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Notice of the Supreme People's Court on Issuing the Summary of Minutes of the Symposium on Hearing Cases about Assignment of Distressed Claims Involving Financial Institutions
(No.19 [2009] of the Supreme People's Court)
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the PLA, and the Xinjiang Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region:
To carry out in earnest the spirit of the central authorities on solving the problem of loss of state-owned assets during the assignment of distressed claims involving financial institutions, unify the ideas, clarify the tasks, impartially and properly hear cases about the assignment of distressed claims involving financial institutions according to law, prevent the loss of state-owned assets, ensure the smooth disposal of distressed claims involving financial institutions, maintain and promote the social harmony and stability, and protect the public interests and the legitimate rights and interests of the parties concerned, the Supreme People's Court, upon consultations with the relevant departments, has prepared the Summary of Minutes of the Symposium on Hearing Cases about Assignment of Distressed Claims Involving Financial Institutions, which is hereby issued to you for your compliance and implementation in combination with your judicial practice.
All the higher people's courts (especially those at places where the cases about disputes over assignment of distressed claims are in a larger number, involve a larger amount of subject matter or have a greater effect) shall strengthen the investigation, research and guidance in respect of the trial and enforcement work of the relevant cases, and report new situations and problems, if found, to the Supreme People's Court in a timely manner.
Supreme People's Court of the People's Republic of China
March 30, 2009
Summary of Minutes of the Symposium on Hearing Cases about Assignment of Distressed Claims Involving Financial Institutions
To carry out in earnest the spirit of the central authorities on solving the problem of loss of state-owned assets during the assignment of distressed claims involving financial institutions, unify the ideas, clarify the tasks, impartially and properly hear cases about assignment of distressed claims involving financial institutions according to law, prevent the loss of state-owned assets, ensure the disposal of distressed claims involving financial institutions, and maintain and promote the social harmony and stability, on October 14, 2008, at Haikou City of Hainan Province, the Supreme People's Court held a National Symposium on Hearing Cases about Assignment of Distressed Claims Involving Financial Institutions by the Courts. Upon invitation, the Legislative Affairs Committee of the NPC Standing Committee, the Political and Law Committee of the CPC Central Committee, the Legislative Affairs Office of the State Council, the Ministry of Finance, the State-owned Assets Supervision and Administration Commission of the State Council, the China Banking Regulatory Commission, the People's Bank of China, the National Audit Office and other entities attended this symposium. The vice presidents in charge of civil and commercial trials and the persons in charge of the relevant tribunals of the higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Military Court of the PLA and the Xinjiang Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uigur Autonomous Region attended the symposium. Upon earnest discussion, the attendees unanimously agreed on the major issues concerning the hearing of cases about assignment of distressed claims involving financial institutions. The summary of minutes of the symposium is as follows:
| | 最高人民法院印发《关于审理涉及金融不良债权转让案件工作座谈会纪要》的通知
（法发[2009]19号）
各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院：
为认真落实中央关于研究解决金融不良债权转让过程中国有资产流失问题的精神，统一思想，明确任务，依法公正妥善地审理涉及金融不良债权转让案件，防止国有资产流失，保障金融不良债权处置工作的顺利进行，维护和促进社会和谐稳定，维护社会公共利益和相关当事人的合法权益，最高人民法院商有关部门形成了《关于审理涉及金融不良债权转让案件工作座谈会纪要》，现印发给你们，请结合审判工作实际，遵照执行。
各高级人民法院，特别是不良债权转让纠纷案件数量较多、标的额较大、影响较大地区的高级人民法院，要加强对有关案件审判、执行工作的调研指导，发现新情况、新问题的，应当及时报告最高人民法院。
中华人民共和国最高人民法院
二00九年三月三十日
最高人民法院关于审理涉及金融不良债权转让案件工作座谈会纪要
为了认真落实中央关于研究解决金融不良债权转让过程中国有资产流失问题的精神。统一思想，明确任务，依法妥善公正地审理涉及金融不良债权转让案件，防止国有资产流失，保障金融不良债权处置工作的顺利进行，维护和促进社会和谐稳定，最高人民法院邀请全国人大常委会法制工作委员会、中共中央政法委员会、国务院法制办公室、财政部、国务院国有资产监督管理委员会、中国银行业监督管理委员会、中国人民银行和审计署等单位，于2008年10月14日在海南省海口市召开了全国法院审理金融不良债权转让案件工作座谈会。各省、自治区、直辖市高级人民法院和解放军军事法院以及新疆维吾尔自治区高级人民法院生产建设兵团分院主管民商审判工作的副院长、相关审判庭的负责同志参加了座谈会。与会同志通过认真讨论，就关于审理涉及金融不良债权转让案件的主要问题取得了一致的看法。现纪要如下：
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I. Principles to Be Followed in Hearing Such Cases
It is agreed at the symposium that: such cases are critical to the smooth disposal of distressed assets involving financial institutions, the protection of state-owned assets, the protection of the interests of employees and the stability of the society. Therefore, the people's courts must attach great importance to such cases and stick to the following principles in trial:
| | 一、关于审理此类案件应遵循的原则
会议认为，此类案件事关金融不良资产处置工作的顺利进行，事关国有资产保护，事关职工利益保障和社会稳定。因此，人民法院必须高度重视此类案件，并在审理中注意坚持以下原则：
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1. Safeguarding the economic safety of the state. The civil and commercial trial work is an important means for the state to maintain the normal economic order, prevent and eliminate market risks and safeguard the economic safety of the state. The courts across the country must obey and serve the state supervision and control over the overall stability of the national economy and the safety of state-owned assets, and in the spirit of the central policies, in reliance on the basic spirit of civil and commercial laws and regulations and under the tenets of regulating the financial market, preventing financial risks, maintaining financial stability and safeguarding economic safety, legally, impartially and properly hear such cases to ensure the stable economic order of the state and the safety of state-owned assets.
| | （一）坚持保障国家经济安全原则。民商事审判工作是国家维护经济秩序、防范和化解市场风险、维护国家经济安全的重要手段。全国法院必须服从和服务于国家对整个国民经济稳定和国有资产安全的监控，从中央政策精神的目的出发，以民商事法律、法规的基本精神为依托，本着规范金融市场、防范金融风险、维护金融稳定、保障经济安全的宗旨，依法公正妥善地审理此类纠纷案件，确保国家经济秩序稳定和国有资产安全。
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2. Maintaining the stability of enterprises and society. The disposal of distressed assets involving financial institutions is related with the vital economic interests of enterprises. The courts across the country shall further enhance their political, overall situation, responsibility and safeguard awareness, legally, impartially and properly hear such cases according to the overall requirements for safeguarding the reform, development and stability of the state, effectively prevent any mass, contingent or vicious events possibly caused by such cases, and endeavor to achieve the objectives of “eliminating contradictions, clarifying relationships, assuring the public and maintaining the normal order.”
| | （二）坚持维护企业和社会稳定原则。金融不良资产的处置，涉及企业重大经济利益。全国法院要进一步强化政治意识、大局意识、责任意识和保障意识，从维护国家改革、发展和稳定的大局出发，依法公正妥善地审理好此类纠纷案件，切实防止可能引发的群体性、突发性和恶性事件，切实做到“化解矛盾、理顺关系、安定人心、维护秩序”。
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3. Legality, impartiality, properness and reasonableness. The people's courts shall, in hearing such cases, combine the application of legal provisions with the realization of the spirit of central policies; combine such notions in civil and commercial laws as party autonomy and equal protection with such factors as state economic policies, financial market supervision and social impact; correctly deal with the “relationships” among protecting state-owned assets, safeguarding the smooth disposal of distressed assets involving financial institutions and maintaining the stability of enterprises and society; insist on overall planning while taking all factors into consideration, properness and reasonableness; and ensure the consistency between “legality and impartiality” and “properness and reasonableness” and between the legal effects and social effects of trials.
| | （三）坚持依法公正和妥善合理的原则。人民法院在审理此类案件中，要将法律条文规则的适用与中央政策精神的实现相结合，将坚持民商法的意思自治、平等保护等理念与国家经济政策、金融市场监管和社会影响等因素相结合，正确处理好保护国有资产、保障金融不良资产处置工作顺利进行、维护企业和社会稳定的关系，做到统筹兼顾、妥善合理，确保依法公正与妥善合理的统一，确保审判的法律效果和社会效果统一。
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4. Giving priority to mediation and combining mediation with judgment. To avoid intensification of contradictions, maintain the social stability and balance the interests of the parties concerned, the people's courts shall, in legal proceedings, fully explain the spirit of state policies to the parties concerned to clarify their ambiguous understanding of the relevant laws and policies. The people's courts shall give priority to mediation, actively lead the parties concerned into consultations based on mutual understanding and mutual accommodation, and make utmost efforts to solve disputes by mediation. If the parties concerned cannot reach a settlement, the people's court shall properly and impartially hear the case according to the relevant laws and regulations and this Summary.
| | （四）坚持调解优先、调判结合的原则。为了避免矛盾激化，维护社会稳定，平衡各方利益，人民法院在诉讼中应当向当事人充分说明国家的政策精神，澄清当事人对法律和政策的模糊认识。坚持调解优先，积极引导各方当事人本着互谅互让的精神进行协商，尽最大可能采用调解的方式解决纠纷。如果当事人不能达成和解，人民法院要根据相关法律法规以及本座谈会纪要（以下简称《纪要》）进行妥善公正的审理。
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II. Acceptance of Cases
It is agreed at the symposium that: to ensure that such cases are handled impartially and properly, the people's courts shall accept all such cases which meet the acceptance conditions as provided for in the Civil Procedure Law or which are involved in the spirit of this Summary. Where a distressed claim peeled off to a financial asset management company is assigned by the company, if the debtor which is a state-owned enterprise (hereinafter referred to as the “SOE debtor”) knows or should have known the assignment of the distressed claim but still pays off the corresponding debt to the original state-owned bank, the SOE debtor shall have no defense against a recovery action brought by the assignee against it, but if the SOE debtor brings an action against the original state-owned bank for recovery of unjust enrichment after paying off the debt to the assignee, the people's court shall accept the case; if the SOE debtor does not know the assignment of the distressed claim and pays off the corresponding debt to the original state-owned bank, it may defend against the recovery action brought by the assignee against it, and, if the assignee brings an action against the original state-owned bank for recovery of unjust enrichment, the people's court shall accept the case.
Where, in the course of a recovery action against the SOE debtor, the assignee requests that the original state-owned bank be added as a third party, the people's court shall reject it. Where a final judgment has been made before the issuance of this Summary or according to this Summary, and a party concerned applies for retrial on the ground that the effective judgment is erroneous according to this Summary, the people's court shall reject it.
The people's court shall not accept a case under any of the following circumstances:
| | 二、关于案件的受理
会议认为，为确保此类案件得到公正妥善的处理，凡符合民事诉讼法规定的受理条件及《纪要》有关规定精神涉及的此类案件，人民法院应予受理。不良债权已经剥离至金融资产管理公司又被转让给受让人后，国有企业债务人知道或者应当知道不良债权已经转让而仍向原国有银行清偿的，不得对抗受让人对其提起的追索之诉，国有企业债务人在对受让人清偿后向原国有银行提起返还不当得利之诉的，人民法院应予受理；国有企业债务人不知道不良债权已经转让而向原国有银行清偿的，可以对抗受让人对其提起的追索之诉，受让人向国有银行提起返还不当得利之诉的，人民法院应予受理。
受让人在对国有企业债务人的追索诉讼中，主张追加原国有银行为第三人的，人民法院不予支持；在《纪要》发布前已经终审或者根据《纪要》做出终审的，当事人根据《纪要》认为生效裁判存在错误而申请再审的，人民法院不予支持。
案件存在下列情形之一的，人民法院不予受理：
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1. an action is brought in the people's court by a financial asset management company or a state-owned bank for disputes over a policy-related financial asset assignment agreement;
| | （一）金融资产管理公司与国有银行就政策性金融资产转让协议发生纠纷起诉到人民法院的；
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2. a claim is filed by a creditor for repayment of debt against a SOE debtor which has been shut down for bankrupt liquidation according to state policies;
| | （二）债权人向国家政策性关闭破产的国有企业债务人主张清偿债务的；
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3. a claim is filed by a creditor for repayment of debt against a SOE debtor which has been listed in the overall national plan on the policy-related shutdown and bankruptcy of enterprises and is to be shut down for bankrupt liquidation;
| | （三）债权人向已列入经国务院批准的全国企业政策性关闭破产总体规划并拟实施关闭破产的国有企业债务人主张清偿债务的；
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4. an action for invalidation of a distressed claim assignment contract is brought by the party with a preemptive right or the SOE debtor, provided that the rights and obligations between the assignee and the SOE debtor have been fulfilled before this Summary is issued;
| | （四）《纪要》发布前，受让人与国有企业债务人之间的债权债务关系已经履行完毕，优先购买权人或国有企业债务人提起不良债权转让合同无效诉讼的；
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5. an action for defect in a distressed claim is brought by the assignee against the original state-owned bank, after acquiring the distressed claim by assignment from a financial asset management company;
| | （五）受让人自金融资产管理公司受让不良债权后，以不良债权存在瑕疵为由起诉原国有银行的；
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6. a claim is filed by the assignee against a state-owned forestry enterprise which enjoys the policies on natural forest protection projects, as a result of the state-owned bank's or financial asset management company's assignment of a distressed claim against the forestry enterprise (for details, see the Directory for the Application Form for Exempting Forestry Enterprises in the Natural Forest Reserves from Debts to Financial Institutions); or
| | （六）国有银行或金融资产管理公司转让享受天然林资源保护工程政策的国有森工企业不良债权而引发受让人向森工企业主张债权的（具体详见《天然林资源保护区森工企业金融机构债务免除申请表》名录）；
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7. in an action for invalidation of a distressed claim assignment contract, the SOE debtor fails to provide a corresponding guarantee or the party with a preemptive right waives the right.
| | （七）在不良债权转让合同无效之诉中，国有企业债务人不能提供相应担保或者优先购买权人放弃优先购买权的。
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III. Application of Law on the Conditions for the Assignment of a Distressed Claim to Become Effective and Validity of an Agreement Reached by Both Parties
It is agreed at the symposium that: if a distressed claim had been formed before the Contract Law came into force but was assigned after the Contract Law came into force, the conditions for the assignment to become effective to the debtor shall be governed by paragraph 1 of Article 80 of the Contract Law.
．．．．．． | | 三、关于债权转让生效条件的法律适用和自行约定的效力
会议认为，不良债权成立在合同法施行之前，转让于合同法施行之后的，该债权转让对债务人生效的条件应适用合同法第八十条第一款的规定。
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