Shaanxi Haogong Law Firm Civil and Commercial Research Institute.Article Topaz.
If the main contract has been notarized and the supplementary agreement does not stipulate that notarization takes precedence, and both parties actually perform in accordance with the supplementary agreement, they cannot apply for enforcement on the basis of the supplementary agreement that has not been notarized or the main contract that has not been notarized.
1) Case No.: 2020) Hei 01 Zhiyi No. 454.
2) Case Circumstances:
In the case of a loan contract dispute between Sichuan Trust and Bojiadi Company, UBS Company, Scarbo, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu, Han and Xing Moumeng, Bojiadi Company, Sijiabo Company, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu and Han X filed an application for rejection of the enforcement of notarized creditor's rights documents. After this court accepted the case, a collegial panel was formed in accordance with law to conduct a review, and the review has now been concluded.
Bojiadi Company, Scarbo Company, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu, and Han Mou claimed that 1. The person subject to enforcement has not made a commitment to accept compulsory enforcement, and the notarization is seriously beyond the scope;2. The person subject to enforcement has not signed a guarantee contract for the Supplementary Agreement to the Debt Performance Agreement of the Gogol No. 1 Collective Capital Trust Plan (hereinafter referred to as the "Supplementary Agreement"). Request the court to dismiss the application for enforcement.
In order to prove its claim, Bojiadi Company, Scarbo Company, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu, and Han provided this court with the "Enforcement Certificate", "Supplementary Agreement" and other evidentiary materials.
Sichuan Trust argued that: 1. The notarization of the main contract and the guarantee contract in this case with enforcement effect did not affect the issuance of the enforcement certificate by the notary office in accordance with the law, and did not affect the enforcement of the case2. There is no need to sign a special guarantee contract and notarize it for the Supplementary Agreement3. If the ruling is not enforced, it will seriously damage the interests of all the persons subject to enforcement.
In order to prove its claim, Sichuan Trust provided this court with the Debt Performance Agreement of the Gogol No. 1 Collective Capital Trust Plan (hereinafter referred to as the "Debt Performance Agreement") and the Notarial Deeds, the Supplementary Agreement and the Notarial Deeds, the Mortgage Contract and the Notarial Deeds, five Guarantee Contracts and Notarial Deeds, the Notarization Application Form, the Receipt of the Notice of Acceptance of Notarization Matters, the Notice on the Application for Granting the Enforceable Effect of the Creditor's Rights Document and the Notarization of the Enforcement Certificate, and the Recognition of the Parties. Execution Certificate", on-site**, transfer voucher, mailing voucher and other evidentiary materials.
This court ascertained that on March 24, 2020, the Chengdu Guoli Notary Office of Sichuan Province issued the (2020) Sichuan Guo Notary Zhi Zi No. 66 "Enforcement Certificate". Subject of enforcement: 1. The total amount of loan principal, penalty interest and liquidated damages is RMB 2304416438 yuan. Among them: the loan principal is 200 million yuan, and the interest is 916164 until December 31, 201938 yuan, and the interest after that is calculated according to the standard of [interest calculation method: principal * interest-bearing days * 11% 365 days = interest] until the principal and interest and liquidated damages are repaid, and the liquidated damages are temporarily calculated to December 31, 2019 to 2,128,000 yuan, and the liquidated damages after that are calculated according to the standard of [liquidated damages calculation method: principal * interest-bearing days * 7/10,000 = liquidated damages] until the principal and interest and liquidated damages are paid off. The total amount of the above interest and liquidated damages shall be calculated and paid according to the annual interest rate of 24% of the loan supported by law, that is, according to the standard of [total calculation of interest and liquidated damages: principal * interest-bearing days * 24% total interest and liquidated damages for 365 days] until the principal and interest and liquidated damages are repaid. 2. Bear the notary fee of 1,000 yuan, as well as other expenses incurred for the realization of creditor's rights. 3. Execute the real estate located on the 1-1st floor of No. 27, Xisandao Street, Daoli District, Harbin City [the mortgage certificate number is black (2017) Harbin Real Estate Certificate No. 0022286] provided by Harbin UBS Investment Management Consulting***, and the price obtained from the execution will be repaid first. On September 1, 2020, Sichuan Trust applied to this court for enforcement in accordance with the execution certificate.
It was also ascertained that on April 28, 2017, Mr. Han signed the "Debt Performance Agreement" with Sichuan Trust and Bojiadi Company, which stipulated issues such as the transfer of the subject creditor's rights, the confirmation of trust claims, the payment of interest, the repayment of principal, the collection of funds, the guarantee and supervision of debts, dispute resolution and notarization. Among them, Article 16 Dispute Settlement stipulates that the parties to the agreement shall settle disputes related to the validity, performance, breach of contract and termination of this Agreement through friendly negotiation, and if the negotiation fails, the people's court with jurisdiction in the domicile of Sichuan Trust shall have jurisdiction to settle the dispute. Article 17, Paragraph 3: The agreement on compulsory notarization in this article takes precedence over the dispute resolution and enforcement in Article 16 of this Agreement. However, Sichuan Trust still has the right to file a lawsuit with the people's court to resolve the dispute, and the project company has no objection to this. After the agreement was signed, Bojiadi Company, Scarbo Company, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu, and Han Mou signed the "Guarantee Contract" and "Notarial Certificate" with Sichuan Trust respectively.
On April 26, 2018, Sichuan Trust and Bojiadi Company signed the Supplementary Agreement, which changed the original agreement on the amount of debt, repayment period, interest, dispute resolution and other matters. Article 4 stipulates that disputes arising during the performance of this supplementary agreement shall be settled by the parties through negotiation, and if the negotiation fails, the people's court with jurisdiction in the domicile of the creditor (Sichuan Trust) shall have jurisdiction. Unless otherwise provided in the effective judgment, the expenses actually paid by one party for asserting rights (including but not limited to litigation fees, attorney fees, preservation fees, appraisal fees, travel expenses, etc.) shall be borne by the losing party. During the litigation, the non-disputed provisions of this Agreement shall continue to be enforced, and neither party shall refuse to perform any of its obligations under this Agreement on the grounds of resolving the dispute. Article 5: All terms used in this Supplement shall have the same meanings as in the original Agreement, unless otherwise specified. After this Supplemental Agreement comes into effect, it shall become an integral part of the original Agreement and shall have the same legal effect as the original Agreement. In the event of any inconsistency between the original agreement and this Supplemental Agreement, the provisions of this Supplemental Agreement shall prevail, and the provisions of the original Agreement shall prevail for matters not agreed in this Supplemental Agreement.
This court holds that Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Notarized Creditor's Rights Documents stipulates that the people's court shall rule not to accept a creditor's application for enforcement of a notarized creditor's rights document under any of the following circumstances;If it has been accepted, it shall be ruled to reject the application for enforcement: (1) the obligatory instrument is an instrument that cannot be notarized to give enforcement effect;(2) The notarized creditor's rights document does not contain the debtor's commitment to accept compulsory enforcement;(3) The subject of rights and obligations or the content of payment indicated in the notarized testimony is not clear;(4) The creditor fails to submit the execution certificate;(5) Other situations that do not meet the requirements for acceptance. In this case, Sichuan Trust signed the Debt Performance Agreement with Mr. Han and Bojiadi Company, and signed the Guarantee Contract and Notarial Deed with Bo Jiadi Company, Scarbo, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu and Mr. Han respectively, and at the same time agreed that the method of dispute resolution was the priority of compulsory enforcement of notarized creditor's rights documents, while the Supplementary Agreement signed between Sichuan Trust and Bojiadi Company did not stipulate that the method of dispute resolution included the enforcement of notarized creditor's rights documents. At the same time, it is stipulated that if the Supplemental Agreement is inconsistent with the Debt Performance Agreement, the Supplemental Agreement shall prevail, and the guarantee contract has not been signed and notarized with Scarbo, Zhang Mouyang, Xing Mouhua, Chen Mouying, Zhang Mouchun, Zhang Qiu, and Han. In this case, the subject matter of enforcement and the interest were all enforced in accordance with the Supplementary Agreement, but Sichuan Trust violated the above provisions by failing to sign and notarize a contract with enforceable content with other guarantors other than Bojiadi Company for the Supplementary Agreement. Therefore, Sichuan Trust's application for enforcement should be dismissed. In accordance with the provisions of Article 5 (2), (5) and Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Notarized Creditor's Rights Documents, the ruling is as follows:
The application for enforcement of Sichuan Trust *** was rejected.
If they are not satisfied with this ruling, they may apply to the Heilongjiang Provincial High People's Court for reconsideration within 10 days from the date of service of this ruling.
In this case, the Debt Performance Agreement signed between the trust company and Bojiadi Company and Mr. Han stipulated that the dispute resolution method was the priority of the enforcement of notarized creditor's rights documents, and the supplementary agreement did not stipulate that the dispute resolution method included the enforcement of notarized creditor's rights documents. At the same time, it is agreed that in the event of any inconsistency between the Supplemental Agreement and the Debt Performance Agreement, the Supplemental Agreement shall prevail and no notarization shall be conducted. In this case, the subject matter of enforcement and interest were all enforced in accordance with the Supplementary Agreement, and the trust company did not sign and notarize the enforceable contract with other guarantors in respect of the Supplementary Agreement, which violated Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Notarized Creditor's Rights Documents. Therefore, the trust company's application for enforcement should be dismissed.
The Supplemental Agreement has actually constituted a modification of the original contract and cannot be applied for enforcement on the basis of the original notarized creditor's rights documentAt the same time, since the Supplemental Agreement has not been notarized, the creditor cannot apply for enforcement under the Supplemental Agreement.