. Article 4 The branches of the People's Bank of China shall follow the principles of openness, fairness and impartiality in issuing administrative licenses for loan cards and provide convenient services for borrowers. Chapter II Application and Approval of Loan Card Article 5 Before handling the credit business for the first time, the borrower shall apply for a loan card from the branch of the People's Bank of China where he is registered. Article 6 An applicant shall submit a written application in accordance with the format text of the loan card application formulated by the People's Bank of China, and submit the following materials: (1) A copy of the business license, a copy of the legal person certificate of a public institution or other registration certificates, and present the original; (2) A copy of the organization code certificate of People's Republic of China (PRC) and show the original; (3) A copy of the identity certificate of the agent; (four) a copy of the identity certificate of the main investor; (five) a copy of the tax registration certificate and produce the original; (6) Other materials as stipulated by the People's Bank of China. If the applicant is an enterprise legal person, in addition to the above materials, it shall also submit: (1) the articles of association of the enterprise legal person; (2) Certification materials on the source of registered capital; (3) photocopies of the identity documents of the legal representative and senior managers; (4) the balance sheet, income statement and cash flow statement of the previous year and the previous quarter when the enterprise as a legal person applied for a loan card. If the applicant is a legal person of a public institution, in addition to the materials listed in the first paragraph of this article, it shall also provide a copy of the identity certificate of the person in charge and financial statements. Article 7 The People's Bank of China shall publish the conditions, procedures and time limits of the administrative licensing matters related to the issuance of loan cards in the office and on the public website, as well as the catalogue of all application materials to be submitted and the electronic template of the application format text. Article 8 Applicants can download and fill in the electronic template of the application form on the public website, and submit the electronic template of the application form at the same time as submitting the written application materials. Article 9 An applicant shall accurately fill in and truthfully submit relevant application materials, and be responsible for the authenticity of the application materials. Article 10 If the application materials are complete and the form meets the requirements of these Measures, the branch of the People's Bank of China shall accept the application and review it. If the application materials are incomplete or the form does not conform to the provisions of these Measures, the branch of the People's Bank of China shall inform the applicant of the contents that need to be supplemented at one time. Eleventh audited, in line with the provisions of these measures and the applicant submitted an electronic template of the application, the branch of the People's Bank of China shall issue a loan card on the spot; In accordance with the provisions of these measures, but the applicant has not submitted the electronic template of the application, the branch of the People's Bank of China shall issue the loan card within 2 working days from the date of receiving the application materials. Article 12 Where a loan card is refused, the branch of the People's Bank of China shall explain the reasons in writing and inform the applicant of the right to apply for administrative reconsideration or bring an administrative lawsuit according to law. Chapter III Management and Use of Loan Cards Article 13 When a borrower receives a loan card, he may set the security certification mark of the loan card. When the borrower changes the safety certification mark of the loan card, it shall go to the branch of the People's Bank of China with the unit certificate and the identity certificate of the agent. Fourteenth branches of the People's Bank of China shall timely and completely provide the information generated by the borrower's application for a loan card and its updated information to the basic database of enterprise credit information. Article 15 If any application materials other than the borrower's balance sheet, profit and loss statement, cash flow statement or other financial revenue and expenditure statements change, the borrower shall report the relevant materials to the branch of China People's Bank within 65,438+00 working days from the date of change. Borrowers with loan cards can submit quarterly balance sheets, profit and loss statements and cash flow statements to the branches of the People's Bank of China on a quarterly basis to ensure that financial institutions know their relevant information in a timely, accurate and complete manner. Article 16 If the borrower needs to extend the validity period of the loan card, it shall apply to the branch of the People's Bank of China that issued the loan card 30 working days before the expiration of the validity period of the loan card. The borrower shall provide the following materials to the branch of the People's Bank of China when handling the renewal procedures: (1) A copy of the business license that passed the annual inspection by the administrative department for industry and commerce in that year, and show the original, a copy of the valid registration certificate of the institution and other borrowers, and the original; (2) A copy of the People's Republic of China (PRC) Organization Code Certificate that passed the annual examination in that year and present the original; (3) Other materials submitted when applying for a loan card. Article 17 The People's Bank of China shall announce the procedures and time limit for applying for extending the validity period of the loan card, as well as the complete material catalogue and electronic template of the application format text. In offices and public networks. Applicants can download and accurately fill in the electronic template of the application form on the public website, and submit the electronic template of the application form at the same time as submitting the application materials. Article 18 If the application materials and the electronic template of the application form submitted by the applicant are verified to be correct, the branch of the People's Bank of China shall go through the formalities for extending the loan card on the spot; If the application materials are verified to be correct, but the applicant fails to submit the electronic template of the application, the branch of the People's Bank of China shall complete the formalities for extending the validity of the loan card within 2 working days from the date of receiving the application materials. Article 19 If the loan card is lost or damaged, the borrower may apply to the branch of the People's Bank of China that issued the loan card with the unit certificate and the identity certificate of the agent, and the code of the renewed loan card remains unchanged. Article 20 A borrower shall not lease, lend or illegally transfer a credit card in other forms. Article 21 The branch of the People's Bank of China shall cancel the loan card held by the borrower under any of the following circumstances: (1) The borrower's business license is revoked according to law; (2) The borrower is declared bankrupt according to law; (3) The borrower is dissolved; (4) The borrower is revoked according to law; (5) The Borrower has other circumstances of termination according to law. Twenty-second financial institutions should check the borrower's loan card when handling credit business. Financial institutions shall not handle credit business for borrowers who have no credit card and whose validity period has not been extended or cancelled. Twenty-third any individual or organization that obtains or uses a loan card in violation of these measures has the right to report to the People's Bank of China, and the branches of the People's Bank of China shall promptly investigate and deal with it. Chapter IV Penalties Article 24 If a financial institution handles credit business for borrowers who have no loan card or whose loan card has not been extended or cancelled, the People's Bank of China will give them a warning, order them to make corrections and impose a fine of more than 654.38 million yuan but less than 30,000 yuan. Article 25 If the borrower conceals relevant information and provides false application materials to handle the loan card, the branch of China People's Bank will not accept or refuse to issue the loan card, and give a warning. Article 26 If a borrower obtains a loan card by cheating or other improper means, the branch of the People's Bank of China has the right to cancel the decision on administrative licensing of the loan card and give a warning. Article 27 If the borrower illegally transfers the loan card by leasing or lending, the People's Bank of China will give a warning and order it to make corrections. If no correction is made within the time limit, a fine of 1 0,000 yuan will be imposed. Twenty-eighth China people's Bank branch staff in violation of the provisions of these measures to issue a loan card to the borrower, shall be given administrative sanctions. Chapter V Supplementary Provisions Article 29 The term "credit business" as mentioned in these Measures refers to loans, guarantees, bank acceptance bills, letters of credit, letters of guarantee and other businesses that reflect the borrower's use of credit. The term "borrower" as mentioned in these Measures refers to a legal person or other organization that handles credit business with financial institutions engaged in credit business. The term "financial institutions" as mentioned in these Measures refers to policy banks, commercial banks (including foreign banks), urban credit cooperatives, rural credit cooperatives, trust and investment companies, finance companies, financial leasing companies, auto financing companies and other institutions approved by the financial supervision and management institutions in the State Council. Thirtieth approach by the people's Bank of China is responsible for the interpretation of. Article 31 These Measures shall come into force as of the date of promulgation. (End)