Initially, when this petitioner came to request mediation of his relationship with the contractor, we advised him to file a lawsuit in court. However, after losing the case in the first instance due to various reasons, he continued to petition. Reluctantly, we helped him draft an appeal for the second instance, but he lost again.

Now, he intends to continue petitioning, and we have no choice but to help him draft a retrial application. Although we know it may not be of much use, this is all we can do for now. This case is complicated by many unexpected factors involving a lack of legal knowledge, and the lawyer may not have done his best to gather evidence, leading to the current situation. It’s really not easy.

Civil Retrial Application

Retrial Applicant: Wang XX, male, Han ethnicity, born on X/X/19XX, from XX County, Hunan Province, residing at XXXXXXXXX, ID number: 43XXXXXXXXXXXXXX.

Retrial Respondent: XX City XXXXXXXXX, address: XX Street, XX City. Legal representative: XXXX.

Reasons for Retrial Application:

The retrial applicant is dissatisfied with the civil judgment (No. XXXX) issued by the XX City Intermediate People’s Court on X/X/XXXX, and based on the provisions of Article 200, Paragraph 1, Items 1, 2, 3, and 6 of the Civil Procedure Law of the People’s Republic of China, which stipulate “new evidence sufficient to overturn the original judgment or ruling,” “lack of evidence to prove the basic facts determined in the original judgment or ruling,” “the main evidence used to determine the facts in the original judgment or ruling is forged,” and “the original judgment or ruling is indeed erroneous in the application of law,” the applicant hereby submits the following retrial application.

Retrial Claims:

1. Legally retry and revoke the civil judgment (No. XXXX) issued by the XX City People’s Court and the civil judgment (No. XXXX) issued by the XX City Intermediate People’s Court;
2. Legally order the respondent to return the risk deposit of 1.2 million yuan and compensate for economic losses of 1.1 million yuan, totaling 2.3 million yuan as a counterclaim;
3. Legally order the respondent to bear the litigation costs.

Facts and Reasons:

1. The basic facts determined in the second-instance judgment lack evidence.

   (1) The second-instance court determined that the applicant’s quarry contract was legal and valid, attributing all safety hazards of the quarry to the applicant, which lacks evidence.

   1. From the “Contract Agreement” signed by the applicant and the respondent, it is clear that a contractual relationship was established between the applicant and the respondent. Legally, “contracting” should mean that the mining rights holder (the contractor) charges a certain fee and retains the nominal mining rights, while transferring the actual mining rights to the contractor for independent operation, with the contractor independently enjoying the benefits and bearing the risks of operation, and handling subsequent mining rights expenses.

   2. According to the “Contract Agreement” and the facts ascertained by the second-instance court: a) The applicant contracted not just specific tasks like quarry production or sales, but the entire operation of the quarry, managing and using all assets of the quarry, exclusively enjoying the mining rights, and controlling the production and sales of the quarry; b) The applicant’s earnings were not wages for completing specific tasks but profits from operating the quarry, bearing all operational risks alone. c) As the contractor, the respondent, apart from collecting fees, although responsible for safety, could not interfere with the applicant’s operations and bore no operational risks or responsibilities. This means that after the quarry was contracted, all safety responsibilities during production fell solely on the applicant, unrelated to others with safety qualifications.

   3. After contracting the quarry, the applicant alone took on the operation and safety responsibilities, which was clearly unreasonable, as reflected in the investigation records of the XX City Safety Supervision Bureau. Regardless of who caused the quarry’s over-height and over-steep issues, the investigation records show management chaos and multiple safety hazards in the mining area. If the respondent’s so-called safety-qualified personnel were involved in the quarry’s operations, why were there so many safety hazards? If it is ultimately determined that the quarry’s over-height and over-steep issues were caused by the applicant, it further reflects that other safety personnel were not involved in the quarry’s operations, otherwise, such severe safety hazards would not have occurred, also proving that the applicant lacked any safety qualifications.

   4. The applicant does not possess any safety qualifications, and the evidence provided by the respondent proving the applicant held a “blasting operator certificate” is forged. The applicant never participated in any safety training or applied for a “blasting operator certificate.” The respondent forcibly “issued” this certificate through illegal channels without the applicant’s knowledge. The second-instance court’s determination that the applicant had relevant safety qualifications is completely inconsistent with the facts.

   5. If the second-instance court’s determination that the “Contract Agreement” is valid is accepted, the respondent, as the quarry owner, with the primary safety responsibility being the applicant’s manager Lu XX, the applicant, based on the “Contract Agreement,” did not obtain the legally required complete management rights. Without safety qualifications, according to the “Safety Production Law,” quarry managers Lu XX and Lai XX should be fully responsible for the quarry’s safety. Additionally, in the safety supervision department’s personnel registration, it has always been Lu XX and Lai XX, who passed the safety supervision department’s assessment, listed as responsible for safety. During the applicant’s quarry operation, any safety responsibilities, such as safety inspections and handling explosives, were managed by Lu XX and Lai XX. The applicant, lacking complete management rights, including legal safety management rights, could not participate in these safety management tasks. Lu XX and Lai XX had specific legal obligations, making it impossible for the unqualified applicant to participate in safety management, thus the applicant was always in a passive position and should not bear all safety responsibilities, which should be borne by the respondent’s manager Lu XX and shareholder Lai XX. Therefore, during the applicant’s production, the respondent failed to fulfill safety supervision responsibilities, leading to safety hazards and forced production suspension, for which the respondent should be responsible. This is also a breach of contract by the respondent. The agreement signed later between the applicant and the respondent on March 17, 2012, shows the respondent acknowledged its breach and agreed to suspend rent for January and February 2012 and reduce subsequent rent to compensate.

   6. During the second instance, the applicant requested the court to obtain safety inspection records from the XX City Safety Supervision Bureau, which the respondent acknowledged as genuine. These records not only show serious safety hazards before the applicant contracted the quarry but also that the respondent made rectification commitments to the safety supervision department during the applicant’s contract period. The second-instance court ignored these verified records, confirming that the quarry’s over-height and over-steep issues and major accident hazards formed during the applicant’s contract period and attributing all safety responsibilities to the applicant, which is completely contrary to the facts.

   (2) The second-instance court’s determination that the applicant should bear the quarry contract fees during the suspension period lacks evidence.

   1. The respondent breached the “Contract Agreement” in May 2012.

   In May 2012, the respondent forcibly entered the quarry, unreasonably obstructing the applicant’s use of the quarry. According to China’s “Contract Law,” the respondent’s actions indicated a refusal to fulfill the contract, constituting a unilateral termination by the respondent.

   On May 1, 2012, the respondent issued a “Notice” to the applicant, instructing him to leave the site, cut off water and electricity, and stationed personnel at the quarry to prevent the applicant from making modifications or starting work. On May 15, 2012, the XX City XX Street Comprehensive Management and Petition Stability Center mediated between the applicant and the respondent regarding unpaid wages for dismissed workers, resulting in a mediation agreement. Both parties agreed that after paying the wages, the applicant would dismiss all personnel and leave the site. After fulfilling the wage payment obligation, the applicant lost the right to operate the quarry and could no longer continue production. The respondent effectively reclaimed the quarry’s operation rights through its actions.

   Even if the second-instance court determined that the applicant’s payments to relevant departments between May 1 and May 15, 2012, “showed the applicant was still operating the quarry,” and did not consider May 1 as the contract termination date, the “Mediation Agreement” signed on May 17, 2012, clearly stated that the applicant “dismissed all workers and left the site” and “bore the debts during the operation period,” fully indicating the contract was terminated. The second-instance court’s extension of the contract termination date to October 2012 is completely contrary to the facts.

   After the contract relationship between the applicant and the respondent broke down on May 1, 2012, the applicant continued to live at the quarry to protect his nine months of hard work and significant financial investment, which is a form of self-help. The applicant did not maliciously occupy the quarry or seek illegal benefits but sought to protect his legitimate rights, which should not be considered illegal or a breach of contract. However, as an outsider with only his wife, the applicant could not compete with the local respondent’s geographical and numerical advantages. The respondent effectively reclaimed the quarry through its actions. According to China’s “Contract Law,” the respondent fundamentally breached the contract and should bear the违约责任. As the applicant, when the respondent fundamentally breached the contract, there was no need or ability to continue fulfilling obligations to the respondent. However, the second-instance court determined that the “Contract Agreement” was legally terminated by the respondent through notarized delivery of a “Termination of Contract Notice,” which is clearly a factual error and improper application of law.

   2. The applicant did not breach the contract.

   From the facts ascertained by the second-instance court, from the time the applicant contracted the quarry until the suspension for rectification, the applicant paid the full contract fees as agreed. Even after the suspension, when unable to continue production, the applicant still managed to pay the contract fees. In January and February 2012, when the contract fees were suspended, the applicant paid a total of 444,263.8 yuan in March and April, although not reaching the two-month total of 600,000 yuan, according to the “Contract Agreement,” the applicant did not breach the contract. However, on May 1, 2012, the respondent entered the quarry, unreasonably obstructing the applicant’s use of the quarry. Due to the respondent’s fundamental breach, the applicant could no longer pay the contract fees, thus there was no breach by the applicant.

   (3) The second-instance court’s determination of the quarry contract fees and calculation method during the suspension period lacks evidence.

   1. As mentioned above, on May 1, 2012, the respondent fundamentally breached the “Contract Agreement,” terminating the contract. Therefore, from May 1, 2012, the applicant no longer needed to pay the contract fees. The second-instance court’s determination that the applicant should pay the contract fees until October 2012 is clearly inappropriate.

   2. Regarding the contract fees for March and April 2012. The second-instance court determined that out of the 444,263.8 yuan paid by the applicant to the respondent in March and April 2012, 134,061 yuan was for other expenses paid by the respondent on behalf of the applicant, not contract fees, which lacks factual and legal basis. Reviewing the timing of the applicant’s payments, they were all made in March and April 2012, while the respondent’s so-called other expenses mostly occurred in May 2012. How can it be determined that the applicant’s payments were for future expenses? From May 1, 2012, the respondent reclaimed the quarry and terminated the contract, so why should expenses incurred in May be deducted from the applicant’s earlier payments? Although the respondent waived claims for mineral resource compensation fees and some environmental certification annual review fees, the second-instance court still recognized most of the respondent’s claimed expenses. Clearly, the second-instance court’s determination of these facts lacks factual and legal basis, showing bias towards the respondent.

2. The second-instance judgment is erroneous in the application of law.

   The validity of the “Contract Agreement” in this case should be determined in conjunction with the “Safety Production Law” and the “Contract Law.” According to Article 41 of the “Safety Production Law,” “Production and business units shall not contract or lease production and business projects, places, or equipment to units or individuals without safety production conditions or corresponding qualifications.” Additionally, Article 38 of the “Interim Provisions on the Administration of Mining Rights Transfer” states, “Mining rights holders shall not transfer mining rights to others for operation through contracting.” The “Contract Agreement” signed by the applicant and the respondent, contracting the quarry to the applicant without safety qualifications, constitutes a transfer of mining rights through contracting, seriously violating mandatory legal provisions and should be deemed invalid. According to Article 52 of the “Contract Law,” “…(5) violating mandatory provisions of laws and administrative regulations.” The “Contract Agreement” between the applicant and the respondent, contracting the quarry to the applicant without production qualifications, clearly violates mandatory legal provisions and should be deemed invalid. However, the second-instance court considered the “Contract Agreement” as the true intent of both parties, not violating mandatory legal provisions, and deemed it valid, with the respondent only transferring management rights, not mining rights, which is clearly an erroneous application of law.

3. The respondent should return the 1.2 million yuan risk deposit and compensate the applicant for economic losses of 1.1 million yuan.

   After signing the “Contract Agreement,” the applicant paid the respondent a 1.5 million yuan risk deposit (the respondent returned 300,000 yuan), and during the contract performance, the applicant paid a total of 2,534,263 yuan in contract fees. According to Article 58 of the “Contract Law,” “After a contract is invalid or revoked, property obtained due to the contract shall be returned; if it cannot be returned or is unnecessary to return, it shall be compensated at a discounted price. The party at fault shall compensate the other party for the losses incurred; if both parties are at fault, they shall bear corresponding responsibilities.” As mentioned above, the “Contract Agreement” violates mandatory legal provisions and should be invalid. Therefore, the respondent should return the 1.2 million yuan risk deposit and compensate the applicant for losses of 1.1 million yuan, totaling 2.3 million yuan.

In summary, the applicant believes that the civil judgment (No. 1731) issued by the XX City People’s Court and the civil judgment (No. 141) issued by the XX City Intermediate People’s Court lack evidence and are erroneous in the application of law. To protect the applicant’s legitimate rights, we hereby submit this retrial application to the Guangdong Provincial High People’s Court, requesting a retrial and amendment of the judgment.

Respectfully submitted to,

Guangdong Provincial High People’s Court

Applicant:

November 19, 2013