In daily life, based on the so-called "humane society", many people seek their own interests in matters that cannot be easily achieved or cannot be achieved at all, such as enrollment, employment, job transfer, handling violations, contracting projects, and fishing for people, through improper methods such as entertaining guests and giving gifts, spending money to find people, etc., and even some people fabricate certain relationships and channels to defraud the trustee of money, which seriously harms social fairness and disrupts social order.
Entrusting someone to do things, commonly known as "finding a relationship" or "going through the back door", is generally a party who pays money to ask others to help dredge up the relationship in order to achieve some (illegal) interests and purposes. If the request is not completed or repents after being reached, and the other person is required to return the money or property, but the other person refuses to return the money for some reason, a dispute arises. Based on the analysis of case handling experience and relevant precedents retrieved on the Internet, in current trial practice, due to the different matters requested, the different places involved in the case, and the differences in the trial philosophy and value orientation of judges, the adjudication results and trial orientation of local courts are not consistent. The purpose of this article is to clarify the latest adjudication trends and rules by sorting out the identification and trial ideas of such cases, combined with the adjudication results of some regions, so as to provide reference for relevant entities in regulating their own behavior in accordance with the law.
1. The main legal relationships involved in the handling of affairs by the trustee
1.Unjust enrichment. If one party has no lawful reason or basis to obtain relevant benefits, the party whose interests are damaged may request the party who gains the benefits to return the benefits obtained.
2.Entrustment contractual relationship. If one party entrusts the other party to handle a certain matter and achieve a certain purpose, because the entrusted party has not completed the entrusted matter, the collected money shall be returned to the client.
3.Intermediary contractual relationships. If an intermediary introduces information or channels to one party to achieve a certain purpose, and one party pays a fee, the fee should be refunded because the matter is illegal or the act is found to be invalid.
4.Private lending relationship. If there is no agreement between the two parties to borrow, one party asks the other party to handle a certain matter, and because the matter is not completed, the other party issues an IOU to the party, and then the party sues for return in a private loan dispute.
II. The current court's determination of the conduct of unlawful solicitation of affairs
In civil cases, if the matter is requestedLegalIf the matter is not completed, the defendant is ordered to return the costs. If I ask for a matterIllegalHowever, the parties did not have the purpose of illegal possession, and it is generally determined on the basis of unjust enrichment, entrustment contracts, intermediary contracts, private lending, etc. The court found that the solicitation was broadly divided into three categories: 1. The solicitation was illegal and the contract was invalid, and the defendant was ordered to return the solicitation fee;2. The matter of the request is illegal, violates public order and good customs, does not fall within the scope of civil case trial, and shall not be protected by law, and shall not be accepted or rejected in accordance with law;3. If the entrustment is illegal or suspected of violating the law or committing a crime, the prosecution shall be dismissed, and the criminal clues and other materials shall be transferred to the public security organs.
3. Whether or not the solicitation involves the crime of fraud
I approve the trust service typeFraudIt is usually necessary to take into account the following factors: whether the identity is fictitious, whether the victim has the ability to handle the matter, whether the victim has fabricated evidence to deal with the victim, whether there is actual behavior, whether the collected funds are used for the entrustment, whether the refund is made when the service is not completed, the property status at the time of the request, whether the victim has delivered the property, the performance of the perpetrator after the incident, the situation and role of the third party, etc. These factors can be mainly classified into two categories, namely, the essential characteristics of the crime of fraud: the use of deceptive means to illegally take possession of property and the evasion of the obligation to return property by various means. For example, in the crime of entrusting services, the perpetrator fabricates an identity, fictitious ability to do things, conceals the status of property, fabricates evidence, does not do substantive work, and does not use funds for entrusting services, etc., all fall under the first point of "using deceptive means to illegally occupy property". However, not refunding the money when the work is not done, denying the receipt of property, using the collected funds for squandering, breaking the law and committing crimes, and fleeing and losing contact after the case is discovered, etc., all belong to the second point of "evading the obligation to return by various means".
In a criminal case suspected of fraud, the defendant clearly knew that he did not have the ability to handle the request for the victim, and lied to the victim that he could handle it in order to gain the victim's trust, but did not carry out the act of handling the request after collecting the service fee, and the fraudulent funds were not used to handle the request matter, such as for personal repayment of debts, If the defendant clearly knows that the matter cannot be operated, but still continues to fabricate lies to deceive the victim that the matter is being handled and defrauds the victim's property, the crime of fraud is constituted, and the property obtained by fraud is to be returned to the victim.
If the defendant makes efforts to entrust the matter and reconciles the relationship, but is unsuccessful, and it is found that there is no fraud and there is no purpose of illegal possession, the crime of fraud is not constituted.
Fourth, the issue of whether the request for the return of the paid request fee can be supported by the court
There are many controversies in current judicial practice as to whether or not to support the return of the property of the trustee if the request for entrustment is not successful, and courts in different places have different views on this, and sometimes different judges of the same court make different judgments on similar cases.
One view was that the property should be returned. Article 157 of the Civil Code stipulates that after a civil juristic act is invalid, revoked, or determined to be ineffective, the property acquired by the actor as a result of the act shall be returnedwhere it cannot be returned or there is no need to return it, compensation shall be made at a discounted price. The party at fault shall compensate the other party for the losses suffered thereby;Where all parties are at fault, they shall each bear corresponding responsibility. Where the law provides otherwise, follow those provisions. Accordingly, property should be returned regardless of whether the civil act violates the mandatory provisions of laws and administrative regulations or public order and good customs.
Another view is that property should not be returned. The doctrine of refusal of protection is adopted, and it is held that the party concerned has put himself outside the legal norms because of his violation of the prohibitive provisions of the law and his behavior contrary to public order and good customs, and there is no need for protection, so the payment for illegal reasons cannot be returned.
5. Search and compilation of relevant cases
Case 1: The trustee failed to apply for a Beijing hukou, and the court ruled that the contract was invalid
Basic facts of the case:The plaintiff, Ms. Wang, claimed that she had been recommended to add Mr. Ge's *** consultation on matters related to the handling of the Beijing hukou, and upon inquiry, Mr. Ge said that although Ms. Wang and her children were not currently eligible to obtain a Beijing hukou, they had a way to apply for a Beijing hukou for them, paying the advance payment first, and then paying the balance later, and explained the "successful case". The next day, Ms. Wang, in accordance with Mr. Ge's instructions, transferred money to the bank account of Mr. Zhang, who was not involved in the case. Ms. Hou Wang asked Mr. Ge many times about the progress of the household registration, and Mr. Ge said that he was in the process of handling the account. At the end of May 2021, Mr. Ge made it clear that he could not apply for an account. Ms. Wang then requested Mr. Ge for a refund, but Mr. Ge refused. Later, Ms. Wang sued Mr. Ge to the court, demanding that Mr. Ge return the deposit and pay interest. The defendant, Mr. Ge, argued that he was not the actual payee, but only an intermediary who helped Ms. Wang build a bridge between Ms. Wang and Mr. Zhang, who was not involved in the case, and was not the other party to the entrustment contract, so he should not be liable for the return of the advance payment and the payment of interest.
Court Hearing:After the trial, the Haidian court held that although Ms. Wang and Mr. Ge had not signed a written contract, the two parties had reached an agreement that Mr. Ge would handle the household registration for Ms. Wang and her children, so the two parties had established an entrustment contract relationship. Prior to the occurrence of the dispute, Mr. Ge had never indicated to Ms. Wang that he was an intermediary, Ms. Wang had not been in contact with Mr. Zhang beforehand, and Ms. Wang's payment to Mr. Zhang was also made in accordance with Mr. Ge's instructions, so Mr. Ge and not Mr. Zhang were the counterparty to the contract, and Mr. Ge should bear the corresponding contractual liability. At the same time, because the entrustment of the two parties violated China's household registration management regulations and disrupted the order of household registration management, the entrustment contract involved in the case should be invalid, and in this case, Ms. Wang's request for Mr. Ge, as the other party to the contract, to return her money was legally valid, but because Ms. Wang was also at fault, her claim for interest loss was not supported. The court ultimately rendered the above decision.
Case 2: The court did not accept or dismiss the lawsuit if the trustee failed to apply for admission to a prestigious primary school
Basic facts of the case:Yu wanted his child to study in a prestigious primary school, and Yu heard that Brother Qiang was "Lu Ziye", so after a brief understanding, he paid Brother Qiang 280,000 yuan in cash as "service fees" and "benefit fees". But Yu waited for a long time, but did not wait for the good news that the child was successfully enrolled, Yu asked Brother Qiang to return the above fees, Brother Qiang took the initiative to return 80,000 yuan, the remaining 200,000 yuan Brother Qiang has been unable to return, the two met again, that is, in the trial court of the Nanguan Court.
Court Hearing:Through the judge's detailed questioning, the parties had no objection to the facts of the case. The judge then solemnly explained the law to both parties, and the entrusted matter between the parties was for the purpose of pursuing the illegal interests of illegal admissions, which disrupted the normal order of admissions and harmed the public interest that other students could be properly admitted. In accordance with the new judicial concept and adjudication rules, the people's courts will not accept such cases, and those that have already accepted will rule to dismiss the lawsuit. The issue of returning the 200,000 yuan fee should be resolved through negotiation between the two parties.
In the case of such a "solicitation" dispute, in accordance with the previous adjudication rules, in the case of a request for the return of the solicitation fee arising from such an improper solicitation in pursuit of illegal interests, the people's court will find the entrustment contract invalid because the entrusted matter violates public order and good customs, and the property obtained as a result of the invalid contract shall be returned. However, this kind of adjudication method has virtually made a kind of "psychological endorsement" for the trustee, even if the entrustment matter is not completed, the principal of the fee can still be recovered through the litigation procedure, and the trustee "why not". In order to lead a good atmosphere in society with judicial righteousness and carry forward the core values of socialism, the people's courts have updated the adjudication rules, and the spiritual core of the new adjudication rules is that cases in which the pursuit of illegal interests is unsuccessful and the request for a refund of the solicitation fee is not accepted or the prosecution is dismissed.
Case 3: The court rejected the litigation claim after the formal preparation of the trustee was not completed
Basic facts of the case:Plaintiff Li and defendant Zhang are friends. In a certain conversation, Zhang said that he could help with the formal establishment of a company. Subsequently, Li transferred 300,000 yuan to Zhang and entrusted him to handle it. After receiving the remittance, Zhang issued a "receipt" to Li, and emphasized that if it was not done, a full refund would be given. Later, because the work was not successful, Zhang successively returned 160,000 yuan to Li, but the remaining 140,000 yuan has not been returned. During this period, Zhang issued a "commitment", promising to pay off the remaining money for Li's work before the end of December 2020, but the promise has not been fulfilled. Li then sued Zhang to the court, demanding that Zhang return the remaining fees and pay interest and litigation costs, totaling more than 15 yuan.
Court Hearing:The People's Court of Nanchang High-tech Zone held that China's laws stipulate that parties to conclude and perform contracts shall abide by laws and administrative regulations, respect social morality, and shall not disturb the social and economic order or harm the public interest. The acts of the plaintiff and the defendant seriously violated the system of equal selection and employment established by Chinese law, and was not protected by law, so the commitment of both parties was invalid. Li's claim that Zhang returned 140,000 yuan to him and paid interest has no basis in law, and this court does not support it. In summary, the judgment rejected all of the plaintiff Li's claims.
Plaintiff Li appealed on the following grounds:1. Li's request for Zhang to return 140,000 yuan was based on the "Letter of Commitment" issued by Zhang to Li, which was Zhang's unilateral commitment, and Zhang had the obligation to perform. Although the agreement between Li and Zhang on handling relevant work does not comply with the provisions of the law and is invalid. However, Zhang's promise to return the money to Li was indeed his unilateral commitment, and it was not invalid because the previous act was invalid, and Zhang had the obligation to fulfill the promise. 2. Even if the contract is invalid, the legal consequence of the invalidity of the contract is to return the money, not that the party receiving the money can not refund the fees collected, and Zhang also has the obligation to return the money.
The Nanchang Intermediate People's Court held after trial, Li paid money and hoped to enter a company to solve the formal establishment work, the act involved in the case was an illegal solicitation act, and the resulting dispute was not a civil legal relationship, Li tried to achieve his own goals through improper channels, and this kind of behavior itself contributed to the unhealthy atmosphere in society, disrupted social order, violated the relevant laws and regulations of our country, and harmed the public interest, and the purpose and means of his behavior were illegal and should not be protected by law. The court of first instance held that the act was not protected by law, and the commitment of both parties was invalid, and did not support Li's claim that Zhang should return the fee of 140,000 yuan and pay interest, which was not improper, and this court upheld it. Li's other opinions have no factual or legal basis and are not accepted by this court. In summary, the appeal was rejected and the original judgment was upheld.
Case 4: The court dismissed the lawsuit when the client helped to handle the job transfer for the family
Basic facts of the case:In September 2021, the plaintiff Liu met Zhao through a friend's introduction, and learned that Zhao was an employee of a state-owned enterprise, so he asked Zhao to help him handle the job transfer for his daughter, and Zhao promised to handle the work transfer for Liu's daughter, but he needed to "dot" the fee, and asked Liu to provide 300,000 yuan. On September 20, 2021, the plaintiff Liu transferred 300,000 yuan to Zhao, and on September 23, 2021, the defendant issued a receipt to the plaintiff. Later, Zhao informed Liu that he could not handle the job transfer for his daughter. The plaintiff Liu repeatedly asked the defendant Zhao for the commission fee to no avail, so he filed a lawsuit with the court to demand that the defendant Zhao return the money.
Court Hearing:The Shenmu City People's Court held after trial that according to Article 8 of the Civil Code of the People's Republic of China, civil entities engaged in civil activities must not violate the law and must not violate public order and good customs. In this case, in order to handle the work transfer of his children, Liu gave the trustee Zhao's property in an attempt to achieve his illegal goals through improper channels, and this kind of behavior created conditions for some personnel to use their positions to facilitate the extortion of property, promoted unhealthy trends in society, disrupted social order, violated the provisions of China's relevant laws and policies, and harmed the public interest.
Case 5: The court rejected the claim when the client failed to help deal with the traffic violation
Basic facts of the case:Li is the owner and driver of a truck, and often travels back and forth from Shandong to Guangdong to engage in cargo transportation. Li had a traffic accident during a cargo shipment, and his driver's license had to be downgraded from Class B to Class C, and once downgraded, he could not drive a truck to continue to run the transportation. So Li found Wang through the introduction of others, Wang claimed that he had a wide range of connections, had acquaintances working in a public security department, and was full of confidence in handling this kind of violation. In order to reassure Li, the two parties also signed an agreement to guarantee that if the violation is not completed, the "coordination fee 1."20,000 yuan". Afterwards, Li contacted Wang without waiting for a reply for many days, and Wang first said that he was already handling it, and then always found a reason to prevaricate, so that the shutdown information was not returned. Under repeated questioning, Wang admitted that he had not done anything, and said that the money received had been paid to others, and he had no money to return it. The negotiation between the two parties failed, and Li had no choice but to sue the court, demanding that Wang refund the fees collected as agreed in the agreement.
Court Hearing:An entrustment contract refers to a contract in which the principal and the trustee agree that the trustee will handle the affairs of the principal. If the trustee completes the entrusted affairs, the trustee shall pay remuneration to him in accordance with the agreement. During the trial of this case, there were two opinions on whether Li's claim could be supported. One opinion held that the litigation claim should be upheld on the grounds that the client did not complete the entrustment after accepting the entrustment, and should return the fees paid by the client in accordance with the agreement. Another opinion is that Li's litigation claim should not be supported, on the grounds that the lawful civil act of requesting entrustment should be handled in accordance with the entrustment contract relationship. In this case, Li entrusted another person to deal with the matter of deducting points and fines for traffic violations and paying the corresponding remuneration, which on the surface was an entrustment contract relationship, and his behavior was essentially a transaction of money and power, and the civil subject engaged in activities and violated the provisions of the law, and would inevitably bear civil liability, and the purpose of the entrustment was not to pursue his illegal acts, and his behavior obviously harmed the public interest, undermined social public order, and violated public order and good customs, so it could not be protected by law, and the court should make a judgment to reject his litigation claim. The court eventually adopted the second opinion.
Case 6: The trustee helped to dredge the relationship to contract the project, and the court constituted a "debt paid for illegal reasons", and the act of requesting the entrustment was invalid
Basic facts of the case:The plaintiff Li and the defendant Wu are friends, the plaintiff and the defendant are both engaged in the construction industry, the defendant told the plaintiff that he has a construction project, so he asked the plaintiff whether he was willing to contract the project, and the plaintiff said that he was willing to contract. After negotiation between the two parties, the plaintiff transferred 50,000 yuan to the defendant by WeChat transfer, which was the relevant expenses of the plaintiff asking the defendant to provide assistance in order to achieve the purpose of contracting the project. Later, the defendant failed to hand over the above project to the plaintiff to successfully contract, and the defendant believed that the plaintiff was unable to actually undertake the project due to the plaintiff's own reasons. The plaintiff demanded that the defendant return the money of 50,000 yuan.
Court Hearing:After trial, the Wuzhi County People's Court held that civil entities engaged in civil activities must not violate the provisions of the law and must not violate public order and good customs. This case is a debt formed by means that violate social order and good customs, such as entrustment of favors and finding relationships, and constitutes "".Debts paid for unlawful reasonsFirst,Although the two parties reached a consensus on the basis of free expression of will and behavior, and formed a de facto entrustment relationship, the purpose of which was to successfully contract the project by dredging the relationship, the civil acts of the plaintiff and the defendant involved in the case distorted the normal competition mechanism, violated the fair and just competition order, and also violated public order and good customs, and the solicitation between the plaintiff and the defendant should be invalid. Second,Whether or not the solicitation is completed or not is not a key fact, regardless of whether the solicitation between the two parties is completed or what stage it has reached, the solicitation should be invalid because of the involvement in the case. Third,The act of entrustment between the plaintiff and the defendant is invalid, and if all the property is returned after the invalidation, it may lead to a vicious circle, and the worst effect for the requesting party is "no loss, continue next time";As far as the entrusted party is concerned, it must strive to realize the request in order to avoid the return of fees in the future, which increases the probability that the entrusted party will achieve the ultimate goal;On the contrary, if the illegal act is curbed in advance, a good behavior model is established for the society, the legal consequences of the act are clarified, the illegal payer is worried, and the trade-off between risk and benefit is finally abandoned, so as to eliminate the illegal purpose of the request. In this case, both the plaintiff and the defendant knew that it was illegal to contract the project by dredging the relationship, and both parties were at fault in this regard, and the defendant was determined to return 20,000 yuan to the plaintiff in accordance with the law in light of the circumstances of the case.
Looking at the above cases, it can be seen that if the request isLegal mattersIf the matter is not completed, the court will generally support the claim for full or partial return based on the specific analysis of the case. If yesIllegal MattersSome courts have ruled to return all or part of the costs, but most courts have ruled to dismiss the lawsuit, or transferred the lawsuit to the public security organ for handling after rejecting the lawsuit, or ruled to reject the claim, but did not support the claim for return. In criminal cases, when sentences and fines are imposed, restitution of economic losses is generally ordered, but there are also judgments where the money is confiscated by the state. The new adjudication rules (inadmissibility or dismissal of lawsuits, rejection of litigation claims) uphold the core values of socialism, which is not only a denial of some "unspoken rules" in society, but also a warning to some trustees who are lucky that the law protects legitimate rights and interests, not illegal acts and illegal transactions.
Based on the above analysis, for handling legal matters, it is necessary to sign a contract with relevant entities with clear rights and obligations, keep the payment voucher, and entrust professionals to handle matters involving professionalismFor illegal matters, it is recommended not to have a fluke mentality, and a large number of cases prove that the probability of such illegal entrustment matters is very high!Citizens carrying out civil activities shall respect social morality and must not harm the public interest or disrupt social public order. For major matters related to one's own interests, one should promptly and comprehensively understand the relevant laws and policies, do not trust others, and should also be vigilant and vigilant against "people around you" and "acquaintances", consciously resist negative social trends such as "trusting relationships" and "going through the back door", and persist in handling matters in accordance with laws and regulations through proper channels, and reasonably and lawfully realize their own demands.
Attached: Links to legal provisions
Civil Code of the People's Republic of China
Article 8Civil entities engaging in civil activities must not violate the law or violate public order and good customs.
Article 143Civil juristic acts that meet the following conditions are valid: (1) the actor has the corresponding capacity for civil conduct;(2) The meaning is true;(3) Do not violate the mandatory provisions of laws and administrative regulations, and do not violate public order and good customs.
Article 153Civil juristic acts that violate the mandatory provisions of laws and administrative regulations are invalid. However, the mandatory provisions do not lead to the invalidity of the civil juristic act.
Civil juristic acts that are contrary to public order and good customs are invalid.
Article 157After a civil juristic act is invalid, revoked, or determined not to take effect, the property acquired by the actor as a result of the act shall be returned;where it cannot be returned or there is no need to return it, compensation shall be made at a discounted price. The party at fault shall compensate the other party for the losses suffered thereby;Where all parties are at fault, they shall each bear corresponding responsibility. Where the law provides otherwise, follow those provisions.
Article 919An entrustment contract is a contract in which the principal and the trustee agree that the trustee will handle the affairs of the principal.
Civil Procedure Law of the People's Republic of China
Article 2The tasks of the Civil Procedure Law of the People's Republic of China are to protect the parties in exercising their procedural rights, to ensure that the people's courts ascertain the facts, distinguish between right and wrong, correctly apply the law, hear civil cases in a timely manner, confirm the relationship between civil rights and obligations, sanction civil violations, protect the legitimate rights and interests of the parties, educate citizens to consciously abide by the law, maintain social and economic order, and ensure the smooth progress of socialist construction.
How to determine the crime of entrustment fraud?Guidelines for the Criminal Prosecution Process of the Three Major "Solicitation" Fraud Routines and Anti-Fraud Countermeasures (taking economic crimes as an example, with a sample criminal indictment).If you want to know more practical legal knowledge or have legal questions to consult, please pay attention to the lawyer's headline number - "Zhang Zhanfu lawyer", WeChat *** Fuyang lawyer Zhang Zhanfu "or Baijia number" - "Fuyang lawyer Zhang Zhanfu".