陈某借款纠纷案再审代理实录

----周显根律师

祸起收条

1999年1月，陈某因其侄女陈XX交给八万元款项，向陈XX出个收条，收条载明：今收陈XX人民币八万元正；2001年11月，陈XX以陈某未归还借款为由，向基层人民法院起诉；诉状称：陈某因资金紧缺，向其借去人民币八万元正，期间，多次向陈某催讨，陈某借故不予归还。陈某辩称：向陈XX出具收条事实，但收条所载款项是陈XX向其归还的借款。

一审判由，令人费解

一审法院在判决论证时认为：陈某出具收条并从陈XX处拿到八万元这一事实，因双方未异议予以认定。至于该款是借款还是还款，作为收条，从其形式上看，应当是收款人有占有该款的理由和依据或是付款人负有应当支付这笔款的依据和理由。陈某系本案纠纷中的收款人，在本案中没有提供占有该款的理由和依据或陈XX负有应当支付该笔款的理由和依据。现陈某提出该款是陈XX原先向其借款后收回的款，那在收条上载明的应是“收回”或“收到借款”，而不应是“收到”两字，陈某的这一主张与常理不符合。陈某既没有理由和依据占有该款，也不是陈XX原先向其借款的还款，则陈某负有返还陈XX八万元的义务；陈XX提供的收条，从证明效力看，能证明其诉讼主张；双方之间形成的债权债务关系事实清楚，陈某辩称理由不足，不予采纳，故判决生效后十日内返还陈XX人民币八万元。陈某不服，向台州市中级人民法院提出上诉，因其未在规定时间内缴纳上诉，台州市中级人民法院按自动撤诉处理作出裁定。

检察抗诉 监督程序起动

检察抗诉认为：原一审法院判决认定事实相互矛盾，导致判决有误，其理由：1、根据民事诉讼法“谁主张、谁举证”的原则，陈XX起诉要求陈某归还借款，应当提供足够的证据证明双方之间存在借款法律关系；陈XX仅提供收条，不能独立证明双方之间存在借款法律关系。2、收条与借条有本质的区别；借条可以单独证明双方之间存在借款法律关系，而收条不能独立证明双方之间存在债权债务法律关系；本案如果没有其他证据佐证，只能以书证表面形所载内容加以确认；因而，仅凭收条只能证明陈某收到陈XX八万元事实，不能证明陈某向陈XX借款八万元事实。3、要证明陈某没有事实和依据占有该款项，举证责任应由陈XX承担，而不应由陈某承担。4、一审法院一方面认定陈XX提供的证据能证明其诉讼主张，另一方面又认为陈某没有理由和依据占有该笔款项，因而是不当得利产生的返还义务，这与陈XX的诉称相互矛盾。

借条与收条 法律后果不同

周显根律师作为陈某的再审诉讼程序中的代理人，对本案着重就借条和收条的法律意义谈了自已的看法。认为：

一、收条与借条所含的法律意义、后果不同。收条，从法律角度进行分析可知，出具收条的人有法律上的理由予以接受他人财物给送交财物人出具的书面凭证；它标志着一个法律关系因义务人履行义务而了结。而借条，表明持有借条的人把财物交由他人持有或所有并由接收财物一方向提供财物一方出具的书面凭证，它标志着一个法律关系因义务人履行义务而产生，双方由此形成某种特定的债权债务关系。一审法院以收条作为借条进行判决，显然混淆了两者之间的不同法律意义和法律后果。

二、作为一项司法判决，应按社会公众一般的认知推断收条与借条所包含的意义，而原一审判决超出一般人的认知，把收条作为借条进行认证并判决要求出具收条的人承担返还责任，与常理不合。

三、在民事法律行为中，双方都负有勤勉和谨慎注意的义务。在本案中，收条是由陈XX书写，由陈某签字予以完成；陈XX接收陈某签字的收条时，应对收条内容、形式进行必要的检查和审核，对内容、形式不符的收条或借条，应不能接受；否则，作为一个具有完全民事行为能力的人，应视为对收条或借条所载内容认可并承担由此产生的不利或有利法律后果。表现在本案中，陈XX认为陈某出具的收条即是其向他出具的借条，表明该借条内容存在欠缺，因而条子持有人应对有瑕疵的借条承担举证责任；可原一审判决要求陈某承担占有该款的理由和依据责任，这与民事诉讼法规定的“谁主张、谁举证”原则不符。

四、原一审法院判决认为：陈某没有理由和依据持有该款项，应当予以返还，表明陈某持有的款项，在法律上应界定为不当得利，可原一审判决又以借款法律关系进行判决，表明判决认定的理由和判决结果相悖，而且也与陈XX诉称的事实不合，与民事诉讼法所规定的“不告不理”原则相违背。

鉴于陈XX无法解释收条所含款项产生原因和内容，在再审程序中又提出收条所载款项是合伙投资款转为债务形成的；对此，周显根律师认为：从原一审庭笔录表明：双方之间根本不存在合伙投资法律关系，陈XX在原一审庭审笔录时均指认是陈某因资金紧缺向其借款，从未指认是合伙投资转化为借款。

调解结案 未对本案争执法律关系予以确定

本案经过再审程序审理后，法院初步意见认为：对陈XX持有的收条作为借条进行起诉并要求陈某归还借款，没有确切的证据证实；鉴于双方是叔侄关系，建议双方以和解方式予以结案。最后陈某在其兄弟的劝说下，同意陈XX在撤回起诉的基础上，同意给陈XX四万元的人民币；在此情况下律师只能尊重当事人的意见，以利双方和睦相处。

Record of Chen's Agency for the Reexamination of a Loan Dispute Case

----Lawyer Zhou Xiangen

Misfortune begets receipt

In January 1999, Chen issued a receipt to Chen XX for a payment of 80000 yuan from his niece Chen XX. The receipt stated that he received 80000 yuan from Chen XX today; In November 2001, Chen XX sued the grassroots people's court on the grounds that Chen had not repaid the loan; The lawsuit states that due to a shortage of funds, Chen borrowed RMB 80000 from him. During this period, he repeatedly urged Chen to repay the loan, but Chen refused to return it on the pretext. Chen argued that the receipt was issued to Chen XX, but the amount stated in the receipt was a loan returned by Chen XX to him.

The reason for the first trial is puzzling

The first instance court held that the fact that Chen issued a receipt and received 80000 yuan from Chen XX was recognized as there was no objection from both parties during the judgment argument. As for whether the payment is a loan or repayment, as a receipt, in terms of form, it should be the recipient's reason and basis for possessing the payment or the payer's reason and basis for paying the payment. Chen is the payee in the dispute in this case, and did not provide a reason and basis for possession of the payment in this case, or Chen XX has a reason and basis for paying the payment. Chen's claim that the payment was originally recovered by Chen XX after borrowing from him is inconsistent with common sense. The receipt should indicate "recovery" or "receipt of the loan" rather than "receipt". If Chen has no reason or basis to possess the funds, nor is it the repayment of the loan that Chen XX originally borrowed from him, Chen is obligated to return Chen XX 80000 yuan; The receipt provided by Chen XX, from the perspective of its probative effect, can prove its litigation claim; The fact of the debt and debt relationship formed between the two parties is clear, and Chen argues that the reasons are insufficient and will not be adopted. Therefore, within ten days after the judgment takes effect, Chen XX will be returned RMB 80000. Chen was dissatisfied and appealed to the Taizhou Intermediate People's Court. Due to his failure to pay the appeal within the prescribed time, the Taizhou Intermediate People's Court made a ruling on automatic withdrawal of the lawsuit.

Initiation of Prosecution Protest Supervision Procedure

The prosecution protested that: the original first instance court's judgment found that the facts were contradictory, leading to errors in the judgment. The reasons for this are: 1. According to the principle of "who claims, who provides evidence" in the Civil Procedure Law, Chen XX sued and requested Chen to repay the loan, and sufficient evidence should be provided to prove the existence of a legal relationship between the two parties regarding the loan; Chen XX only provides receipts and cannot independently prove the existence of a loan legal relationship between the two parties. 2. There is a fundamental difference between receipts and IOUs; A promissory note can independently prove the existence of a loan legal relationship between the two parties, while a receipt cannot independently prove the existence of a debt legal relationship between the two parties; If there is no other evidence to support this case, it can only be confirmed based on the surface content of the documentary evidence; Therefore, relying solely on the receipt can only prove the fact that Chen received 80000 yuan from Chen XX, and cannot prove the fact that Chen borrowed 80000 yuan from Chen XX. 3. To prove that Chen has no facts or basis to possess the funds, the burden of proof should be borne by Chen XX, not Chen. 4. On the one hand, the first instance court found that the evidence provided by Chen XX could prove his lawsuit claim, and on the other hand, it also believed that Chen had no reason or basis to possess the money, and therefore was under an obligation to return due to improper enrichment. This contradicts Chen XX's claim.

The legal consequences of promissory notes and receipts are different

Lawyer Zhou Xiangen, as Chen's agent in the retrial proceedings, expressed his own views on the legal significance of promissory notes and receipts in this case. Believing that:

1、 The legal significance and consequences contained in receipts and IOUs are different. From a legal perspective, it can be concluded that the person issuing the receipt has legal reasons to accept other people's property as a written certificate issued by the person delivering the property; It marks the end of a legal relationship as the obligor fulfills its obligations. A promissory note, which indicates that the person holding the promissory note hands over the property to another person for possession or ownership and is issued by the receiving party to the party providing the property, signifies that a legal relationship arises from the performance of obligations by the obligor, resulting in a specific debt relationship between the two parties. The first instance court used the receipt as a promissory note for judgment, which clearly confused the different legal meanings and consequences between the two.

2、 As a judicial judgment, the meaning contained in receipts and promissory notes should be inferred based on the general public's understanding. However, the original first instance judgment goes beyond the general public's understanding, and the receipt is authenticated as a promissory note and the judgment requires the person issuing the receipt to bear the responsibility for return, which is contrary to common sense.

3、 In civil legal acts, both parties have the obligation of diligence and careful attention. In this case, the receipt was written by Chen XX and signed by Chen for completion; When Chen XX receives a receipt signed by Chen, necessary inspections and reviews should be conducted on the content and form of the receipt. Receipts or promissory notes that do not match the content and form should not be accepted; Otherwise, as a person with full capacity for civil conduct, it shall be deemed that they acknowledge the content contained in the receipt or promissory note and bear the adverse or favorable legal consequences arising from it. In this case, Chen XX believes that the receipt issued by Chen is the promissory note issued to him, indicating that there is a deficiency in the content of the promissory note. Therefore, the holder of the promissory note should bear the burden of proof for the defective promissory note; The original first instance judgment requires Chen to bear the responsibility for the reasons and basis for possessing the paragraph, which is inconsistent with the principle of "who claims, who provides evidence" stipulated in the Civil Procedure Law.

4、 The original judgment of the first instance court held that Chen had no reason or basis to hold the funds and should be returned, indicating that the funds held by Chen should be defined as unjust enrichment in law. However, the original judgment of the first instance court was based on the legal relationship of the loan, indicating that the reasons and results of the judgment contradict each other, and also contradict the facts claimed by Chen XX, and contradict the principle of "no complaint, no response" stipulated in the Civil Procedure Law.

Considering that Chen XX was unable to explain the reason and content of the amount contained in the receipt, it was proposed in the retrial procedure that the amount contained in the receipt was formed by converting partnership investment funds into debts; Regarding this, Lawyer Zhou Xiangen believes that the original record of the first instance court indicates that there is no legal relationship between the two parties regarding partnership investment. In the original record of the first instance court, Chen XX pointed out that Chen borrowed money from him due to a shortage of funds, and never pointed out that the partnership investment was converted into a loan.

The settlement of the mediation case did not determine the legal relationship of the dispute in this case

After the retrial process in this case, the preliminary opinion of the court is that there is no conclusive evidence to prove that the receipt held by Chen XX was sued as a promissory note and Chen was required to repay the loan; Considering that both parties have a relationship of uncle and nephew, it is recommended that the case be settled through reconciliation. Finally, under the persuasion of his brother, Chen agreed to give Chen XX RMB 40000 on the basis of withdrawing the lawsuit; In this situation, lawyers can only respect the opinions of the parties involved in order to facilitate harmonious coexistence between both parties.