Basic facts of the case
In 2020, Gu Moumou and a construction engineering Co., Ltd. in Jinzhou (hereinafter referred to as a construction company) signed a "Non-public Directional Debt Financing Instrument Subscription Agreement" (hereinafter referred to as "A "Subscription Agreement"), agreeing that Gu Moumou subscribed 500,000 yuan, with an annualized interest rate of 8.2%, a value date of December 28, 2020, and a product maturity date of January 18, 2022. In 2021, Gu Moumou and a construction company signed B "Non-public Directional Debt Financing Instrument Subscription Agreement" (hereinafter referred to as "B "Subscription Agreement"), agreeing that Gu Moumou subscribed for 1 million yuan, with an annualized interest rate of 7.7%, a value date of March 2, 2021, and a product maturity date of September 16, 2021.
In the Legal Application and Dispute Resolution section of A's "Prospectus for Non-public Directional Debt Financing Instruments" and B's "Prospectus for Non-public Directional Debt Financing Instruments", it is stated that "...... Any dispute arising out of or in connection with this Agreement shall be submitted to the people's court with jurisdiction in the place where the issuer is located", and the section of documents for reference states" 1. Documents for reference: (3) A letter of commitment to make up the difference issued by a financial company". In the A "Subscription Agreement" and "B Subscription Agreement" signed by Gu Moumou (Party A, the subscriber) and a construction company (Party B and the issuer), the application of law and dispute resolution part states that "any dispute arising from or related to the filing and registration, subscription, transfer, transfer, redemption and other matters of this product...... Either party shall file a lawsuit with the people's court where Party A is located."
The Letter of Undertaking for Making Up the Difference issued by a financial company to all investors in non-public directional debt financing instruments, including Gu, stated that "if a dispute arises due to this letter, the parties shall resolve it through negotiation and if the negotiation fails, it shall be submitted to the Shenzhen Court of International Arbitration for arbitration, and the arbitration shall be settled in Shenzhen in accordance with the arbitration rules in force at that time...... On November 26, 2020, a financial company changed its name to an information company.
Later, because a construction company failed to perform its repayment obligations in full and on time as agreed, Gu Moumou sued the court and requested an order: 1. The defendant construction company repaid the principal of the loan of 500,000 yuan, interest (based on 500,000 yuan, calculated at an annual interest rate of 8.2% from January 18, 2022 to the date of payment of the principal) and liquidated damages (calculated at 3/10,000 per day from January 18, 2022 to the date of payment of the principal); 2. Order the defendant construction company to repay the principal of the loan of 1 million yuan, interest (calculated at an annual interest rate of 7.7% from September 16, 2021 to the date of full payment of the principal) and liquidated damages (calculated at 3/10,000 per day from September 16, 2021 to the date of full payment of the principal) to the plaintiff Gu; 3. The defendant information company is jointly and severally liable for the claims in items 1 and 2.
During the defense, an information company raised a jurisdictional objection, claiming that according to the "Letter of Commitment to Make Up the Difference" issued by it, if the dispute due to the letter of commitment could not be negotiated, it should be submitted to the Shenzhen Court of International Arbitration for arbitration, requesting a ruling to dismiss Gu's lawsuit.
On June 21, 2023, the People's Court of Jintang County, Sichuan Province, rendered the (2023) Chuan 0121 Min Chu No. 2321 Civil Ruling: 1. Rejecting the jurisdictional objection of an information company; 2. The case was transferred to the Linghe District People's Court of Jinzhou City, Liaoning Province (i.e., transferred to the People's Court of the domicile of the defendant construction company for handling, and the parties were given the right to appeal). Gu Moumou was dissatisfied with the first-instance ruling and appealed. On December 18, 2023, the Chengdu-Chongqing Financial Court rendered the (2023) Yu 87 Min Zhi Zhong No. 614 Civil Ruling: 1. Revoke the (2023) Chuan 0121 Min Chu No. 2321 Civil Ruling of the People's Court of Jintang County, Sichuan Province; 2. The People's Court of Jintang County, Sichuan Province has jurisdiction over this case.
Grounds for the Trial
The effective ruling of the court held that the people's court shall, in the procedure for reviewing objections to jurisdiction, conduct a formal review of the legal facts and legal relationships related to jurisdiction, and make a judgment on whether the case falls within the jurisdiction of the people's court accepting the case. As far as this case is concerned, there are two key issues: first, whether the case is under the jurisdiction of the people's court; The second is whether the competent court should be determined in this case based on the provisions of the Subscription Agreement.
1. Whether the case is within the jurisdiction of the people's court
The Letter of Undertaking to Make Up the Difference stipulates that "if a dispute arises due to this letter, and the parties negotiate to settle it, and if the negotiation fails, it shall be submitted to the Shenzhen Court of International Arbitration for arbitration, and it shall be settled by arbitration in Shenzhen in accordance with the arbitration rules in force at that time". The letter of commitment was only unilaterally issued by an information company, without the signature of Gu Moumou, and the two parties did not reach an arbitration agreement, so it cannot be determined that the two parties reached an agreement on the use of arbitration to resolve the dispute. Therefore, this case does not have the factual basis to apply to an arbitration institution for arbitration in accordance with the arbitration clause in the Letter of Undertaking to Make Up the Difference, and the people's court should be in charge.
2. Whether the competent court should be determined in this case based on the provisions of the Subscription Agreement
The determination of jurisdiction in this case involves the Prospectus, the Letter of Undertaking to Make Up the Difference and the Subscription Agreement, which are respectively commented on below.
(1) For the two "prospectuses" of a construction company, the nature of the two prospectuses and whether the agreement of the parties has been formed shall be determined. According to Articles 472 and 473 of the Civil Code of the People's Republic of China, the two "Prospectuses" of a construction company were issued unilaterally by it without the signature of Gu Moumou, and the content was a detailed introduction and explanation of the non-public directional debt financing instruments, which contained the records of "the duration of a single product shall not exceed 14 months, which shall be subject to the "Subscription Agreement" and "the subscription period shall be subject to the "Subscription Agreement". There is also a lack of expression of intent that once the investor commits that a construction company will be bound by the prospectus. Therefore, the prospectus should be recognized as an invitation to make an offer in nature, and the jurisdiction clause contained in it that "the dispute shall be submitted to the people's court with jurisdiction in the place where the issuer is located" is only binding on the inviter of the offer, because Gu XX did not sign it, it does not constitute an agreement between the parties, and it is not binding on Gu XX.
(2) For the two "Letters of Commitment to Make Up the Difference" issued by an information company, it should be clarified whether their attributes are guarantee guarantees, debt accession or independent guarantees. According to Article 36 of the Interpretation of the Supreme People's Court on the Application of the Civil Code of the People's Republic of China on the Guarantee System (hereinafter referred to as the "Interpretation of the Guarantee System of the Civil Code"), in this case, two Letters of Undertaking to Make Up the Difference issued by an information company set out the obligation to make up the difference for the part that failed to pay in full on time, the payment of liquidated damages if the obligation to perform the subrogation guarantee obligation on time, and the guarantee of the realization of the investor's principal and income.
According to the words and phrases used in the letter of commitment, it can be seen that the subject of the obligation to pay the principal and income to the investor is divided into priority and subordination, a construction company is the main debtor, and it should pay the principal and income of the investor, and the information company is only the subject of the supplementary payment obligation. There is also a priority in the order of payment of principal and income to investors, which is paid by a construction company first, and if all or part of the payment cannot be made, then an information company pays the difference, that is, it is made up. Therefore, the letter of commitment conforms to the characteristics of a guarantee and is an expression of intent in nature. According to the provisions of paragraphs 1 and 2 of Article 21 of the Interpretation of the Guarantee System of the Civil Code, the competent court shall be determined in accordance with the main contract in this case.
(3) For the two "Subscription Agreements" signed between Gu XX and a construction company, it should be determined whether they have formed an agreement and whether the agreement with the competent court is clear. The two "Subscription Agreements" both stipulate the subscription amount, annualized rate of return, product value date and maturity date, repayment of principal and interest after maturity, etc., and the rights and obligations of Gu and a construction company are specific and clear, and have the seal of a construction company and the signature of Gu Moumou. Judging from the actual circumstances of this case, neither of the two Subscription Agreements involved in the case stipulates that the dispute shall be resolved through negotiation, and either party shall file a lawsuit with the people's court where Party A is located. It can be seen that the court of jurisdiction agreed in the agreement belongs to the place where the plaintiff is domiciled, which is the people's court of the place where the dispute has an actual connection, and does not violate the provisions of hierarchical jurisdiction or exclusive jurisdiction, and the agreement is legal and valid, binding on the parties, and should be used as the basis for determining the court with jurisdiction over the case. Party A's place of residence is within the jurisdiction of the People's Court of Jintang County, Sichuan Province, so the People's Court of Jintang County, Sichuan Province has jurisdiction over this case.
In jurisdictional objection cases involving the main contract and the guarantee contract, since there are two interrelated contractual relationships, such jurisdictional objections are special compared with other jurisdictional objections, and when handling them, the main contract and the guarantee contract should be examined together to determine whether the dispute resolution methods of the two contracts are the same and whether they are both within the jurisdiction of the people's court, and then determine the jurisdiction according to the specific circumstances. For example, in this case, where the Subscription Agreement of the main contract stipulates that disputes shall be resolved through litigation, and the Letter of Undertaking for Deficiency Compensation in the guarantee contract has a clause for resolving disputes through arbitration, when determining jurisdiction, it is necessary to first ascertain whether the disputes arising from the Subscription Agreement and the Letter of Undertaking to Make Up the Difference are within the jurisdiction of the people's court, and then make a judgment on jurisdiction.
1. The particularity of jurisdictional objections involving the main contract and the guarantee contract
This type of case consists of two contractual relationships, namely the main contractual relationship and the guarantee contractual relationship, which are independent civil legal relationships, and the parties to the guarantee contract are not parties to the main contract, but the two contractual relationships are factually and legally related to each other. In the field of private law, the principle of autonomy of will is implemented, and the law does not restrict the main contract and the subordinate contract from agreeing on the dispute resolution method separately, so there may be a situation where the dispute resolution methods of the master-slave contract are inconsistent, and in judicial practice, it is necessary to review the dispute resolution methods of the master-slave contract separately.
2. The logical relationship between competence and jurisdiction
Arbitration and litigation are two parallel dispute resolution mechanisms. The first paragraph of Article 21 of the Interpretation of the Guarantee System of the Civil Code provides for the relationship between arbitration and litigation, that is, the issue of jurisdiction, and the second paragraph provides for the issue of how to specifically determine jurisdiction. The supervisor is the premise and basis of jurisdiction, and jurisdiction is the embodiment and implementation of the supervisor. The underlying logic of paragraphs 1 and 2 of the article is that the competent authority should be resolved first, and then the jurisdiction should be determined. The first paragraph is the logical premise for the application of the second paragraph, and the second paragraph can only be applied if both the main contract dispute and the guarantee contract dispute are within the jurisdiction of the people's court.
Therefore, it is necessary to make a separate judgment on whether the main contract and the guarantee contract belong to the competent authority of the people's court, and determine whether the preconditions for the application of paragraph 2 of Article 21 of the Interpretation of the Guarantee System of the Civil Code are met. In this case, although the Letter of Undertaking to Make Up the Difference in the Guarantee Contract contained the content of arbitration, the parties did not reach an agreement on the arbitration clause, and the guarantee contract was under the jurisdiction of the people's court. The main contract "Subscription Agreement" does not stipulate that arbitration excludes the jurisdiction of the people's court, so it is also within the jurisdiction of the people's court. Therefore, this case has the preconditions for the application of Article 21, Paragraph 2 of the Interpretation of the Guarantee System of the Civil Code.
3. The specific application of paragraph 2 of Article 21 of the Interpretation of the Guarantee System of the Civil Code
Where the creditor sues the debtor and the guarantor together, the competent court shall be determined in accordance with the provisions of paragraph 2 of Article 21 of the Interpretation of the Guarantee System of the Civil Code on the premise that both the main contract and the guarantee contract are within the jurisdiction of the people's court. In this case, the main contract "Subscription Agreement" stipulates that the dispute shall be filed with the people's court where Party A is located, which is legal and valid, and Party A is the plaintiff in this case, and the people's court at the place of its domicile has jurisdiction over the dispute. If, in this case, the arbitration clause of the Letter of Undertaking to Make Up the Difference in the Guarantee Contract is binding on the agreement of the parties, then according to the first paragraph of Article 21 of the Interpretation of the Guarantee System of the Civil Code, the people's court has no jurisdiction over the dispute between the parties to the Letter of Undertaking to Make Up the Difference, and can only exercise jurisdiction over the dispute between the parties to the Subscription Agreement.
July Issue