In 2008 the agency's case, the heating enterprises for taxation fee, a defendant in the trial of first instance GXS lost, second instance court entrusted us soon as an attorney, after accepting the entrustment, I found the so-called "hot money" does not belong to the category of civil cases of second instance trial, that effect is good, a little proud of the following. After the second instance court reversed a judgment rejecting, direct heating enterprises litigation request, have a great sense of achievement. But......

   After a lapse of three years, heating units are exceptionally adept in trickery from high court to get a revocation of the two trial order retrial ruling, so that the result is not good, still be prepared to meet the challenge made full preparations. The following is the agent of my comments, basically reflects my thoughts and focus.

Generation Science Italy See

After a trial, it is clear October machinery required to pay "hot money" claims on the basis of neither contract nor any other civil rights can produce effective basis, but only City Hall file, like whether the file has been cancelled from October, the request for payment of 722600 yuan is not civil claims, does not belong to the property relations between equal entities civil relations, it shall not belong to the people's court civil case category accepted.

Between October two, mechanical and supply and marketing cooperatives "taxation fee" never established any form of contract, legal consequences shall bear the burden of proof is not mechanical October. But the trial has clear heat fee no controversy, there is "no heating contract dispute between the two sides" therefore, the qualitative error in this case leads to confusion of legal relationship.

In October the machinery provided August 17, 2001 "city" or heat contract not agreed any "hot money" content from first to last, and any oral or written contract is not in the "heating contract dispute case" in any two sides "hot money" reached, whether the two sides set up the contract dispute. Therefore, according to the Supreme People's Court on the judicial interpretation of the provisions of the contract law in October two, the burden of proof obligations is not mechanical, confirmed the two sides have agreed by the standard hot fee and the specific amount of the contract.

A type of civil debt than four contract obligation, tort obligation, because no management, unjust enrichment. So the case since no debt contract based on the premise, and not have the other three kinds of debt, so the case is that the two sides of the contractual relationship existed between the premise there is clearly wrong, should be corrected.

Three, the civil trial in accordance with the law can not be City Hall file provided any mechanical October cited as the basis of decision, and City Hall file October machinery required to pay are based on 2002 shall be repealed or cancel, civil litigation is filed in 2007 when it had no effective basis.

Firstly, according to the "Supreme People's Court on the judicial documents cited laws, regulations and other normative documents" fourth stipulates clearly:The Civil referee copy clerk shall quote the law, legal interpretation and judicial interpretation. The applicable administrative regulations, local regulations or autonomous regulations and separate regulations, and can be used directly.In October, the autonomous region machinery (1999) new Office No. 27, (2003) 85, and minutes of meeting apparently even government regulations are not, of course, does not belong to the "local regulations, autonomous regulations and separate regulations," category, can not be used as the basis of civil trial;

Secondly, the new government (2003) No. 85 concerning the retroactivity of letter identification basis not civil claims, but has no right to any civil claims "retroactive" the law will define the problem definition, the file was illegal, not as a court of the civil dispute when determining whether retroactive effect capacity of the;

Finally, citing the October effect even mechanical offer lower than the government rules and regulations of the government documents, the case has been trying to identify the above documents are void or cancelled, and the abolition of the time in 2002, so October machinery in 2005 collection is not protected by the law, not to mention the 2007 prosecution has no effective basis.

Four, the "hot money" itself is illegal fees, objective facts because of its illegality is a nationwide ban, civil trial should not inconstant in policy by the government of the illegal policies.

The concept of heat charge and heat fee is not the same in nature, heating fee is based on the contract between the heating and the heat generated by the heating side, but the transfer fee is heating pipe network construction fees, which belongs to the range of city municipal infrastructure. The heating system reform is the ultimate thermal commercialization, since thermal belongs to commodity, with heat fee payment thermal units or individuals for output commodity costs borne by the operators of heating enterprises, because the laying heating pipe network facilities construction cost is larger, the heating system reform beginning students the concept of "heating facilities investment subsidy" a matter of fact, the cost of heating pipe network facilities. The cost of this is not in accordance with the law shall be borne by the unit or individual with heat, heat units and individuals as consumers pay after thermal thermal commodity price is 22 yuan per square meter, but also bear the heat pipe and facilities construction fee is clearly in violation of the law. I from 2000 to 2002 heat units and individuals have to charge such fees, but then the government abolished, confirmed its like "heating funds" illegal fees.

In 2006 the city has expressly provided "infrastructure" the use of central heating "infrastructure supporting fees" fees, and collect payment departments and departments also specifically for the units and the construction administrative department of construction and non heat and heating units. The historical development and fully confirmed the heating unit to heat unit charged with so-called "heating facilities cost" is illegal without any evidence of malicious passed on operating costs, should not get any support.

Five, even assuming that the taxation fee legitimate and belongs to civil claims, payment subject of supply and marketing cooperatives is not the so-called "hot money".

The first,Central heating, heating units supply and marketing cooperative system where the small piece of the heat source unit, heating range including their units of the office, residential and ancillary buildings, including heating customers near the fifth middle school is the supply and marketing cooperatives. Supply and marketing cooperatives had spent about 3000000 yuan of funds to buy laying heating pipeline, heating equipment and investment in the establishment of a boiler room (see third, 8, 9 and seventh groups of evidence), the equipment and facilities of the ownership belongs to the supply and marketing cooperatives, there is no transfer of central heating units, then the part of any premises facilities to pay a fee the;

 Second, "love fee" is the essence of heating pipe network construction costs of infrastructure supporting fees, according to the November 16, 2006 autonomous region development and Reform Commission, Ministry of Finance (2006) 1731 document, "units and individuals both self heating boiler room, in accordance with the requirements of environmental protection into the City Central heating network, does not pay the infrastructure supporting fees". This is still a valid file fully confirmed the supply and marketing cooperatives need not pay to "love fee" for the nominal essence is the centralized heat supply infrastructure supporting fees.

In October third, according to the new price charged mechanical bus word (1997) 27: "clearly in the 1999 new construction capacity user one-time construction area per square meter of a thermal paste" 40 yuan, the supply and marketing cooperative housing were built in 1955 and 1978, does not belong to the main pay the file within the scope of.

To sum up, the supply and marketing cooperatives invested a huge amount of assets for heating, to respond to the government's blue sky project requirements will be incorporated into the central heating system of heating facilities, without any form of return. On the contrary, in October the machinery used heating facilities, supply and marketing cooperatives to the supply and marketing cooperatives in ten years and to collect the fees heating thermal nearly 4000000, which in turn will supply and marketing cooperatives for heating facilities, own to pay a high construction costs, the gangster logic should not receive any form of legal support.

Six,The so-called "hot money" that belongs to civil rights and effectively established in October, the respondent to pay transfer fees mechanical requirements that have exceeded the limitation of action for the loss of the right to win.

First of all, the prosecution has exceeded the limitation of action.

In October the machinery such as the so-called "hot money" civil rights violations shall be incorporated into the central heating in the latest two years after the expiration of the proceedings at the request of the respondent units in 2000, but the case until 2007 August October machinery proceedings, request the people's court the period of limitation of action to protect civil rights shall be two years, the the case has already exceeded the limitation of action shall reject the;

Secondly, the August 18, 2005 "hot fees notice" cannot prove the limitation interrupt or re calculation. The reasons are as follows:

First, both sides never will retie fee confirm creditor debt, no CDO called collection is of course no premise; second, illegal creditor's rights are not protected by the law. Hot fee was abolished in October, mechanical notice when the urge is known is not the legitimate rights; third, "the Supreme People's Court on exceed the limitation of the repayment agreement concluded between the parties should be protected by the law of the reply", over a period of limitation of action only the parties to reach a voluntary repayment agreement belongs to the confirmation of the debt or the new debt, the case only supply and marketing agency staff to sign "notice" clearly does not constitute a confirmation of the debt or agrees to perform; fourth, October mechanical quoted "the Supreme People's Court on over a period of litigation prescription borrowers in the notice from the legal effect of a single sign or seal the reply" (hereinafter referred to as the reply) obviously system error understanding, understanding of the response has been clear for the special creditor's rights in view of the special subject of banks and other financial institutions such as bank loan, this does not apply to ordinary civil subject and the "hot money" this special called debt. Fifth, exceeded the limitation of action can be identified "premise agrees to perform" must be the supply and marketing cooperatives make a valid signature, rather than any staff can be made to sign the form, so the notice on the supply and marketing cooperative staff sign is not a valid confirmation of creditor's rights subject, nor does it constitute the limitation of actions or re calculation.

Seven, the supply and marketing cooperative is a legal cause of full funding, such as accepting illegal request the court to support the October machinery, it is the result of the government finance expenditure itself responsible for heating the infrastructure costs of compulsory, but now not only did not receive the infrastructure cost of central heating, heating enterprises also have to pay a sum of infrastructure October machinery central heating costs, the obvious irrational paradox in modern society of rule by law and should not happen.

V. the mechanical October had no basis in fact, on the basis of the contract or legal basis, and should be rejected according to law!