Application for civil retrial
Applicant (appellant in the original trial, plaintiff in the first instance).: Cai Moumou, male, born on September 19, 1964, Han nationality, from a certain county in Jiangxi Province, living in XX District, XX City, mobile phone: 133xx9766xx, ID number: xx21x3196409190xx5.
Respondent (appellee of the original trial, defendant of the first instance).Wu Moumou, male, born on January 14, 1980, Han nationality, from a certain county in Jiangxi Province, living in Jiangjun Avenue, a certain town, a certain county, a certain city, Jiangxi Province, citizenship number: xx2133198001140xx7, mobile phone: 18x7997xx98.
In the case of a private lending dispute between the retrial applicant Cai XX and the respondent Wu XX, the applicant was dissatisfied with the (2019) Gan XX Min Zhong No. 2748 Civil Judgment rendered by the Intermediate People's Court of XX City, Jiangxi Province, and the (2019) Gan XXXX Min Chu No. 1002 Civil Judgment rendered by the People's Court of XX County, Jiangxi Province, and applied to your court for a retrial in accordance with the provisions of Article 207 (1) and (6) of the Civil Procedure Law of the People's Republic of China.
Application Request
1. Request that the case of a private lending dispute between the retrial applicant Cai XX and the respondent Wu XX be filed for retrial and a judgment to revoke the (2019) Gan XX Min Zhong No. 2748 civil judgment made by the Intermediate People's Court of XX City, Jiangxi Province, and the (2019) Gan XXXX Min Chu No. 1002 Civil Judgment made by the People's Court of XX County, Jiangxi Province.
2. The judgment of the respondent Wu Moumou to immediately repay the principal of the loan of 2.3 million yuan and the corresponding interest (the interest before April 27, 2014 was 690,000 yuan;Interest is calculated at a monthly rate of 2% from April 28, 2014 to August 30, 2019From September 1, 2019, the interest rate will be 128% until the end of the payment).
3. The respondent shall bear the litigation costs of the first and second instance of this case.
Facts & Reasons
The original second-instance judgment "This court held that the appellant Cai, as a person with full civil capacity, should have known the legal consequences of signing the Agreement with others, and the appellant Cai, the appellee Wu and the outsider Li signed the Agreement on November 6, 2016, clearly stipulating that "the total amount owed by Wu to Li is RMB 1.9 million." Previously, Cai Moumou and Wu Moumou's creditor's rights and debts were written off. The creditor's rights and debts of Li and Cai were also written off", and the receipt issued by the appellant Cai to the appellee Wu also stated that the claims and debts of the appellee Wu and the appellant Cai were all settled;The appellee Wu Moumou returned 100,000 yuan on the day of signing the Agreement, and it was Li Moumou, who was not involved in the case, who issued a receipt to the appellee Wu Moumou, and the appellant Cai Moumou signed the receipt as a person present, which was sufficient to prove that the appellant Cai's previous creditor's rights to the appellee Wu Moumou had been transferred to the outsider Li. If the outsider Li Moumou dies of illness, the heirs of his estate enjoy the creditor's rights in accordance with the law, and the appellant Cai Moumou has no evidence to prove that the heirs of the estate of the outsider Li Moumou have transferred the creditor's rights to him, so the appellant Cai Moumou has no factual basis for requiring the appellee Wu Moumou to return the loan of 2.3 million yuan and the corresponding interest to him, and it is not improper for the court of first instance not to support the appellant Cai's litigation claim, and this court upholds that "the facts identified have been overturned by new evidence, and the retrial should be changed in accordance with law."
1. The facts ascertained in the original second-instance trial were inferential determinations made based on the inability of Li X, another heir of the outsider Li XX, to be contacted, resulting in the inability to determine the key facts of the case, and the current heir of the outsider Li XX has been contacted (May 9, 2022), and Li X has confirmed that there is no creditor-debtor relationship between the retrial applicant Cai XX and the outsider Li XX, and the purpose of signing the Agreement is only to facilitate the outsider Li XX to assist the retrial applicant Cai XX in collecting debts. In the facts determined by the original XX County People's Court, Huang XX, another heir of the outsider Li XX, also confirmed that there was no creditor-debtor relationship between the outsider Li XX and the retrial applicant Cai XX, and the purpose of signing the "Agreement" was only to facilitate the outsider Li XX to assist the retrial applicant Cai XX in collecting debts. Therefore, the Agreement does not have the effect of assignment of creditor's rights, and the actual creditor of this case is still Cai Moumou, the applicant for retrial.
2. In the loan relationship between the retrial respondent Wu XX and the retrial applicant Cai XX, Wu XX still has part of the loan principal that has not been returned to Cai XX (retrial applicant Cai XX claims that the loan principal is 2.3 million yuan, and the retrial respondent Wu XX claims the loan principal of 1.8 million yuan), this fact is not disputed by both parties, if the retrial respondent Wu XX obtains a huge amount of wealth out of thin air according to the results of the original judgment, and there is no need to return it at all. This is extremely unjust and extremely wrong. Li's heirs, Huang and Li X, both claimed that the loan was still Cai's. There is no effect of assignment of claims.
In summary, the appearance of key witnesses in this case is sufficient to change the facts determined by the original trial, and the witness was only contacted on May 9, 2022, according to Article 207 of the Civil Procedure Law of the People's Republic of China, "(1) there is new evidence sufficient to overturn the original judgment or ruling......;6) The original judgment or ruling was truly erroneous in the application of law;Article 212: "A party's application for retrial shall be submitted within 6 months after the judgment or ruling takes legal effect;Where there are circumstances provided for in items 1, 3, 12, or 13 of Article 207 of this Law, it shall be submitted within 6 months from the date on which it was known or should have been known", and an application for a retrial is hereby made to your court, and the retrial procedures are requested to be initiated in accordance with law and the judgment changed in accordance with law.
Sincerely. Intermediate People's Court of XX City.
Applicant: 2022.01/2022.