"Just because the signature on the repayment agreement was added by others to the words 'guarantor', I have been a 'laid' for 3 years, if it weren't for the procuratorate to find out the truth and restore the truth, I don't know what day this unjust debt will be back! Recently, Sun came to the Baoying County Procuratorate of Jiangsu Province to express his gratitude to the prosecutor who undertook it.
Apply for supervision
"Pseudonym" is annoying
I just acted as a legal representative in accordance with Zheng's request, how could I agree to guarantee such a large debt to the company? On July 6, 2021, Sun came to the 12309 Procuratorial Service Center of the Baoying County Procuratorate and indignantly told the prosecutor what happened to him.
Sun told the prosecutor that in late October 2020, when the court's enforcement judge went to his hometown to enforce the law, he knew that he had become the person subject to enforcement, and after going to the court to inquire about the case materials, he learned that he had been involved in a lawsuit.
It turned out that Sun followed Zheng to do business, and at the same time served as Zheng's driver. As the business became bigger and bigger, Zheng decided to set up a communication company, but because he was listed as a dishonest person subject to execution by the court at that time, he could not serve as the legal representative of the communication company, so Zheng proposed to let Sun name the legal representative of the communication company, and said that he would not increase the workload, but when he needed to sign a contract with the outside world, Sun would just sign in the name of the legal representative, and there would be no risk, and promised to give Sun a salary increase. Sun thought that Zheng usually treated him well, so he agreed.
On January 9, 2020, the communication company was sued by the creditor Li, demanding the repayment of 840,000 yuan in arrears and 3% of the arrears in accordance with the "Repayment Agreement" signed by both parties, and requiring Sun and Zheng to bear joint and several liabilities as guarantors. Because the litigation materials at that time were served by public notice, Sun was unable to participate in the trial defense. The court made a judgment on September 28, 2020: the communication company repaid the plaintiff Li 840,000 yuan in arrears and paid liquidated damages 2520,000 yuan; Zheng and Sun, as guarantors, owed Li 840,000 yuan and liquidated damages 2 to the communication company520,000 yuan to bear joint and several liabilities. If the payment obligation is not fulfilled within the time limit specified in the judgment, the interest on the debt for the period of delayed performance shall be doubled in accordance with law. After the judgment took effect, the communication company, Zheng, and Sun failed to fulfill the repayment obligations determined by the judgment, and on January 8, 2021, Li applied to the court for compulsory enforcement.
After understanding the basic facts of the case, the prosecutor believes that the signature on the repayment agreement and other contents are the key to the review. When questioned about Sun, Sun told the prosecutor that he had indeed signed the repayment agreement on behalf of the company at that time. Sun also said that after he served as the legal representative of the nominee, he also specially inquired about the relevant legal provisions - if he only signed on behalf of the company, he would not be liable under normal circumstances, but after going to the court to inquire about the case information, he found that in the "Repayment Agreement" submitted by Li at the trial, there were the words "for the guarantor" after his signature, and the court ruled that he should bear the guarantee liability.
On May 12, 2021, Sun submitted an application for retrial to the higher court. The court rejected his application for retrial on the grounds that there was no evidence to prove that the words "guarantor" were added without his knowledge.
Sun eventually became an "old man", his bank account was frozen, and his travel and consumption were restricted, so in desperation, he applied to the procuratorate for supervision.
Handwriting identification
The preference appraisal opinion clarifies the direction
After accepting the case, the prosecutor of the Baoying County Procuratorate went to the court in time to obtain the original trial file and carefully reviewed it, and found that the plaintiff Li had added Ji as a defendant after filing a lawsuit, and submitted a guarantee written by Ji, requiring Ji to bear joint and several liability, however, during the adjournment, Li withdrew the lawsuit against Ji.
The key evidence in the case, the "Repayment Agreement", was handwritten on A4 paper, and the main content of the agreement was handwritten by Ji. The prosecutor carefully compared and found that the four words "guarantor" that caused Sun to fall into the dispute were different from Sun's signature in terms of handwriting and writing style, but they were very similar to the words "This agreement is guaranteed by Party C" in the lower left corner of the agreement, and it was inferred from the handwriting form that it should be written by the same person.
Subsequently, the prosecutor informed Sun of this discovery, and Sun applied for a handwriting evaluation. The prosecutor informed him that he would need to provide a handwriting sample of a similar date. However, Sun did not have a high level of education, and he rarely wrote, and did not leave a handwriting related to the word "guarantee". The prosecutor consulted with a forensic appraisal agency, and the other party said that in this case, only a tendentious appraisal opinion could be issued. In this regard, Sun expressed his willingness to accept it. The procurator then commissioned a judicial appraisal institute in Nanjing to conduct a handwriting appraisal in accordance with the law. After appraisal, the agency tendencies to determine that "as a guarantor" was not written by Sun, and tendencies to determine that these four words are written by the same person as "this agreement is guaranteed by Party C".
Since the handwriting appraisal opinion is a tendentious opinion, the probative force is not sufficient to overturn the facts found in the original judgment. However, this appraisal pointed out the direction of the investigation for the prosecutor, that is, the words "guarantor" were most likely written by Ji Mou, the drafter of the agreement, which can also corroborate each other with the withdrawal of the lawsuit without reason after the plaintiff Li added Ji as the defendant.
Investigation and verification
Simultaneous questioning to find out the truth
During the handling of the case, due to the impact of epidemic prevention and control, the relevant investigation and evidence collection work was repeatedly delayed, and it was not until July 12, 2023 that the investigation and evidence collection could be carried out smoothly. In order to ensure that the questioning was effective, the procurator separately formulated an interrogation plan for Ji and Li, and decided to interrogate them at the same time. In the face of the handwriting appraisal opinions presented by the prosecutor and the interlocking questioning, Ji finally admitted the fact of helping Li to fabricate evidence.
Ji said that he was the introducer of the business between Li and the communication company, and after the communication company owed Li, he went to collect debts with Li many times, and drafted the "Repayment Agreement" for both parties. However, when the agreed repayment time reached September 22, 2019, the communication company still did not repay, so Li asked Ji to write a "Letter of Guarantee" for repayment. In order to ensure that his creditor's rights could be realized, Li instructed Ji to add the words "as a guarantor" to Sun's signature in the "Repayment Agreement" before filing a lawsuit, and filed a lawsuit with the court with this agreement.
In order to exempt myself from the guarantee liability, I obeyed Li's request, but Li still added me as a defendant when he sued, and he agreed to withdraw after consulting with him many times. Ji felt very aggrieved.
In another interrogation room, under the continuous questioning of the prosecutor, Li finally admitted that the content of the agreement was drafted by Ji, and when the agreement was signed, Sun did not have the words "guarantor" behind his signature, and Sun himself made it clear on the spot that he did not want to be a guarantor. However, Li still quibbled that he did not know why Ji added "as a guarantor" after Sun's signature and when these words were added.
The court reversed the sentence
The applicant is not liable for the guarantee
After comprehensive research and judgment, the prosecutor who undertook the case believed that although Li had reservations about the statement of the truth, the facts he admitted could basically form an evidentiary chain with Ji's statement and appraisal opinions, confirming that the words "as a guarantor" were not signed by Sun, and Sun did not express his intention to guarantee the company's debts.
After completing all the investigation and evidence collection, on August 7, 2023, the Baoying County Procuratorate issued a procuratorial recommendation for retrial to the court in accordance with the law. On October 11, 2023, the court ruled to retry the case, and the prosecutor in charge of the case attended the retrial court to express supervisory opinions. Combined with the evidence of the investigation, the prosecutor who undertook the investigation demonstrated that the key evidence of the original trial, the "Repayment Agreement", was altered by the plaintiff, resulting in the original trial erroneously ruling that Sun was jointly and severally liable for repayment. At the same time, the procurator in charge suggested that the court give judicial sanctions or transfer to the public security organs for criminal responsibility for Li's acts of instructing others to give false testimony and Ji helping to fabricate evidence, and seriously disrupting judicial order.
On December 25, 2023, the court retried and changed the judgment, revoked the judgment requiring Sun to bear the guarantee liability, and ordered the communication company to repay Li's arrears and liquidated damages, and Zheng was jointly and severally liable for the debt, and transferred the clues of Li and Ji's violations and crimes to the public security organs for investigation and punishment. At present, the public security organs have accepted the clues and launched a preliminary investigation.
Prosecutor's Statement: How the Tendency Appraisal Opinion Plays a Role in Supervision
Under normal circumstances, an appraisal opinion is different from witness testimony and other evidence, it is made by specialized appraisers on the basis of scientific and technological means, and can not only be used as evidence in judicial case handling, but also has strong probative power.
In the course of procuratorial organs handling civil procuratorial supervision cases, the applicant is often unable to provide sufficient handwriting samples required for the evaluation, and the appraisal agency cannot directly issue a definitive appraisal opinion, and can only issue a tendentious appraisal opinion based on the sample written by the applicant on the spot. However, the preference appraisal opinion is also based on scientific appraisal technology, which also contains a certain degree of certainty, has the attribute of expert testimony to assist other evidence in proving the existence of facts, and can play a role in reviewing and judging other evidence and supporting evidence. Procuratorates may use the characteristics of tendentious appraisal opinions to provide guidance on the direction of evidence collection for civil procuratorial supervision in the handling of cases, and combine them with other evidence to achieve a definitive evidentiary effect.
In this case, the propensity appraisal opinion pointed to the probency appraisal opinion that the drafter of the agreement was most likely the person who wrote the words "guarantor", which allowed the procurator to clarify the direction of further investigation and successfully "broke through" Ji's verbal evidence, which corroborated each other with the propensity appraisal opinion. In the end, the court adopted the procuratorial suggestion for retrial, denied the fact that Sun was "a guarantor", and effectively safeguarded Sun's legitimate rights and interests.
*: Procuratorate** Minsheng Weekly Edition Author: Guan Ying, Liu Miao, Tang Yong Comics: Yao Wen).