金颖波

概 述：

2002年7月19日，上海浦东发展银行杭州市分行诉被告中国建设银行温岭市支行为注册资金真实性争议纠纷一事，向台州市中级人民法院提起了诉讼。台州市分行法律顾问处推荐了本所金颖波律师作为被告的特别授权代理人，参加该案的一审开庭活动。经代理律师充分仔细的调查、详实而有理的辩护，本案终以驳回原告的起诉而圆满结束。

案情介绍：

原告诉请及主要的事实与理由：

1997年12月31日，原告贷款300万元给杭州银河贸工（集团）公司（下称银河公司），该贷款由杭州银利茶业有限公司（下称银利茶业）、台州金城实业有限公司（下称金城公司）三公司提供连带责任担保。贷款到期后，银河公司和各保证人均未履行还款义务。原告遂向杭州市中级人民法院起诉，经判决并申请执行。但由于银河公司、银利公司、百惠公司债务较多，其财产已被另案执行完毕，金城公司也因没有依法参加年检被吊销了营业执照。经调查发现，在金城公司设立过程中，被告为其出具了虚假的《注册资本证明书》，根据此《注册资本证明书》，台州市审计事务所出具了验资报告，金城公司才得以成立。从金城公司工商档案中发现，被告出具了一份《注册资本证明书》，表明银河公司以金城公司名义存入资金1100万元，用于申报单位注册资本金，并有1997年4月1日、4月3日进帐单作为收款凭证，而实际上并无一分资金汇入金城公司帐户。台州市审计师事务所已于1999年被注销。为此，原告认为：被告作为银行没有履行应尽的审查义务，出具了虚假的注册资本证明书，台州市审计师事务所以此为依据出具了验资报告显然也是虚假的，因此被告对于金城公司资金没有到位的情况下并从事一系列民事活动，并最终给原告带来的损失负有责任，应承担原告的经济损失计400万元。

针对原告的诉请，代理人从杭州市工商局和台州市工商局调取了上述有关企业的工商登记资料，并经向上述企业有关负责人员了解，向法院提交了有关的证据，形成了辩护观点。

代理人认为：根据最高人民法院作出的《关于金融机构为企业出具不实或者虚假验资报告资金证明如何承担民事责任问题的通知》的规定，出资人未出资或者未足额出资，金融机构为企业提供不实、虚假的验资报告或者资金证明，相关当事人使用该报告或者证明与该企业进行经济往来而受到损失的，应当首先由该企业承担民事责任，对于该企业财产不足以清偿债务的，由出资人在不实或者虚假资金范围内承担责任。企业、出资人的财产依法强制执行后仍不能清偿债务的，由金融机构在验资不实部分或者虚假资金范围内，根据过错大小承担责任。根据原告提供的证据反映，原金城公司由银利公司、百惠公司、杭州银通实业有限公司、杭州银河机电配件有限公司四家公司组成，其中银利公司、百惠公司已经执行程序，但银通实业有限公司、银河机电配件有限公司虽被吊销营业执照，但未进行依法清算。而吊销营业执照仅是一种工商处罚行为，在依法进行清算完毕前，这两公司作为经济实体仍然存在，能够对外承担民事责任。虽然原告提供了杭州市中级人民法院的民事裁定书来证明其主张的情况，但民事裁定书仅表明了法院对其中二家法人股东的执行情况，而其余二家法人股东不是该案的被执行人。由于原告未提供证据证明已对该两公司进行强制执行且该两公司已无财产可供执行；事实上该两家公司也未进行有效合法的程序。因此，应当认为原告起诉被告温岭建行的前提条件不成就，原告的起诉依法应以驳回。

最终法院采纳了代理人的观点，驳回了原告的起诉。

Jin Yingbo

Overview:

On July 19, 2002, Shanghai Pudong Development Bank Hangzhou Branch sued the defendant China Construction Bank Wenling Branch for a dispute over the authenticity of registered capital, and filed a lawsuit with the Taizhou Intermediate People's Court. The Legal Advisor Office of Taizhou Branch recommended Lawyer Jin Yingbo from our firm as the specially authorized agent of the defendant to participate in the first instance hearing of the case. After thorough investigation and detailed and reasonable defense by the acting lawyer, this case was successfully concluded by rejecting the plaintiff's lawsuit.

Case Introduction:

Original information and main facts and reasons:

On December 31, 1997, the plaintiff loaned 3 million yuan to Hangzhou Yinhe Trade and Industry (Group) Co., Ltd. (hereinafter referred to as Yinhe Company), which was jointly and severally guaranteed by Hangzhou Yinli Tea Industry Co., Ltd. (hereinafter referred to as Yinli Tea Industry) and Taizhou Jincheng Industrial Co., Ltd. (hereinafter referred to as Jincheng Company). After the loan expired, both Galaxy Company and the guarantors failed to fulfill their repayment obligations. The plaintiff then filed a lawsuit with the Hangzhou Intermediate People's Court, and after judgment, applied for execution. However, due to the high debt of Galaxy Company, Yinli Company, and Baihui Company, their assets have been executed separately, and Jincheng Company has also had its business license revoked due to not participating in the annual inspection in accordance with the law. After investigation, it was found that during the establishment process of Jincheng Company, the defendant issued a false "Certificate of Registered Capital" for it. Based on this "Certificate of Registered Capital", the Taizhou audit firm issued a capital verification report, which enabled Jincheng Company to be established. From the industrial and commercial archives of Jincheng Company, it was found that the defendant issued a "Certificate of Registered Capital", indicating that Galaxy Company had deposited 11 million yuan in the name of Jincheng Company for the purpose of declaring the registered capital of the unit, and had receipts on April 1 and April 3, 1997 as proof of payment. However, in reality, no funds were transferred to Jincheng Company's account. The auditing firm in Taizhou City was deregistered in 1999. Therefore, the plaintiff believes that the defendant, as a bank, did not fulfill its due review obligations and issued a false certificate of registered capital. The Taizhou City Audit Firm issued a capital verification report based on this as a basis, which is obviously also false. Therefore, the defendant is responsible for the losses caused to the plaintiff by Jincheng Company engaging in a series of civil activities without sufficient funds, and should bear the plaintiff's economic losses of 4 million yuan.

In response to the plaintiff's lawsuit, the agent retrieved the industrial and commercial registration materials of the above-mentioned enterprises from the Hangzhou and Taizhou Industrial and Commercial Bureaus, and after understanding with the relevant personnel in charge of the above-mentioned enterprises, submitted relevant evidence to the court, forming a defense viewpoint.

The agent believes that, in accordance with the provisions of the "Notice on How to Bear Civil Liability for Financial Institutions Issuing False or False Capital Verification Reports or Fund Certificates for Enterprises" issued by the Supreme People's Court, if the investor fails to make capital contributions or fails to make full capital contributions, and the financial institution provides false or false capital verification reports or fund certificates for the enterprise, and the relevant parties use the reports or certificates to engage in economic transactions with the enterprise and suffer losses, The enterprise should first bear civil liability. If the assets of the enterprise are insufficient to repay debts, the investor shall bear liability within the scope of false or false funds. If the property of an enterprise or investor is still unable to repay its debts after being enforced in accordance with the law, the financial institution shall bear responsibility based on the extent of the fault within the scope of the false or false capital verification. According to the evidence provided by the plaintiff, the original Jincheng Company was composed of four companies: Yinli Company, Baihui Company, Hangzhou Yintong Industrial Co., Ltd., and Hangzhou Yinhe Electromechanical Parts Co., Ltd. Among them, Yinli Company and Baihui Company have executed the procedures, but although Yintong Industrial Co., Ltd. and Yinhe Electromechanical Parts Co., Ltd. have had their business licenses revoked, they have not been liquidated in accordance with the law. Revoking the business license is only a form of industrial and commercial punishment, and until the liquidation is completed in accordance with the law, these two companies still exist as economic entities and can bear civil liability to the outside world. Although the plaintiff provided a civil ruling from the Hangzhou Intermediate People's Court to prove its claim, the civil ruling only indicated the court's enforcement of two of the legal shareholders, and the remaining two legal shareholders were not the enforcers of the case. Due to the plaintiff's failure to provide evidence to prove that the two companies have been enforced and that they have no property available for enforcement; In fact, the two companies have not conducted effective and legal procedures. Therefore, it should be considered that the prerequisite for the plaintiff to sue the defendant Wenling Construction Bank has not been met, and the plaintiff's lawsuit should be dismissed in accordance with the law.

The final court accepted the agent's viewpoint and rejected the plaintiff's lawsuit.