Keywords: on the verge of bankruptcy, quick action, actively cooperate, remove obstacles, effective implementation.
Case No.: (2013) Wen Le Shang Wai Chu Zi No.1, (2013) Wen Le Zhi Min Zi No.1729
Case Main Points
As the Zhejiang Group Company (hereinafter referred to “Company B”) refused to pay the expired payment of goods, the Zhongyuan Company (hereinafter referred to “Company A”) entrusted the attorney to help collect the overdue receivables. After conducting the preliminary investigation of Company B, the attorney found that the company has fell into the business and financial crisis, moreover, the shareholders were planning to transfer the assets of the company. Therefore, the attorney provided a detailed Investigation Report to the client and suggested to initiate the lawsuit as soon as possible. Meanwhile, it is necessary for Company A to apply for the property preservation upon Company B. The attorney overcame lots of difficulties, won this case and the full amount of the payment have been implemented through the litigation. The Company B was declared to bankrupt by the court after this implementation.
Introduction of the Case
The Company A entrusted the attorney to collect the overdue receivables which is in arrears by Company B. The attorney investigated Company B in the first time when accepted the commission of Company A. After investigation, the attorney found that the solvency of Company B has deteriorated due to its blind expansion, bad management and the deterioration of the financial position. Therefore, the attorney provided a detailed Investigation Report to the client. Meanwhile, the attorney suggested Company A to initiate the lawsuit as soon as possible and apply for the property preservation upon Company B. The Company A accepted this suggestion and entrusted the attorney to initiate the lawsuit against Company B.
The attorney had prepared the litigation materials and preservation documents at the day decided to initiate the lawsuit. After communicating the urgency of the case with the court, the court filed the case on the same day and immediately transferred this case to the business court. After determining the undertook judge, the court took property preservation measures immediately. However, there is no deposit in the bank accounts of Company B. In the absence of the property as well as the Company A is not able to provide other property clues, to push this case into enforcement proceedings, which can ensure the implementation of this case, has become a top priority (the court can search for all of the bank accounts of Company B in Zhejiang province after entering the implementation process).
In consider of the large number of the caseload for judges and it will be a long waiting period to determine the court date, the attorney drafted the Attorney’s Opinion which is similar to the judgement. It detailed discussed this case from the part of the facts, the evidence, the debate and the legislation quoted from positive and negative sides. Then the attorney sent the electronic version of the Attorney’s opinion to the judge before communication. As the first impressions are strongest, this opinion will not only have important impacts on the judge’s impression of this case, but also help the judge resolve most of the issues in the process of this case and will be helpful for him to write the judgement.
The positive attitude of the attorney and the Attorney’s Opinion with objective and impartial contents impressed the judge. The case took only one month and 10 days from Company A’s decision to file the lawsuit. Normally it will take 4 or 5 months or even more than half a year for handling a case.
After the judgment came into effect, the attorney immediately applied to the court for compulsory enforcement, actively cooperated with the court executor, and kept in touch with the court executor in real-time to inquire about the progress of the case. However, due to Company B has completely fallen into difficulties, shareholders have transferred most of capital, and all bank accounts have no deposits, the execution has temporarily reached a deadlock.
In this scenario, the attorney did not give up but continued to keep in touch with the court executor and urge the court executor to pay attention to the changes in company B’s account in real-time. Finally, after one month after the execution application, the court found that company B suddenly opened an account in a Hangzhou branch of the Bank of China. After learning this information, the attorney immediately hurried to the court, and reported to company A and suggesed that company A’s salesman communicate with acquaintance of Company B for knowing the reason for Compnay B sunddenly opening an account. In fact, Compnay B’s account opened is for paying payment for goods to its clients.
After the information was verified, the attorney immediately informed the judge, and the judge specially delegated an assistant to pay attention to the account in real-time and hurried to Hangzhou to freeze and deduct the money as soon as it’s received on the account. So far, the case has been successfully concluded with realization of the full amount of creditor’s rights. After the case was closed, Company B was declared bankrupt by the court.
Case Analysis
I. Resolving quickly within the prescribed period for litigation is the key.
The case is not complicated in terms of its legal relation and details and is a simple dispute over sales contract. The key to the case is to resolve quickly within the prescribed period for litigation, otherwise, it would be a mere scrap of paper.
II. Initiating judicial proceeding is urgent.
In the course of case handling, the attorney confirmed through preliminary investigation that Company B was already in trouble and on the verge of bankruptcy, and irreparable damage would occur with the failure of taking immediate measures. After obtaining the consent of the client, the attorney filed a lawsuit immediately to the people’s court so as to ensure the judicial proceeding is initiated quickly.
III. Cooperating with the judge, helping out judge’s tedious work actively and promoting the judge to handle the case in the case trial stage.
In the course of court trial and execution, attorney cooperated with the judge actively with all charging documents, case facts and evidential materials were sorted out comprehensively and objectively. Before the hearing, the legal opinion with the similar as court verdict was submitted in electronic form to the judge for knowing the case clearly, and the arguments and counterarguments were raised in detail on the facts, evidence, and issues on which the both parties may have disagreement to finally reach a conclusion supporting the judgment. With the cooperation with the judge, helping out the judge’s tedious work and making the judge have a preconceived idea is conducive to try the case and bring in a verdict for the judge.
IV. In the execution stage of the case, keeping in touch with the judge for the judge to pay attention to the case actively; and for fully mobilizing the positivity of the judge in handling the case, cooperating with the judge and providing convenience for the judge.
For the execution of the case, the case could be executed properly and handled actively by the judge is inseparable. And the positivity for the judge handling the case, and positive cooperation with the judge with all possible convenience provided by the attorney is inseparable. In addition, the attorney’s attitude with chariness and responsibility to the case also makes the judge be motivated to achieve the goal together.
In the procedure of case execution, the attorney communicated with the judge in real-time for ensuring the judge can pay attention to the case simultaneously. At the same time, the attorney provided convenience actively for the judge, for example, attorney held the investigation order issued by the court for investigation if allowed, and attorney drove in person for assist the judge to handle the case if the court vehicles are not enough. The positive attitude of the attorney and the sense of responsibility for fulfilling the duty and various conveniences provided for the judge had initiated the judge’s positivity in handling cases to fully execute it in final.
After the case was executed, Company B was declared bankrupt by the court. But before that, the shareholders’ shares of Company B were transferred; and the land, factory buildings, machinery equipment’s and other fixed assets of Company B were mortgaged to the bank; as well as a large number of employees were owned wages in arrears, hence, most of the ordinary creditors failed to be paid off.
Conclusion
With regard to the case, the most important thing is to handle it decidedly and fast. Only when the attorney acts fast, can the loss be reduced to the lowest level and even be avoided. Any hesitation or delay in any link will probably enlarge the loss or make all previous achievements wasted.
To sum up, if the client is the debtor of the case, attorney is required to make accurate, decisive and quick judgments and report to the client, while decision made quickly by the client is also required. On the other hand, attorney needs to handle the case in a most positive attitude and have a clear purpose and train of thought for undertaking it. Moreover, attorney shall swallow the pride and lay down burden, position themselves as the judge assistant or the court clerk, cooperate with the judge in handling the case, remove obstacles for the judge, and mobilize the enthusiasm of the judge for ensuring the case to be closed successfully.