The following content is reproduced from: Civil Trial [Supreme Court • Judgment Document] Subrogation litigation belongs to the debt preservation system, rather than requiring creditors to choose between the debtor and the sub-debtor as the subject of fulfilling their obligations

The following content is reproduced from: Civil Trial

[Supreme Court•Judgment Document] Subrogation litigation belongs to the debt preservation system, rather than requiring creditors to choose between the debtor and the sub-debtor as the subject to fulfill their obligations

[Judgement Essence] 1. Subrogation litigation belongs to the debt preservation system, rather than requiring creditors to choose between the debtor and the sub-debtor as the subject to fulfilling their obligations. If creditors are asked to choose one, will not only increase the economic cost of creditors' lawsuits for subrogation, but will also seriously undermine creditors' enthusiasm for subrogation lawsuits, which is contrary to the purpose of establishing the subrogation litigation system. 2. Subrogation litigation is not the same as litigation against the debtor. From the perspective of the parties, subrogation litigation takes the creditor as the plaintiff and the sub-debtor as the defendant, while the litigation against the debtor takes the creditor as the plaintiff and the debtor as the defendant. The identities of the two defendants are not identical. From the perspective of the subject matter and litigation request, although the subrogation litigation requires the sub-debtor to directly fulfill the repayment obligation to the creditor, it is aimed at the creditor's rights and obligations between the debtor and the sub-debtor, while the litigation against the debtor requires the debtor to fulfill the repayment obligation to the creditor, and is aimed at the creditor's rights and obligations between the creditor's creditor and the debtor's and the debtor's . The two are also different in terms of subject scope, legal relationship, etc. From the perspective of the requirements of prosecution, unlike litigation against the debtor, subrogation litigation not only requires the conditions for prosecution stipulated in Article 108 of the Civil Procedure Law, but also the conditions for litigation stipulated in Article 11 of the Interpretation of the Contract Law.

Supreme People's Court of the People's Republic of China

Civil Affairs Judgment

(2019)Supreme Court Civil Final No. 6

Appellant (first instance plaintiff) : Beijing Datang Fuel Co., Ltd., domicile 15th Floor, No. 1 Caishikou Street, Xicheng District, Beijing.

Legal representative : Bai Fugui, chairman of the company.

Appointment Litigation Agent : Liu Zhanguo, lawyer of Beijing Yuren Law Firm.

Appointment Litigation Agent : Ma Yuqi, lawyer of Beijing Yuren Law Firm.

Appellant (first instance defendant) : Shandong Baifu Logistics Co., Ltd., domicile Room 1903, Building 19th Floor, No. 266, Changjiang Middle Road, Qingdao Economic and Technological Development Zone, Shandong Province.

Legal representative : Yu Qian, general manager of the company.

Appointment litigation agent : Luo Dianmin, lawyer of Tianjin Minhe Law Firm.

Appellant Beijing Datang Fuel Co., Ltd. (hereinafter referred to as Datang Company) appealed to this court for a dispute over the sale contract with the respondent Shandong Baifu Logistics Co., Ltd. (hereinafter referred to as Baifu Company). After the case was filed on January 4, 2019, our court formed a collegial panel in accordance with the law and held a trial. The entrusted litigation agents of the appellant Datang Company, Liu Zhanguo and Ma Yuqi, and the entrusted litigation agent of the respondent Baifu Company, Luo Dianmin, appeared in court to participate in the litigation. The trial of this case has now ended.

Datang Company appeals: 1. Revoke the first-instance judgment and change the order to redeem Baifu Company to return 153,468,000 yuan to Datang Company and pay interest losses (based on 153,468,000 yuan, from November 25, 2014 to the date of actual payment of Baifu Company, according to the benchmark interest rate of the same loan for the same period in People's Bank of China ); 2. The appeal fee shall be borne by Baifu Company. Facts and reasons: 1. The first instance court found the amount of payment paid by Datang Company to Baifu Company under the sales item incorrectly. From 2012 to 2014, under the procurement business, as of April 19, 2014, Datang Company's books showed that it had paid Baifu Company a total of 1869151565.63 yuan, of which 1827867179.08 yuan was paid to Baifu Company through bank transfer, acceptance bills, and letters of credit; on April 20, 2014, the two parties signed an agreement to pay Baifu Company 41284386.55 yuan in debt offset. 2. The first instance court found the amount of payment that Baifu Company should return is incorrect.First, the 41284386.55 yuan confirmed offset in the civil judgment of Lu Shangchu No. 96, , which is confirmed to be offset in , should not be deducted in this case. It is a offset amount deducted by both parties from the payment owed by Baifu Company to Datang Company under the sales contract. This case is a dispute arising from both parties under the procurement contract. The two parties agreed that Datang Company would pay 41284386.55 yuan to Baifu Company by debt offset. The amount should be used as the amount of payment paid by Datang Company to Baifu Company. Second, the Civil Judgment No. 74 of Zhejiang Ningbo Shangchu Zi ruled that the 36369405.32 yuan of goods that Vientiane Company should return from Dianbaifu Company should not be deducted in this case. After the judgment of the subrogation litigation case came into effect, Vientiane Company did not receive any execution funds due to its failure to perform, and the purpose of subrogation litigation was not achieved at all. The result of the judgment did not affect the exercise of Datang Company's right to sue in this case. In summary, the actual return of Baifu Company should be RMB 153,468,000 (Datang Company has paid RMB 1869151565.63 for the goods - the actual delivery value of Baifu Company is RMB 1715683565.63).

Baifu Company argued: 1. This case has been arbitrated by the Beijing Arbitration Commission. After the arbitration request of Datang Company was rejected, it filed a lawsuit with the court on different reasons, which violated the principle of "no matter is handled again". 2. The burden of proof is allocated improperly by the first instance court. In summary, the lawsuit fee shall be borne by Datang Company for the request to be rejected.

Datang Company filed a lawsuit with the first instance court: 1. Order Baifu Company to return 153468,000 yuan to it, and the calculation method is 1869151565.63 yuan (Datang Company has paid 1827867179.08 yuan for the goods + the reconciliation agreement confirms that Datang Company owes 41284386.55 yuan for Baifu Company)-Batang Company has delivered 1715683565.63 yuan for the goods; 2. Order Baifu Company to compensate it for its interest losses calculated based on the benchmark interest rate of the same loan in the same period from April 21, 2014 to the date of return of all principal; 3. The litigation costs in this case shall be borne by Baifu Company.

The first instance court determined the facts: From January 20, 2012 to May 29, 2013, Datang Company and Baifu Company signed a total of 41 procurement contracts, agreeing that Baifu Company will sell nickel iron, nickel ore, refined coal, metallurgical coke and other goods to Datang Company. The two parties made agreements on the contract amount, payment and settlement method, delivery date, breach of contract liability, dispute resolution method, etc. During the implementation of the contract, both parties shall use rolling settlement to pay the goods. Baifu Company regularly or irregularly delivers goods to Datang Company based on the types of goods agreed in the contract, and the delivery quantity is inconsistent with the quantity agreed in each purchase contract. Datang Company prepares a fuel purchase settlement statement based on each delivery situation of Baifu Company, which states the type, quantity, corresponding contract number and total price and tax for each delivery. Datang Company pays the goods payment to Baifu Company from time to time, but the amount of payment does not correspond to the amount of goods agreed in each contract. From March 15, 2012 to January 8, 2014, Datang Company paid a total of RMB 1827867179.08 for the goods. Baifu Company issued a total of RMB 1869151565.63 for the total amount of value-added tax invoices issued to Datang Company. Datang Company claimed that the cumulative supply value of Baifu Company was 1715683565.63 yuan, and Baifu Company claimed that it had supplied the goods in full according to the amount of the value-added tax invoice.

On April 20, 2014, Datang Company and Baifu Company signed a "Debt Offset Agreement", which stated: 1. The two parties signed the "Iron Fine Powder Purchase and Sales Contract" on April 28, 2013 (Contract No.: 13RFGTK010-007115) and the "Iron Fine Powder Purchase and Sales Contract" on May 29, 2013 (Contract No.: 13RFGTK014-007116). According to the above two contracts, Datang Company shall pay Baifu Company 39775586.55 yuan in payment. 2. The two parties signed the "Iron Fine Powder Purchase and Sales Contract" (Contract No.: 12TRDY775-GFNK013-007137) on October 19, 2012. According to the contract, Datang Company has paid 24741,200 yuan, and the remaining 1508,800 yuan has not been paid. 3. As of the date of signing of this agreement, Datang Company's accounts receivable to Baifu Company are much higher than accounts payable. After negotiation between the two parties, this agreement will be signed on the solution to the above issues: 1. Both parties agree that Datang Company's accounts payable against Baifu Company of RMB 41284386.55 will be offset by the corresponding equivalent value on the date of the effective date of this agreement. Such offsets will not affect Datang Company's exercise of any rights under the remaining accounts receivable against Baifu Company.2. The matters not covered shall be resolved through consultation; if no negotiation is reached, the China International Economic and Trade Arbitration Commission shall be submitted to the ruling in Beijing.

On November 25, 2014, Datang Company, as the plaintiff, filed a lawsuit against Ningbo Vientiane Import and Export Co., Ltd. (hereinafter referred to as Vientiane Company) as the defendant and Baifu Company as the third party, filed a creditor's subrogation lawsuit against Ningbo Intermediate People's Court of Zhejiang Province. In the case, Datang Company claimed that it signed a contract with Baifu Company with contract number No. 7114 on March 19, 2013. After the contract was signed, Datang Company paid 147,500,000 yuan in payment as per the approximate payment, but Baifu Company did not deliver the goods agreed in the contract, nor did it return the payment to Datang Company. Because Baifu Company enjoys maturing claims against Vientiane and fails to exercise it, it has caused damage to Datang Company's aforementioned claims against Baifu Company, and requested Vientiane to pay 55733807.98 yuan to Datang Company or deliver equivalent nickel iron. Vientiane Company believes that it owes Baifu Company a total of 36369405.32 yuan, including loans. The Ningbo Intermediate People's Court of Zhejiang Province made the civil judgment No. 74 (2014), believing that according to the evidence provided by Datang Company, Baifu Company still owes Datang Company 147,500,000 yuan, while Wanxiang Company believes that it still owes Baifu Company 363,69,405.32 yuan in due debts, Datang Company also recognized this. Baifu Company has not claimed the debt from Vientiane Company through litigation or arbitration, resulting in the failure of Datang Company's debt claims. Therefore, Datang Company requires Vientiane to directly repay the debts to be paid off by Vientiane Company, which is based on the law and supports it. The debt amount should be based on the amount recognized by Vientiane Company, which can be recognized by Vientiane Company, so Vientiane Company was ordered to pay 36369405.32 yuan to Datang Company. The civil judgment has come into effect. During the trial of this case, Datang Company believed that the 153,468,000 yuan claimed in this case included the 14,750,000 yuan claimed in the aforementioned civil case.

On December 25, 2014, Datang Company, as the plaintiff, filed a lawsuit against the Shandong Higher People's Court of sale contract dispute with Baifu Company, Tianjin Baifu Industrial Co., Ltd. (hereinafter referred to as Tianjin Baifu Company), Xu Bin, Inner Mongolia Chayou Qianqi Xingda Chemical Co., Ltd. (hereinafter referred to as Xingda Company), Gu Xiaoyan, Xiao Yu and Chaoyang Zhonggang Mining Co., Ltd. (hereinafter referred to as Zhonggang Company) as defendants. In this case, Datang Company requested to order Baifu Company to pay 55983558.4 yuan of goods and the loan interest for the same period calculated based on the payment of goods as the basis. Baifu Company, Tianjin Baifu Company, Xu Bin, Gu Xiaoyan and Xiao Yu bear the guarantee liability for the above payment of goods and interest with the mortgage provided by them, and Tianjin Baifu Company, Xingda Company, and China Steel Company shall bear joint and several liability for the above payment of goods and interest. The Shandong Higher People's Court made the civil judgment No. 96 of Lu Shangchu, supporting the above-mentioned litigation request of Datang Company. The judgment has taken effect. The calculation method for Datang Company's lawsuit request of 55983558.4 yuan is: In this case, Baifu Company owes 132594558.4 yuan for the goods - Datang Company confirmed in the "Debt Offset Agreement" on April 20, 2014 should offset Baifu Company's debt amount of 41284386.55 yuan - Datang Company's actual debt amount that it admitted to recover in this case was 35327591.66 yuan.

On October 19, 2015, Datang Company, as the applicant, filed an arbitration application with Baifu Company as the respondent to the Beijing Arbitration Committee. In this arbitration case, Datang Company claimed that 153468,000 yuan consistent with the principal amount of the lawsuit requested in this case was the payment for goods under one of the 41 procurement contracts signed by the two parties, numbered under contract No. 7114. Baifu Company did not supply the goods as agreed. Datang Company requested arbitration to terminate the contract No. 7114. Baifu Company returned 153468,000 yuan and compensated for interest losses. Baifu Company acknowledged that the 7114 contract was not supplied, and at the same time claimed that the 153,468,000 yuan claimed by Datang Company in this case was a pile of 40 contracts, which had nothing to do with the 7114 contract. Some of the 40 contracts agreed to arbitration, while others agreed to courts, so the Beijing Arbitration Commission had no jurisdiction.On March 22, 2016, the Beijing Arbitration Commission (2016) Beijing Arbitration No. 0317 held that except for the contract No. 7114 involved in the arbitration case, other contracts do not fall within the scope of the trial of the arbitration case. The arbitration tribunal cannot hear the signing and performance of other contracts in the arbitration case. The amount of the accumulated payment of goods to Baifu Company claimed by Datang Company and the value of the accumulated payment of goods to Datang Company to Datang Company cannot be determined; Datang Company admitted that the payment does not correspond to the specific contract, and Baifu Company believes that neither party actually performed the contract No. 7114, and the existing evidence of Datang Company is not enough to prove that it paid the payment of goods to Baifu Company under the contract No. 7114, and it is not enough to prove that the cumulative difference formed by other contracts should be included in the payment of goods under the contract No. 7114. In the end, the arbitration award terminated the contract No. 7114, but the arbitration request of Datang Company to request Baifu Company to return RMB 153,468,000 to compensate for the interest loss was not supported. At the same time, the dispute between the two parties can be resolved in another case.

In the first instance, Datang Company submitted a notarization certificate from the Beijing Fangyuan Notary Office, intending to prove that on January 4, 2015, Xie Yang, the then attorney of Baifu Company, sent a statement of statement to Wang Zhenhua, the then attorney of Datang Company, via email, confirming that as of December 31, 2014, Baifu Company should pay Datang Company arrears, including 153 million yuan, corresponding to 10,150 tons of goods. Baifu Company has no objection to the authenticity of the evidence, but does not recognize Xie Yang's identity and believes that the notarization of Baifu Company's owed 153 million yuan to Datang Company. On August 22, 2017, the Beijing Arbitration Commission (2017) Beijing Arbitration No. 1360 determined that Xie Yang had the right to discuss various debt repayment issues with Datang Company on behalf of Baifu Company and its affiliated companies. On January 4, 2015, Xie Yang sent a statement of statement to Datang Company on behalf of Baifu Company and its affiliated companies. The statement shows that: 1. Datang Company and Baifu Company, including Shandong Baifu Logistics Co., Ltd., Tianjin Baifu Company, and Xingda Company; 2. The deadline is December 31, 2014;...2. The repayment amount (billion yuan) Baifu is 0.559; the inventory is 1.53 (10,150 tons). Datang Company claims that the inventory of 153 million is the amount of its litigation request in this case.

The first instance court held that the focus of the dispute in this case was: 1. How should the legal relationship in this case be defined; 2. Whether Baifu Company should return Datang Company’s payment for goods and the amount of goods to be returned, and the corresponding amount of interest losses during the period of occupancy of the payment.

1. Regarding how the legal relationship in this case should be defined and whether it is an unjust enrichment dispute. According to the facts that have been found, from January 20, 2012 to May 29, 2013, Datang Company and Baifu Company signed a total of 41 procurement contracts, agreeing that Baifu Company will sell nickel iron, nickel ore, refined coal, metallurgical coke and other goods to Datang Company. During the implementation of the contract, both parties shall use rolling settlement to pay the goods. Baifu Company regularly or irregularly delivers goods to Datang Company based on the types of goods agreed in the contract, and the amount of goods delivered each time is not consistent with the contract agreement. Datang Company pays the goods payment to Baifu Company from time to time, and the amount of payment does not correspond to the amount of goods agreed in each contract. Therefore, in this case, Datang Company claimed that the 153,468,000 yuan returned by Baifu Company was formed by adding the accumulated value of unsupplied goods under 41 contracts and part of the cap debt, and did not specifically correspond to a certain procurement contract. Although Baifu Company's funds obtained do not correspond to the specific procurement contract, its funds obtained are based on the long-term sales contract relationship between the two parties, and are not without legal basis and do not constitute a legal relationship of unjust enrichment. The legal obligations of this case should still be defined as the legal relationship of the sales contract.

2. Should Baifu Company return Datang Company’s payment for goods and the amount of money to be returned, and the corresponding amount of interest losses during the period of occupancy of the payment. First, whether Baifu Company has defaulted on the facts of insufficient supply and the value of unsupplied supply. According to Article 90 of the "Interpretation of the Supreme People's Court on the Application of " Civil Procedure Law of the People's Republic of China"", the parties shall provide evidence to prove the facts on which the litigation request is based or the facts on which the other party's litigation request is based, unless otherwise provided by law.If the parties fail to provide evidence or the evidence is insufficient to prove their factual claims before making the judgment, the party who is burdened with evidence to bear the adverse consequences. Baifu Company claims that the payment for goods between it and Datang Company should bear the burden of proof. The evidence submitted by Baifu Company to prove its supply quantity is the VAT invoice it issued to Datang Company. According to Article 8 of the "Interpretation of the Supreme People's Court on the Application of Laws in the Trial of Sales Contract Disputes" (Sales)), if the seller only uses special value-added tax invoices and tax deduction materials to prove that he has fulfilled the obligation to deliver the subject matter. If the buyer does not approve it, the seller shall provide other evidence to prove the fact that the subject matter is delivered. Other evidence that Baifu Company was unable to submit delivery of goods except for the VAT invoice to support the fact that it delivered the goods in full, so its burden of proof was not completed. Therefore, Baifu Company's defense that it has already cleared money and goods with Datang Company will not accept it. Regarding the amount of unsupported goods of Baifu Company, Datang Company submitted its payment status, the "Fuel Procurement Settlement" corresponding to the procurement contract involved, the arbitration award of Beijing Arbitration Commission (2016) Beijing Arbitration No. 0317, and the arbitration award of Beijing Arbitration Commission (2017) Beijing Arbitration No. 1360. Combined with the statement sent by Xie Yang, the then agent of Baifu Company, on January 4, 2015, on behalf of Baifu Company and its affiliated companies, as of December 31, 2014, Datang Company had at least two claims against Baifu Company, namely "Baifu 55.9 million" and "Inventory 153 million yuan". In addition, Baifu Company also believes that it has not supplied contract No. 7114. Therefore, Baifu Company has defaulted on the supply of insufficient goods, and the value of the supply was only 1715683565.63 yuan. Second, the amount of payment that Baifu Company should return. Datang Company claimed that the total payment of goods was RMB 1827867179.08 plus the amount of accounts payable by Datang Company stated in the "Debt Offset Agreement" signed by the two parties on April 20, 2014 was 41284386.55, totaling RMB 1869151565.63. However, based on the facts that have been found, the aforementioned 41284,386.55 yuan has been offset in the civil case No. 96 of Shandong Higher People's Court (2014), and this case should not be paid for the payment of Datang Company in the second time. Therefore, Baifu Company still owes Datang Company the value of goods is 112183613.45 yuan (Datang Company pays a total of 1827867179.08 yuan for goods in Baifu Company - the value of goods in Baifu Company is 1715683565.63 yuan). In addition, Datang Company believes that the 147,500,000 yuan claimed by it in the civil case No. 74 of Zhejiang Ningbo Intermediate People's Court (2014) Zhejiang Ningbo Shangchu No. 74 is included in the 15,3468,000 yuan claimed in this case. The final judgment in the case of Vientiane Company should return 36369405.32 yuan of Datang Company's payment for goods, and the judgment in the case has taken effect, so the 36369405.32 yuan should also be deducted from the amount claimed by Datang Company in this case. Although Datang Company claimed that it did not execute the above-mentioned claims in the case, since the case had made a judgment on the above-mentioned claims, based on the principle that one matter was no longer reasonable, the judgment should not be repeated in this case. In summary, the amount of payment that Baifu Company should return to Datang Company in this case was RMB 75814208.13 (RMB 112183613.45-RMB 36369405.32). Third, the issue of interest loss during the period of payment occupied by Datang Company. After Datang Company paid the payment for the goods, Baifu Company failed to deliver the goods in full constituted a breach of contract, and it shall compensate for the interest loss during the period of occupying Datang Company's payment for the goods. However, the "Debt Offset Agreement" signed by Datang Company and Baifu Company on April 20, 2014 did not clearly settle the performance of all the 41 procurement contracts involved. Datang Company's case claims that the date is used as the starting point for interest losses has no factual and legal basis. On November 25, 2014, Datang Company filed a lawsuit against Baifu Company to the Ningbo Intermediate People's Court of Zhejiang Province on the grounds that Baifu Company did not supply contract No. 7114 of the 41 procurement contracts involved. Because the 41 contracts were rolling settlement and Baifu Company also acknowledged that it did not supply contract No. 7114, this day should be regarded as the starting point for it to claim to return the payment for Baifu Company for the 41 procurement contracts involved. Therefore, Baifu Company shall compensate Datang Company for the interest loss during the period of occupying the payment based on the same loan base of RMB 75814208.13 from November 25, 2014 to the date of actual payment of Baifu Company.

The first instance court ruled: 1. Baifu Company returned 75814208.13 yuan to Datang Company; 2. Baifu Company compensated Datang Company for interest losses during the period of occupying the payment (based on 75814208.13 yuan, from November 25, 2014 to the date of actual payment of Baifu Company, and calculated according to the benchmark interest rate of the same loan for the same period in the same period); 3. Dismissed other lawsuits from Datang Company.

In the second instance, the parties did not submit new evidence. This court confirms the relevant facts found in the first instance.

This court also found out in the second instance that Datang Company applied for compulsory execution to the Xiangshan County People's Court of Zhejiang Province on September 28, 2016 for the civil case No. 74 of Zhejiang Ningbo Shangchu No. 74. The court issued an execution notice to Vientiane Company in accordance with the law on October 8, 2016, but Vientiane Company has not fulfilled its obligations after the deadline. Vientiane Company should still pay 36369405.32 yuan of execution funds and interest, and bear 209684 yuan of litigation fees and 103769.41 yuan of execution fees. After the execution of the court, it was found that there were two cars under the name of Vientiane Company with license plate numbers Zhejiang B××××× and Zhejiang B××××××. The court has sealed it but it has not actually controlled it. Datang Company failed to provide property that Vientiane Company can execute within a time limit, nor did it raise objections to the court. The court issued the execution ruling (2016) Zhejiang 0225 Execution 3676 on March 25, 2017, ending this execution procedure.

This court believes that the focus of dispute in this case is: 1. Whether the 41284386.55 yuan involved in the civil judgment No. 96 of Lu Shangchu Zi should be deducted in this case; 2. Whether Datang Company has the right to file a separate lawsuit with Baifu Company for the 36369405.32 yuan debt in the civil judgment No. 74 of Zhejiang Ningbo Shangchu Zi.

1. Regarding the issue of 41284386.55 yuan in the civil judgment No. 96 of Lu Shangchu. In the second instance of , Baifu Company's agent did not object to the amount of the money and recognized that the amount should not be deducted, so the amount should not be deducted.

2. Regarding the issue of 36369405.32 yuan debt claims involved in the Civil Judgment No. 74 of Zhejiang Ningbo Shangchu. Datang Company has the right to claim the amount separately from Baifu Company for the following reasons:

First, Article 20 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (I)" (hereinafter referred to as "Interpretation of the Contract Law I") stipulates that if the subrogation lawsuit filed by the creditor against the subrogation law by the creditor against the subrogation after being heard by the people's court, the sub-debtor shall fulfill the repayment obligation to the creditor, and the corresponding creditor-debtor relationship between the creditor and the debtor, the debtor and the sub-debtor will be eliminated. According to this provision, determines that the corresponding creditor-debtor relationship between the creditor and the debtor is that the sub-debtor has actually fulfilled the corresponding repayment obligation to the creditor. In the execution case involved in this case, the Xiangshan County People's Court of Zhejiang Province has made a ruling to end the execution because the property of Vientiane Company was not executed. Therefore, when Vientiane Company did not actually fulfill its repayment obligations, the creditor-debtor relationship between Datang Company and Baifu Company has not been eliminated, and Datang Company has the right to claim it separately from Baifu Company.

Second, subrogation litigation belongs to the debt preservation system. This system is to prevent the debtor's property from being improperly reduced or should be increased without increasing, creating obstacles to the creditor's realization of the creditor's rights, rather than requiring the creditor to choose between the debtor and the sub-debtor as the subject of fulfilling the obligation. If a creditor is required to choose one, it is tantamount to requiring the creditor to conduct a full investigation of the debt repayment ability of the sub-debtor before filing a subrogation lawsuit. Otherwise, he or she should bear the risk that the debt cannot be paid off on his own. This not only increases the economic cost of the creditor's lawsuit for subrogation, but also seriously undermines the creditor's enthusiasm for subrogation lawsuit, which is contrary to the purpose of the establishment of the subrogation lawsuit.

Third, this case does not violate the principle of "no matter is to be handled again". According to Article 247 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China", the main conditions for to determine whether it constitutes a duplicate lawsuit are whether the parties, the subject matter of the lawsuit, and whether the litigation request is the same, or whether the subsequent litigation request substantially denies the result of the judgment of the previous lawsuit, etc.Subrogation litigation is not the same as litigation against the debtor. From the perspective of the parties, subrogation litigation takes the creditor as the plaintiff and the sub-debtor as the defendant, while litigation against the debtor takes the creditor as the plaintiff and the debtor as the defendant. The identities of the two defendants are not identical. From the perspective of the subject matter and litigation request, although the subrogation litigation requires the sub-debtor to directly fulfill the repayment obligation to the creditor, it is aimed at the creditor's rights and obligations between the debtor and the sub-debtor, while the litigation against the debtor requires the debtor to fulfill the repayment obligation to the creditor, and is aimed at the creditor's rights and obligations between the creditor and the debtor. The two are also different in terms of the scope of the subject matter, legal relationship, etc. From the perspective of the requirements of prosecution, unlike litigation against the debtor, subrogation litigation not only requires the conditions for prosecution stipulated in Article 108 of the Civil Procedure Law, but also the conditions for litigation stipulated in Article 11 of the Interpretation of the Contract Law. Based on the above differences, subrogation litigation and litigation against the debtor are not the same matter. The two are only legally related. Therefore, Datang Company’s lawsuit filed in this case does not constitute a duplicate lawsuit.

To sum up, Datang Company’s appeal request is established and this court supports it. In accordance with Article 20 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (I)" and Article 247 of the "Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China", Article 170, Paragraph 2 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

1. Revoke the civil judgment of Shandong Higher People's Court (2018) Lu Minchu No. 10;

2. Shandong Baifu Logistics Co., Ltd. returns RMB 153468,000 to Beijing Datang Fuel Co., Ltd. within ten days from the date of the effective date of this judgment;

3. Shandong Baifu Logistics Co., Ltd. shall compensate Beijing Datang Fuel Co., Ltd. for the interest loss during the period of the occupied payment within ten days from the date of the effective date of this judgment (based on 153,468,000 yuan, from November 25, 2014 to the date of actual payment of Shandong Baifu Logistics Co., Ltd., according to the benchmark interest rate of the same loan for the same period);

4. Dismiss Beijing Datang Fuel Co., Ltd.'s other litigation requests.

The second instance case acceptance fee is 809,140 yuan, which will be borne by Shandong Baifu Logistics Co., Ltd.

This judgment is the final judgment.

Trial Judge Li Wei

Trial Judge Wang Yuying

Trial Judge Su Bei

June 20, 2019

Judicial Assistant Li Jingyang