Achievement 1:P2P investors successfully recover first installment—with lawyer-facilitated mediation,what is taken could get paid back
In two recent arbitral disputes over P2P loans,King&Capital lawyers Chen Yu,Ren Shiyu,Lin Lin and Liang Zhuoqing successfully represented their clients to settle the disputes,with the proposed repayment schemes accepted by the respective borrower.Their clients have now received the first installment of the loan.
The past few years have witnessed multiple waves of P2P lending platform scandals,where investors could do nothing but to accept the fact that their investment had gone down the drain.In the present case,the P2P platform operates in the field of agricultural finance.The enterprises had borrowed money through the platform,but were delinquent in repaying their loans since 2018.The many investors had spent tremendous efforts to get the money back,including urging the companies through the platform,directly contacting the enterprises and filling complaints to the competent financial and public security authorities,all to no avail.
After over a year of futile attempts,a group of investors engaged the King&Capital lawyers to represent them in the aforementioned arbitral proceedings.To ensure the best protection of the investors’interests and to facilitate collection of evidence on the existence of the debt,the lawyers listed the P2P platform,the borrowing enterprises and the guarantors all as respondents.In both cases,the borrowing enterprises had initially denied the authenticity of the electronic contracts concluded via the platform in question.However,after the lawyers showed ample evidence and strongly presented their arguments during the nearly 9-hour hearing,the companies eventually acknowledged the debt,demonstrated willingness to settle,and accepted the payment scheme proposed by the investors.Both the cases closed with a settlement agreement produced by the arbitral tribunal.
In P2P lending disputes,the chances for the investor to get back the investment depends on a number of factors,such as any involvement of criminal offences,actual existence of the borrowing enterprise,capability and willingness of the borrower to repay the loan,availability of evidence favoring the investor,etc.However,due to the relatively low evidence collection capacity,in very few cases an investor actually receives payment.The aforementioned two cases were exceptions,due to the lawyers’accurate analysis of the situation,proper prioritization of the quickest recovery of investment,and facilitation of settlement.To date,the investors have respectively received the first installment of the loan.
Last,as a reminder to the vast majority of ordinary investors,investment may involve substantial risk and shall be carried out with particular caution.Otherwise the loss could be huge and beyond recovery.
Achievement 2:Ex-husband gift-giving to homewrecker during marriage,wife’s losses saved by lawyers
In a recent case,King&Capital lawyers Cheng Qiuyu and Lin Xueyan at the Nanjing branch successfully represented a wife against her former husband and the homewrecker,in which the court ruled the gift agreement giving community property to homewrecker as invalid,and ordered the homewrecker to return the funds to the ex-wife.
As per the case,the client met the man when he was a nobody and married him when he had nothing.It was with her tremendous support and hard work that his business took off,growing by leaps and bounds.Thereafter,he divorced her under the pretext of incompatibility,without leaving her any property.It was only after the divorce that the client learned from others that the ex-husband had cheated on her during their marriage,while also giving large amounts to the homewrecker.She then turned to King&Capital for help,in the hope of recovering her community property.
The King&Capital lawyers set out three key points for the case:1.whether the client had a marital property agreement with the ex-husband,one that provided for separate ownership of community property;2.the dates on which the marriage started and ended,so as to determine whether the gift-giving occurred within that time frame;and 3.the existence of other obligations between the ex-husband and the homewrecker,and whether the latter would use such as defense.Upon official engagement,the lawyers followed the strategy to communicate with their client,and to collect evidence by way of interviews and telephone calls.It became clear that the client had no marital property agreement with the former husband,that the gift-giving occurred during the marriage,and that the ex-husband had no other legal relations to the homewrecker.Then,with empathic yet well-reasoned talks with the former husband,the lawyers obtained his written statement regretting the gift-giving,which was submitted to the court along with other evidence.The lawyers argued before the court that China was a community property country,where as a general principle all wages,bonuses,etc.,acquired by the husband and the wife during the marriage shall be part of the community property.The husband’s unilateral decision to give part of community property to the homewrecker was not only an act in violation of the Marriage Law and beyond the ordinary scope of marital agency,but also one that was contrary to public order and good morals.As such,the gift agreement should be invalid and the homewrecker should return the given funds.Accepting the lawyers’point of view,the court reached its judgment.
Closest and farthest apart are east and west,while most intimate and most estranged are a man and a wife.While love may be short lived,moral orders shall always be complied with.The King&Capital lawyers hold that for each individual client,every case is of the ultimate importance and compelling interest.Therefore,a lawyer shall always zealously promote the client’s interest,and to utilize all available resources within the parameters of the law to win support of the judge and the collegial bench.
Achievement 3:“Criminal-civil integration”:proper handling of an arbitral case at criminal-civil intersection
Along with the transition and reform of China’s economy,financial crimes and civil disputes tend to intersect from time to time,which give rise to substantial differences and great difficulties,due to the inadequate and divergent laws and regulations.In a contract dispute,King&Capital lawyers Chen Yu,Wang Chen and Jia Qing successfully persuaded the police to docket a criminal case,brought the ongoing arbitral proceedings“to a pause”,and ensured the greatest protection possible of their client’s interest.
In June 2020,their client,Lin,owner of a labor services company,suddenly found himself as respondent of an arbitral proceedings initiated by Wang,who demanded the payment of RMB700,000 in outstanding debt.Along with the notice of arbitration came a“contract”and an“acknowledgement of debt”that Lin had never seen before.The“contract”bore the labor services company’s seal,while the“acknowledgement of debt”contained,in addition to the company seal,Lin’s signature.Upon in-depth discussions with the client,the lawyers discovered that while Lin and Wang had a cooperative relationship of sort,they never agreed on the“contract”and the“acknowledgement of debt”.Lin also mentioned that while he had no idea how the“contract”and the“acknowledgement of debt”bore the company’s seal,the seal was most likely authentic,as Wang had access to the company seal at the beginning of their cooperation.Such a fact was highly unfavorable worked to Lin’s disadvantage.
Upon official engagement,the lawyers made the keen observation that the client should not focus solely on responding to the civil proceedings,and promptly adjusted their strategy accordingly.While Wang’s civil claim of the RMB700,000 in outstanding debt was completely based on the“contract”and the“acknowledgement of debt”.On the other hand,the formulation process and authenticity of the“contract”and the“acknowledgement of debt”were determinative factors for whether Wang was guilty of forging a company seal.As such,the lawyers quickly decided on a dual-track approach where on the civil side they would proactively request the arbitral tribunal to transfer the case to the police,while more importantly,they would gather evidence to file a complaint to the police on Wang’s criminal forging of company seal.
Eventually,with the three lawyers’efforts,the police docketed the case,while the arbitral tribunal decided to stay the proceedings on account of the new circumstances.The client’s lawful rights and interests were successfully defended.
In practice,criminal-civil intersection is a prevalent yet problematic issue in the civil and commercial field.The King&Capital lawyers are of the opinion that in cases of criminal-civil intersection,the guiding principle should be“criminal-civil integration”that neither escalates civil dispute nor tolerates financial crimes,under which the criminal and civil matters are examined in a coordinated matter,from the perspective of interconnection rather than isolation.One should neither blindly insist the rule of“criminal matters come before civil ones”,nor analyze the case using a“one-model-fits-all”approach.Rather,a lawyer should make full use of the various legal proceedings for proper treatment of cases of criminal-civil intersection,and the effective protection of the client’s lawful rights and interests.
Achievement 4:Accountant accused of embezzlement:principal offender revaluated as accomplice at appeal,sentence of imprisonment shortened with lawyer’s help
In a recent case,King&Capital lawyer Zhu He at the Nanjing branch successfully defended a State-owned mall accountant in an embezzlement case.Through relentless efforts,the lawyer eventually convinced the appellate court to reevaluate the client’s role in the crime from principal offender to accomplice,and to shorten the sentence by two years.The case was handled by partner Zhu He and assistant Zhao Xiaoyu.
The client,Li,was an accountant at a State-owned mall.From 2014 to 2015 and under the instruction of Lee,the mall’s chief of finance,Li took advantage of his position to misappropriate nearly RMB3 million of the mall’s funds for personal uses by third parties and for company capital verification purposes,which generated nearly RMB30,000 in interest.The first instance court held that Lee and Li both committed the crime of embezzlement as joint offenders.The court sentenced each to five-year imprisonment,and ruled the confiscation of the proceeds of crime.
The King&Capital lawyer was retained at the appellate stage,during which new facts or new evidence could no longer be presented,and convincing the appellate court to modify the original judgment was no easy feat.The lawyer outlined three key points for the cases:1.it was Lee,Li’s direct superior,who came up with the intention of embezzlement and exerted control over the perpetration of the crime.Li merely acted on his superior’s direction,without any involvement in the plotting or scheming of the embezzlement.2.while Li was the actual perpetrator of misappropriation,his activities were only a passive element with no determinative effects on the crime.Moreover,Li had no knowledge of Lee’s actual uses of the misappropriated funds.3.Li voluntarily cooperated with the supervisory commission investigation and truthfully confessed to his criminal activities.As such,he should have satisfied the requirement of self-surrender.In light of the above,Li should be determined as an accomplice.
The first instance judgment was inappropriate in that it not only missed the circumstance of self-surrender,but also failed to differentiate the accomplice from the principal offender.To rectify these shortcomings,the lawyer,on the one hand,made well-reasoned and highly-detailed submissions to the appellate court in an effort to prove Li’s self-surrender and accomplice status.On the other hand,the lawyer took the initiative to communicate,on several occasions,with the procurator and judge of the appellate proceedings.Presenting examples of multiple decisions to not prosecute from a number of similar cases,the lawyer secured a written opinion from the procurator that“recommends the second instance court to modify the original judgment in accordance with the law,on account that Li shall be determined as an accomplice”.Eventually,the appellate court affirmed the accomplice status of Li,and shortened his sentence to imprisonment of three years.
The King&Capital lawyer holds that every criminal defendant deserves a sentence proportionate to his crime and punishment corresponding to his liability.Each case presents its unique difficulties and vulnerabilities.A lawyer shall flexibly avail himself of all legal means and methods,so as to seek resolution of every single issue presented in the case.A lawyer shall also proactively strive for the most desirable outcome possible,one that best suits the client’s interest,so as to fulfill the client’s trust and expectations.