The Supreme People's Court Issues Two Opinions to Strengthen Good-Faith Civil Enforcement and Promote Lawyer Participation in Enforcement (Full Text Attached)
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2020-01-03
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The Supreme People's Court
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The Supreme People's Court Issues Two Opinions to Strengthen Good-Faith Civil Enforcement and Promote Lawyer Participation in Enforcement (Full Text Attached)
On January 2, 2020, the Supreme People's Court held a press conference to release the "Opinions of the Supreme People's Court on Further Strengthening the Concept of Good-faith and Civilized Enforcement in Enforcement Work" (hereinafter referred to as the "Opinions on Good-faith and Civilized Enforcement") and the "Opinions of the Supreme People's Court, the Ministry of Justice, and the All China Lawyers Association on Deeply Promoting Lawyers' Participation in the Enforcement Work of People's Courts" (hereinafter referred to as the "Opinions on Lawyers' Participation in Enforcement"), along with typical cases of good-faith and civilized enforcement, and answered questions from reporters. Meng Xiang, member of the Adjudication Committee of the Supreme People's Court and Director-General of the Enforcement Bureau, Zhao Jinshan, Deputy Director-General of the Enforcement Bureau of the Supreme People's Court, and He Dongning, Deputy Director-General of the Enforcement Bureau of the Supreme People's Court, attended the press conference, which was presided over by Li Guangyu, spokesperson of the Supreme People's Court.
Meng Xiang briefed on the relevant situation of the two judicial documents:
I. Relevant Information on the "Opinions on Good-faith and Civilized Enforcement"
Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at its core has put forward the major decision and deployment of "effectively solving the difficulty in enforcement" from the height of the overall strategic situation of the Party and the country's development. The people's courts have strictly implemented and fully tackled key problems, timely proposed and achieved the phased goal of "basically solving the difficulty in enforcement" as scheduled, forming a high-pressure situation against evasion of enforcement and a good atmosphere of understanding, supporting, and participating in enforcement by the whole society. "Basically solving the difficulty in enforcement" has greatly improved the efficiency of cashing effective legal documents, greatly reduced the cost for parties concerned, especially private enterprises and small and medium-sized enterprises, to realize their winning rights, and vigorously promoted the improvement of China's market-oriented, law-based, and internationalized business environment. In October 2019, the World Bank released the "2020 Global Business Environment Report", in which China's global ranking of business environment jumped from 46th in the previous period to 31st, ranking among the top ten economies with the largest improvement in optimizing the business environment for two consecutive years. The rule of law is the best business environment. The work of the people's courts, including enforcement work, has made important contributions to this.
In 2016, the CPC Central Committee and the State Council issued the "Opinions on Improving the Property Rights Protection System and Protecting Property Rights According to Law". In December 2019, they specially issued the "Opinions on Creating a Better Development Environment to Support the Reform and Development of Private Enterprises", putting forward a series of reform measures to encourage and support the reform and development of private enterprises. In order to strictly implement the spirit of the relevant central documents and respond to the needs of civil enforcement practice, according to the Civil Procedure Law and relevant judicial interpretations, the Supreme People's Court has issued the "Opinions on Good-faith and Civilized Enforcement" on the basis of full investigation, repeated research and argumentation.
The "Opinions" are divided into 6 parts with a total of 22 articles. The content is relatively rich and the operability is also strong. Due to time constraints, I will focus on the following aspects:
First, it is strictly forbidden to seal up properties exceeding the target amount and to seal up properties randomly. In view of the problem of over-sealing and random sealing in some courts in practice, first of all, the "Opinions" clearly state that we must take effective measures to resolutely correct the phenomenon of over-sealing and random sealing in practice, unblock the channels for the people to reflect problems, implement "one case with two investigations" for relevant clues, and seriously deal with non-standard behaviors according to law. Secondly, it is stipulated that when freezing the deposit in the bank account of the person subject to execution, the specific amount should be clearly defined, and the flow of funds and the use of the account outside the frozen amount should not be affected; for real estate with a large volume, if its value obviously exceeds the amount of the creditor's rights, the corresponding value part should be sealed up; if the real estate has only one property right certificate and cannot be sealed up separately, the people's court should actively coordinate with relevant departments to handle the separate registration and separate sealing up when necessary. If the relevant departments refuse to assist without justified reasons, the people's court will take punitive measures against them according to law. Finally, in Article 7 of the "Opinions", we also stipulate that when freezing the stocks of listed companies, the number of stocks to be frozen shall be calculated based on the amount of the creditor's rights. When calculating, the value of each share shall be based on the closing price of the trading day before the freezing, and shall generally be determined within a range not exceeding 20%, and it is strictly forbidden to freeze the stocks of listed companies exceeding the target amount. In addition, for the stocks that have been pledged, and the applicant for enforcement in this case is not the pledgee, in view of the problems existing in practice such as the difficulty in determining the number of frozen stocks and the risk of freezing exceeding the target amount, we have also established a new type of freezing method for pledged stocks after communicating with relevant departments. The main purpose is to protect the legitimate rights and interests of creditors and prevent and solve the problem of freezing pledged stocks exceeding the target amount. All along, the Supreme People's Court's position on the issue of over-sealing and freezing is firm and its attitude is resolute. In the next stage, we will increase the supervision and rectification of this issue, and we also hope that leaders and comrades of courts at all levels will attach great importance to it and strictly implement it.
Second, ensure the maximization of the interests of both parties in the property realization process. First of all, on the basis of the existing judicial interpretations, the application of the sale procedure is further clarified or newly added. For example, on the basis of the provisions of the existing judicial interpretations, Item 2 of Article 9 of the "Opinions" adds a situation of direct sale, that is, if the proceeds from the direct sale are sufficient to pay off the enforcement debt and do not harm the interests of third parties, even if the enforcement creditor does not agree, the direct sale can be carried out without auction. For another example, Item 3 of Article 9 of the "Opinions" stipulates that if the person subject to execution believes that the court's assessed price is too low and the auction may damage his interests, and applies to sell the property himself at a price not lower than the assessed price, the people's court, after review, believes that there is no malicious collusion between the person subject to execution and others, deliberately suppressing the assessed price in the property assessment process, and selling the property at a low price at this price, it can also be allowed. Secondly, in the online auction process, maximize the attraction of more market players to participate in the bidding and avoid the failure of property auctions. For example, Article 10 of the "Opinions" stipulates that the people's court shall give full play to the professional advantages of the online auction platform and auction auxiliary institutions in the auction process, and do a good job in the video promotion of the auction items and on-site viewing. For another example, although according to the provisions of the existing judicial interpretations (Article 30 of the "Provisions on Auction and Sale"), after the auction property is sold, the people's court shall deliver it to the buyer within the prescribed time limit, unless it cannot be handed over according to law. However, in practice, some courts believe that the eviction is difficult when auctioning real estate, so they indicate in the publicity information that "they are not responsible for the eviction", which makes bidders dare not bid, which will not only lead to the failure of the property auction due to no one bidding, but also seriously damage the credibility of the judicial auction. Article 10 of the "Opinions" explicitly prohibits this.
Third, strictly apply the measures of the list of dishonest persons and restriction on consumption. First of all, Article 14 of the "Opinions" reiterates that the people's court must strictly take these two measures in accordance with the conditions and procedures stipulated in the relevant judicial interpretations, and Article 16 clarifies several situations in which punitive measures shall not be taken. Secondly, Article 15 of the "Opinions" stipulates that local courts may, in light of the actual circumstances of the case, grant a grace period of one to three months to the person subject to execution who decides to take punitive measures. If the person subject to execution voluntarily performs the obligations determined in the effective legal document within the grace period, no punitive measures will be taken; if the person subject to execution fails to perform the obligations, punitive measures will be taken again. Through this deterrent mechanism, on the one hand, it can urge the person subject to execution to perform his obligations, and on the other hand, it can minimize the adverse impact on the person subject to execution. Finally, Article 17 of the "Opinions" stipulates several situations in which the measures to restrict consumption are lifted or temporarily lifted. For example, after a company is restricted from consumption, if its legal representative or main person in charge does need to be changed due to the company's business management needs, and the original legal representative or main person in charge applies for lifting the restriction on consumption measures against himself, the people's court, after review, believes that the legal representative or main person in charge does not belong to the actual controller of the company or the person directly responsible for affecting the performance of the debt, that is to say, if there is no malicious change or evasion of enforcement, it shall be allowed. For another example, for the situations existing in practice where the individual who is restricted from consumption needs to rush to other places urgently because he himself or his close relatives suffer from serious diseases, or his close relatives die, etc., out of humanitarian considerations, the people's court shall temporarily lift the restrictions on taking airplanes and high-speed trains.
Issues that people's courts at all levels should pay attention to when implementing the "Opinions":
First, it is necessary to further enhance the initiative and sense of responsibility in benevolent and civilized enforcement, fully recognize the significant meaning of benevolent and civilized enforcement in improving the strict, standardized, fair, and civilized enforcement level of the people's courts, safeguarding social fairness and justice, promoting social harmony and stability, improving the property rights protection system, promoting the improvement of the business environment, and promoting high-quality development. In the enforcement process, this "Opinion" should be strictly implemented.
Second, it must be fully recognized that, at present, the main contradiction and prominent problem in enforcement work is still the evasion and avoidance of enforcement by the persons subjected to enforcement. Highlighting the mandatory nature of enforcement work, continuously increasing enforcement efforts, and severely cracking down on evasion, avoidance, and resistance to enforcement remain the main themes of enforcement work. Courts at all levels should follow the established work deployment, persevere, and work tirelessly to further consolidate and deepen the achievements of "basically solving the difficulty in enforcement," further improve the long-term mechanism for solving the difficulty in enforcement, and strive towards the goal of "effectively solving the difficulty in enforcement" proposed by the Party Central Committee.
Third, leading cadres and enforcement officers of courts at all levels must accurately grasp the essence of benevolent and civilized enforcement. Benevolent and civilized enforcement is a stricter, more standardized, and fairer requirement for enforcement work based on lawful enforcement. It should be recognized that strengthening the concept of benevolent and civilized enforcement is not to weaken enforcement efforts, nor is it to relax work standards or lower work requirements. It is necessary to resolutely eliminate passive enforcement, delayed enforcement, or selective enforcement under the pretext of "benevolent and civilized enforcement," and also to effectively prevent the persons subjected to enforcement from taking the opportunity to transfer property, evade enforcement, and damage the legitimate rights and interests of creditors.
II. Relevant Information on the "Opinions on Lawyers' Participation in Enforcement"
In solving the difficulty in enforcement, under the strong leadership of the Party Central Committee, the people's courts have given full play to the institutional advantages of China's socialist system, which can concentrate efforts to accomplish great things, and strived to win the support and cooperation of all sectors of society, and actively built a comprehensive governance and source governance work pattern to solve the difficulty in enforcement. The No. 1 document issued by the Central Comprehensive Rule of Law Committee in 2019, "Opinions on Strengthening Comprehensive Governance to Effectively Solve the Difficulty in Enforcement from the Source," clearly proposes that "all regions and departments should actively introduce professional forces to participate in enforcement, establish and improve the working mechanism for arbitration, notarization, lawyers, accounting, auditing and other professional institutions and personnel to deeply participate in enforcement, and form a social synergy to solve the difficulty in enforcement." The "Outline of the People's Court Enforcement Work (2019-2023)" issued by the Supreme People's Court also regards "encouraging and supporting lawyers to participate in enforcement" as one of the important tasks of improving the open, dynamic, transparent, and convenient sunshine enforcement system, requiring "taking multiple measures to increase the proportion of lawyers participating in enforcement, building an information platform, providing convenience for lawyers to participate in enforcement, and giving full play to the role of lawyers in enforcement." In order to thoroughly implement the requirements of the Party Central Committee, on the basis of extensive solicitation of opinions and full demonstration, the Supreme People's Court, the Ministry of Justice, and the All China Lawyers Association jointly studied and formulated the "Opinions on Deeply Promoting Lawyers' Participation in the Enforcement Work of People's Courts."
The promulgation of the "Opinions" will help clarify the status and role of lawyers in promoting the enforcement work of the people's courts, provide a sufficient basis for promoting the comprehensive and in-depth participation of lawyers in enforcement work; help give full play to the professional advantages of lawyers, build a good interaction between lawyers and parties, and between lawyers and enforcement personnel, and establish and improve a long-term mechanism for solving the difficulty in enforcement; and help gather forces from all parties to enhance the legal awareness, integrity awareness, and risk awareness of the whole society, and promote the comprehensive rule of law and the construction of a social integrity system.
The "Opinions" consist of 3 parts and 16 articles. It mainly includes the following aspects:
First, deeply understand the significance and function of lawyers' participation in enforcement work. As socialist legal workers and an important part of the legal profession community, lawyers are important participants in the trial and enforcement activities of the people's courts, and play an important role in promoting the comprehensive rule of law and building a socialist rule of law country. In recent years, with the continuous increase in the number of enforcement cases and the continuous improvement of the level of enforcement specialization, many parties have great needs in terms of professional knowledge and finding people and property, and urgently need the deep participation of professional forces such as lawyers to give play to their positive role in the application of legal norms, the search for property clues, the assessment of enforcement risks, and the relief of legitimate rights and interests, and to meet the increasing judicial needs of the people by providing high-quality and efficient legal services.
Second, give full play to the important role of lawyers in enforcement work. The "Opinions" describe in detail how to give full play to the important role of lawyers in enforcement work in ten aspects. Each aspect is explained from the perspective of the role of lawyers and the guarantee of court functions. Due to time constraints, I will briefly introduce the relevant content: First, give full play to the role of lawyers in promoting the resolution of contradictions and disputes. The people's courts should establish and improve a diversified dispute resolution mechanism for enforcement cases, and explore and promote the establishment of "lawyer volunteer service posts" and "lawyer mediation studios." Second, give full play to the role of lawyers in property preservation, enforcement investigation, property control, and disposal. The people's courts should increase the application of preservation, and publicize the conditions, methods, and procedures for applying for preservation; broaden the methods and channels for enforcement investigation, and study and establish relevant working mechanisms such as entrusting lawyers to investigate; and protect the professional rights of lawyers in the property disposal process in accordance with the law to ensure the openness, fairness, and impartiality of the property disposal process. Third, give full play to the role of lawyers in preventing and combating evasion of enforcement. The people's courts should take measures such as restricting consumption and including them in the list of dishonest persons subjected to enforcement in accordance with the law, and increase the prevention and crackdown on evasion of enforcement. Fourth, give full play to the role of lawyers in participating in distribution and enforcement transfer to bankruptcy procedures. The people's courts should accept applications for participation in distribution in accordance with the law, and transfer enforcement cases to bankruptcy review in accordance with the law. Fifth, give full play to the role of lawyers in the procedure for terminating this enforcement and enforcement relief. The people's courts should apply the procedure for terminating this enforcement in accordance with the law, and deepen the system of lawyers' participation in resolving and acting as agents for appeals. Sixth, give full play to the role of lawyers in publicizing the rule of law in enforcement. The people's courts, judicial administrative organs, and lawyers associations should jointly guide the people to establish awareness of the rule of law and risk prevention awareness, and promote the solution of the difficulty in enforcement from the source.
Third, effectively strengthen the guarantee for lawyers' participation in enforcement work. The people's courts should protect the right of parties to entrust lawyers to act as agents in enforcement cases in accordance with the law; fully implement the requirements of judicial openness, unblock normal communication and channels for expressing opinions, create a clean, fair, just, open, and transparent judicial environment for lawyers to play their role, and actively build a new type of benign interaction relationship between enforcement personnel and lawyers that is mutually respectful, equal, supportive, supervisory, and properly communicative; build "micro-courts" and "smart courts," build a convenient and efficient litigation service system, and provide parties and agent lawyers with "one-stop" enforcement information disclosure services and more convenient channels for contacting judges; strengthen the supervision and management of lawyers' practice in enforcement work; and improve the communication and coordination mechanism among the people's courts, judicial administrative organs, and lawyers associations, study and solve the problems encountered by lawyers in participating in enforcement work, and timely coordinate and handle relevant matters such as infringement of lawyers' practice rights and lawyers' violations of laws and regulations.
Issues that should be paid attention to when implementing the "Opinions":
First, it is necessary to further improve the understanding of the importance of lawyers' participation in enforcement work, combine with their own work reality, actively explore and innovate various working mechanisms to protect lawyers' practice rights, improve lawyers' practice environment, and promote lawyers' participation in enforcement, and provide support and convenience for lawyers to perform their duties and give play to their advantages.
Second, it is necessary to actively explore various ways and channels for lawyers to participate in enforcement work, give full play to the functions and advantages of lawyers in resolving contradictions and disputes, investigating and controlling property, providing rights relief, and publicizing the rule of law, mobilize the enthusiasm of lawyers to participate in enforcement, support enforcement, and supervise enforcement, and form a social synergy to resolve the difficulty in enforcement.
Third, execution work should be carried out in strict accordance with laws, judicial interpretations, and normative documents. While further respecting and protecting the practice rights of lawyers, the "Ten Prohibitions" for regulating execution behaviors should be strictly implemented to prevent execution integrity risks. Fourth, communication and exchanges between the people's courts and judicial administrative organs and lawyers associations should be strengthened, and lawyers' opinions and suggestions on the execution work of the people's courts should be listened to regularly or irregularly, so as to continuously promote the formation of a working pattern of departmental linkage, joint management, division of labor and cooperation.
Fa Fa [2019] No. 34
Notice on Printing and Distributing the "Opinions on Deeply Promoting Lawyers' Participation in the Enforcement Work of People's Courts" by the Supreme People's Court, the Ministry of Justice, and the All China Lawyers Association
To the Higher People's Courts, Departments of Justice (Bureaus), and Lawyers Associations of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region; and the Department of Justice and Lawyers Association of Xinjiang Production and Construction Corps:
In order to earnestly implement the requirements of the Central Comprehensive Rule of Law Committee's "Opinions on Strengthening Comprehensive Governance to Effectively Solve the Difficulty in Enforcement Problems from the Source" (Zhong Fa Wei Fa [2019] No. 1) and form a joint force to solve the difficulty in enforcement, the Supreme People's Court, the Ministry of Justice, and the All China Lawyers Association have researched and formulated the "Opinions on Deeply Promoting Lawyers' Participation in the Enforcement Work of People's Courts." It is now issued to you for your earnest implementation.
Supreme People's Court Ministry of Justice All China Lawyers Association
December 25, 2019
Opinions of the Supreme People's Court, the Ministry of Justice, and the All China Lawyers Association on Deeply Promoting Lawyers' Participation in the Enforcement Work of People's Courts
In order to thoroughly implement the major decisions and deployments of the Fourth Plenary Session of the 18th CPC Central Committee on "effectively solving the problem of enforcement difficulties" and "legally ensuring that successful parties can realize their rights and interests in a timely manner," and in accordance with the Central Comprehensive Rule of Law Committee's "Opinions on Strengthening Comprehensive Governance to Effectively Solve the Problem of Enforcement Difficulties from the Source" (Zhong Fa Wei Fa [2019] No. 1) regarding "all regions and departments should actively introduce professional forces to participate in enforcement, establish and improve the working mechanism for arbitration, notarization, lawyers, accounting, auditing and other professional institutions and personnel to deeply participate in enforcement, and form a social synergy to solve the problem of enforcement difficulties," and in accordance with relevant laws and regulations, this opinion is formulated to further promote lawyers' participation in the enforcement work of the people's courts.
I. Deeply understand the importance of lawyers' participation in enforcement work
1. The enforcement work of the people's court is an important means to ensure the comprehensive and accurate implementation of the law by relying on national coercive force. It is a key link to safeguard the legitimate rights and interests of the people and realize social fairness and justice. Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping as the core has attached great importance to the enforcement work of the people's court, and has determined that solving the difficulty in enforcement is an important part of comprehensively governing the country according to law, and has made major decisions and deployments, requiring all regions and relevant departments to fully understand the important significance of enforcement work, strengthen the implementation of responsibilities, form a joint force, and actively build a comprehensive governance and source governance to solve the difficulty in enforcement.
Lawyers, as socialist rule of law workers and an important part of the legal profession community, are important participants in the trial and enforcement activities of the people's courts, and play an important role in promoting the comprehensive rule of law and building a socialist rule of law country. Deeply promoting lawyers' participation in enforcement work helps to implement the people-centered development thought, practice the purpose of serving the people through justice, and protect the legitimate rights and interests of the parties in accordance with the law; it helps to establish and improve a long-term mechanism for solving the difficulty in enforcement, improve the ability of enforcement work, and maintain a high level of operation of enforcement work; it helps to gather strength from all parties, enhance the legal awareness, integrity awareness, and risk awareness of the whole society, and promote the comprehensive rule of law and the construction of a social integrity system.
2. Fully leverage the important role of lawyers in enforcement work
2. Fully leverage the role of lawyers in promoting the enforcement work of the People's Courts. In recent years, with the continuous increase in the number of enforcement cases and the continuous improvement of the level of enforcement specialization, there is an urgent need for professional forces such as lawyers to deeply participate in enforcement, promote the timely and effective enforcement of effective legal documents by playing functional roles and undertaking some auxiliary work. In particular, many parties have great needs in terms of professional knowledge and finding people and property, and need lawyers to play an active role in the application of legal norms, the search for property clues, the assessment of enforcement risks, and the relief of legitimate rights and interests, and meet the growing judicial needs of the people by providing high-quality and efficient legal services.
People's Courts at all levels should further enhance their understanding of the importance of lawyers' participation in enforcement, and in light of their actual work, actively explore and innovate various working mechanisms to protect lawyers' practice rights, improve their practice environment, and promote their participation in enforcement, so as to provide support and convenience for lawyers to perform their duties and leverage their strengths in accordance with the law.
3. Fully leverage the role of lawyers in promoting the resolution of conflicts and disputes. Enforcement work is highly adversarial and risky, and can easily trigger conflicts and disputes. Fully leverage the bridging role of lawyers to promote communication and coordination between parties, and between parties and the People's Court. The lawyer should guide and assist the parties to correctly understand the judgment results of the effective legal documents, so that they are fully aware of the risks and consequences of refusing to perform legal obligations. If the parties do not approve of the judgment results, they should be guided to resolve them through appropriate procedures in accordance with the law. If there is a possibility of settlement, a settlement proposal may be put forward to assist the client in reaching an enforcement settlement with the other party. When assisting a party in drafting a settlement agreement, it shall adhere to the requirements of diligence and professionalism to ensure that all elements are complete, the writing is standardized, and it is practical and feasible. If a party fails to perform the settlement agreement, the lawyer may assist the client in applying to the People's Court for resumption of enforcement or filing a lawsuit with the People's Court for performance of the enforcement settlement agreement in accordance with the law.
People's Courts at all levels should establish and improve a diversified dispute resolution mechanism for enforcement cases, encourage resolving enforcement disputes through methods such as lawyer mediation, explore and promote the establishment of "Lawyer Volunteer Service Posts" and "Lawyer Mediation Studios," and effectively connect enforcement and mediation efforts. This aims to create conditions and convenience for lawyers to participate in conflict resolution as neutral third parties.
4. Fully leverage the role of lawyers in property preservation. Attorneys should fully explain litigation risks to their clients, clarify the importance of property preservation for realizing their rights, and guide them to promptly apply to the People's Court for property preservation. If preservation measures have already been taken, remind clients that they can apply to the People's Court for renewal of preservation seven days before the expiration of the preservation period; if the conditions for lifting the preservation are met, remind clients that they can apply for lifting the preservation in a timely manner.
People's courts at all levels should increase the application of litigation preservation, simplify the preservation work process, promote the preservation insurance guarantee mechanism, and provide convenience for parties to apply for preservation. The conditions, methods, and procedures for applying for preservation should be made public. Property preservation applications that meet the conditions should be accepted and preservation measures should be taken in a timely manner. The content of the preservation ruling, the expiration date of the preservation period, and related matters for applying for renewal of preservation should be informed to the applicant or the attorney, so as to fully protect the parties and their attorneys' right to know, right to object, and right to reconsideration.
5. Give full play to the role of lawyers in enforcement investigations. The executing applicant's attorney may assist the executing applicant in providing the people's court with information or clues about the property status of the person being executed, apply to the people's court for investigation, and, if necessary, apply to the people's court for the issuance of a reward announcement or entrust an auditing institution to conduct an audit. The attorney of the person being executed shall inform the person being executed of the obligation to truthfully report property to the people's court and explain the legal consequences of refusing to report, falsely reporting, or overdue reporting of property.
The people's court shall conduct enforcement investigations through the enforcement network control system and other necessary means. It is necessary to protect the right of lawyers to investigate and collect evidence in accordance with the law, further broaden the methods and channels of enforcement investigation, and study and establish a working mechanism for entrusting lawyers to investigate.
6. Give full play to the role of lawyers in property control and disposal. The people's court shall promptly seal up, detain, and freeze the property of the person being executed that should fulfill the obligation, and after completing the property control, it shall promptly notify the executing applicant or the attorney of the property control situation in writing. Before the expiration of the time limit for sealing up, detaining, and freezing, the attorney may assist the executing applicant in applying to the people's court for an extension of the time limit to prevent the consequences of property being transferred after the expiration of the time limit.
The people's court shall promptly dispose of the controlled property, and it is strictly forbidden to illegally evaluate and auction property and illegally offset debts with property. In the process of the people's court determining the reference price for property disposal, the attorney shall assist the parties in cooperating with the people's court to investigate the ownership, encumbrances, possession and use, unpaid taxes, quality defects, and other matters of the property to be disposed of in accordance with the law. The people's court shall protect the professional rights of the attorney in the process of property disposal in accordance with the law to ensure the openness, fairness, and impartiality of the property disposal process.
After the execution funds are received, the people's court shall notify the executing applicant or the specially authorized attorney to complete the collection procedures within the prescribed time limit, and it is strictly forbidden to conceal, intercept, embezzle execution funds and materials, and delay the issuance of execution funds.
7. Give full play to the role of lawyers in preventing and combating evasion of enforcement. The attorney of the person being executed shall explain to the party the consequences of not fulfilling legal obligations and guide and assist them in respecting effective legal documents and fulfilling obligations in accordance with the law. If the person being executed has illegal circumstances such as dishonesty, the executing applicant's attorney may assist the executing applicant in applying to the people's court to take measures such as restricting consumption and including them in the list of dishonest persons subject to enforcement in accordance with the law. If the person being executed has the ability to execute but refuses to execute the judgment or ruling, and the circumstances are serious and suspected of constituting a crime, the executing applicant's attorney may investigate and collect evidence in accordance with the law and assist the executing applicant in filing a complaint with the public security organ or filing a private prosecution with the people's court in accordance with the law.
The people's court shall increase the prevention and crackdown on evasion of enforcement, and include the person being executed who meets the statutory circumstances in the list of dishonest persons subject to enforcement in accordance with the law. For those who maliciously evade enforcement and transfer or conceal property, mandatory measures such as detention and fines shall be applied in a timely manner in accordance with the law; for those who are suspected of refusing to execute judgments or rulings, illegally disposing of sealed up, detained, or frozen property, and obstructing official duties, the case shall be transferred to the public security organ for investigation in accordance with the law. If the attorney guides and helps the executing applicant to file a criminal private prosecution, the enforcement department of the people's court shall support and cooperate, and the criminal trial department shall accept and adjudicate it in a timely manner.
8. Give full play to the role of lawyers in participating in distribution and enforcement transfer to bankruptcy procedures. If the person being executed is a citizen or other organization and their property is insufficient to pay off all debts, the attorney of other creditors who have obtained enforcement basis may assist the creditor in applying to the people's court to participate in the distribution. The people's court shall accept the application that meets the conditions in a timely manner. If the person being executed is a legal person of an enterprise and the assets are insufficient to pay off all debts or are obviously lacking the ability to pay off, the people's court shall promptly inquire whether the executing applicant and the person being executed agree to transfer the enforcement case to bankruptcy review. If the executing applicant or the person being executed agrees, the attorney shall actively assist the party in providing relevant materials to the enforcement department of the people's court. After entering the bankruptcy procedure, if the debtor has the conditions for reorganization, the attorney shall actively assist the party in applying to the people's court for reorganization. The law firm and lawyer designated by the people's court as the bankruptcy administrator shall earnestly perform their duties, formulate a feasible reorganization plan, and assist the people's court in doing a good job in reorganization.
The people's court shall standardize the review work of transferring enforcement cases to bankruptcy and ensure the orderly connection between the enforcement procedure and the bankruptcy procedure. Actively promote the design of simplified bankruptcy procedures and quickly hear cases of 'no property to break'.
9. Give full play to the role of lawyers in terminating the current enforcement procedure. If the people's court intends to terminate the current enforcement procedure for the case, it shall inform the executing applicant or the attorney of the enforcement situation of the case, the property investigation measures taken, the property situation of the person being executed, the basis for terminating the current enforcement procedure, and the legal consequences. The attorney shall reflect the party's opinions on terminating the current enforcement procedure to the people's court within the scope of the entrusted authority, and at the same time, comprehensively and objectively explain to the party the legal basis and consequences of the people's court terminating the current enforcement procedure.
The people's court shall record the opinions of the executing applicant and the attorney in the file, and it is strictly forbidden to illegally apply the termination of the current enforcement procedure, and shall not force the executing applicant or the attorney to agree to terminate the current enforcement procedure in a disguised form. After the termination of the current enforcement procedure, the people's court shall conduct regular inquiries on the case. If it is found that the person being executed has property available for enforcement, and failure to take enforcement measures immediately may lead to the transfer, concealment, sale, or damage of the property, the people's court may take control measures such as sealing up, detaining, and freezing immediately upon application or ex officio.
10. Give full play to the role of lawyers in enforcement relief. In the process of handling enforcement cases, the people's court shall strictly regulate enforcement in accordance with the law, and it is strictly forbidden to 'coldly and rigidly push' and passively enforce, delay enforcement, and selectively enforce. If the people's court has not enforced the case for more than six months from the date of receiving the application for enforcement, the attorney may guide the party to apply to the people's court at the next higher level for enforcement. The people's court at the next higher level shall accept and review it in a timely manner, and may order the original people's court to enforce it within a certain period of time, or may decide to enforce it by the court or instruct other people's courts to enforce it. If the party or interested party believes that the enforcement act of the people's court violates the provisions of the law, the attorney may guide the party to raise an objection to enforcement or apply for reconsideration in accordance with the law, or apply to the people's procuratorate for procuratorial supervision in accordance with the law.
The people's court shall further promote the system of lawyers' participation in resolving and representing appeals, strictly implement the 'Opinions (for Trial Implementation) on Establishing a System for Lawyers to Participate in Resolving and Representing Legal and Petition-Related Cases' of the Central Political and Legal Affairs Commission and the relevant provisions of the 'Opinions on Gradually Implementing the System of Lawyers Representing Appeals' of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Justice, further promote the system of lawyers representing enforcement appeals, protect the parties' right to appeal in accordance with the law, and actively resolve enforcement petition cases.
11. Give full play to the role of lawyers in the publicity of the rule of law in enforcement. The people's court, the judicial administration organ, and the lawyers association shall give full play to their respective functions and actively carry out publicity and education on the rule of law in enforcement to the society. It is necessary to widely publicize the consequences of refusing to perform effective legal documents, enhance the parties' initiative and consciousness in performing effective legal documents, promote the formation of a good atmosphere of 'it is glorious to abide by the law and keep promises, and it is shameful to violate the law and break promises', and improve the legal awareness and integrity awareness of the whole society. It is necessary to explain the difference between 'difficulty in enforcement' and 'inability to enforce', help the parties fully understand the litigation risks and the risk of the person being executed losing the ability to perform, guide the people to establish legal awareness and risk prevention awareness, and promote the solution of the difficulty in enforcement from the source.
3. Earnestly strengthen the guarantee for lawyers to participate in enforcement work
12. Guarantee the parties' right to entrust lawyers to act as agents in the execution of cases in accordance with the law. The people's court shall inform the parties in the notice of acceptance of the execution case that they have the right to entrust a lawyer to act as an agent in the execution of the case, and list the functions and roles of the lawyer. For those who meet the conditions for legal aid but have not entrusted a lawyer, the people's court shall promptly inform the parties that they have the right to apply for legal aid. Applying to the people's court for enforcement in cases involving people's livelihood such as recovery of alimony, maintenance, child support, and pensions, and meeting the conditions for legal aid, the people's court may transfer the application materials to the legal aid agency in accordance with relevant regulations, and the legal aid agency shall increase the efforts of legal aid.
13. Build a positive interaction between enforcement officers and lawyers. People's courts should fully implement the requirements of judicial openness, smooth normal exchanges and channels for expressing opinions and suggestions, and create a clean, fair, just, open and transparent judicial environment for lawyers to play their role. It is necessary to strictly regulate the behavior of enforcement officers and eliminate problems such as improper interactions and even illegal transactions between enforcement officers and lawyers. In the process of handling enforcement cases, enforcement officers are strictly prohibited from meeting with parties, agents, or petitioners in violation of regulations, or eating, living, or traveling with them; it is strictly forbidden to "eat, take, card, or ask" or ask parties or lawyers to bear expenses that should not be borne by them; it is strictly forbidden to act as litigation brokers, inquire about cases in violation of regulations, or disclose work secrets. Actively build a new type of positive and healthy interactive relationship between enforcement officers and lawyers that respects each other, treats each other equally, supports each other, supervises each other, and engages in legitimate exchanges.
14. Build a convenient and efficient litigation service system. People's courts should use technical means such as APP, instant messaging, and WeChat mini-programs to create "micro-courts" and "smart courts" to provide intelligent litigation services for parties and agent lawyers. It is necessary to deepen the construction and application of enforcement informatization, create an intensive enforcement public platform, and do a good job in connecting the platform with the court's enforcement case management and other systems to provide parties and lawyers with "one-stop" enforcement information disclosure services. It is necessary to enhance the communication and interaction of the enforcement public website, provide parties and lawyers with more convenient channels to contact judges, and mobilize the enthusiasm of lawyers to participate in enforcement, support enforcement, and supervise enforcement.
15. Strengthen the supervision and management of lawyers' practice. In participating in enforcement work, lawyers should adhere to the professional ethics of "loyalty, serving the people, the rule of law, justice, integrity, and dedication", and consciously practice the basic requirements of abiding by the Constitution and laws, being loyal to the truth, strictly abiding by professional discipline, and adhering to prudence in words and deeds. Judicial administrative organs and lawyers associations should strengthen the supervision and management of lawyers' practice in enforcement work, and deal with violations of practice norms and professional ethics in accordance with laws and regulations.
16. Establish and improve the communication and coordination mechanism. People's courts, judicial administrative organs, and lawyers associations should strengthen communication and exchanges, establish and improve a regular coordination and cooperation work mechanism, listen to lawyers' opinions and suggestions on the enforcement work of people's courts regularly or irregularly, study and solve the problems encountered by lawyers in participating in enforcement work, and promptly coordinate and handle matters related to infringement of lawyers' practice rights and lawyers' violations of laws and regulations, and constantly promote the formation of a work pattern of departmental linkage, joint management, division of labor and cooperation, and provide more powerful guarantees for in-depth promotion of lawyers' participation in enforcement work.
Fa Fa [2019] No. 35
Opinions of the Supreme People's Court on Further Strengthening the Concept of Good Faith and Civilized Enforcement in Enforcement Work
In order to implement the spirit of the "Opinions of the CPC Central Committee and the State Council on Improving the Property Rights Protection System and Protecting Property Rights in Accordance with the Law" and the "Opinions of the CPC Central Committee and the State Council on Creating a Better Development Environment to Support the Reform and Development of Private Enterprises", further improve the level of strict, standardized, fair and civilized enforcement of the people's courts, promote the continuous, healthy and high-level operation of enforcement work, and provide better judicial services and guarantees for economic and social development, the following opinions are put forward in accordance with the Civil Procedure Law and relevant judicial interpretations, combined with the actual enforcement work of the people's courts.
I. Fully understand the important significance and spiritual essence of good faith and civilized enforcement
1. Fully understand the important significance of good faith and civilized enforcement. Enforcement is the last link in the last line of defense of fairness and justice. Strengthening the concept of good faith and civilized enforcement, while protecting the legitimate rights and interests of the winning party in accordance with the law, minimizes the impact on the rights and interests of the person being enforced, and achieves the organic unity of legal effects and social effects. It is an inevitable requirement for maintaining social fairness and justice, promoting social harmony and stability, improving the property rights protection system, establishing and improving a market-oriented, rule-of-law, and international business environment, and promoting high-quality development. It is of great significance for comprehensively promoting the rule of law and promoting the modernization of the national governance system and governance capabilities.
2. Accurately grasp the spiritual essence of good faith and civilized enforcement. Enforcement work is an important means to rely on state coercion to realize winning judgments. At present, the evasion of enforcement and evasion of enforcement by the person being enforced are still the main contradictions and prominent problems in enforcement work. Highlighting the mandatory nature of enforcement work, continuing to increase enforcement efforts, and timely protecting the winning party to realize legitimate rights and interests are still the focus and main line of enforcement work. But at the same time, it should be noted that enforcement work has a significant impact on all parties involved. People's courts should also strengthen the concept of good faith and civilized enforcement in the enforcement process, and strictly standardize and fairly protect the legitimate rights and interests of all parties involved; adhere to the principle of proportionality, find the balance point between the interests of both parties, and avoid excessive enforcement; improve the political position, focus on the overall situation of the party and the country's development strategy, enhance the ability to grasp judicial policies, and achieve the unity of performing duties in accordance with the law and serving the overall situation and promoting development. Effective measures should be taken to resolutely correct the phenomena of over-standard seizure and random seizure that have appeared in practice, unblock channels for the people to report problems, implement "one case and two investigations" for relevant clues, and seriously deal with non-standard behaviors in accordance with the law.
In the process of strengthening the concept of good faith and civilized enforcement, the people's court shall fully protect the legitimate rights and interests of creditors, maintain the authority of enforcement and judicial credibility, and focus the coercive force on the lawful crackdown and punishment of acts of evading enforcement, evading enforcement, and resisting enforcement. It is necessary to resolutely prevent enforcement officers from passively enforcing or delaying enforcement under the pretext of "good faith and civilized enforcement", or from unconditionally promoting reconciliation between the parties under the pretext of reducing the impact on the person being enforced, thereby harming the legitimate rights and interests of creditors.
II. Strictly prohibit over-standard seizure and random seizure
3. Reasonably select enforcement property. If the person being enforced has multiple properties available for enforcement, the people's court shall choose to enforce the property that has a smaller impact on the person being enforced's production and life and is convenient for enforcement. Without affecting the efficiency and effect of enforcement, if the person being enforced requests the people's court to enforce a certain property first, it shall be permitted; if it is not permitted, there shall be reasonable and legitimate reasons.
In the process of enforcement, the people's court shall reserve the necessary living expenses for the person being enforced and his or her dependent family members. It is necessary to strictly follow the spirit of the central government's relevant property rights protection, strictly distinguish between the property of corporate legal persons and the personal property of shareholders, strictly prohibit the illegal seizure of the property of parties outside the case, strictly prohibit the adoption of enforcement measures against property that may not be seized, and effectively protect the legitimate rights and interests of corporate legal persons, entrepreneurs, and various market entities such as private enterprises. It should be noted that trust property is independent of the inherent property of the settlor and trustee during the existence of the trust, and the rights enjoyed by the beneficiary over the trust property are manifested as trust beneficiary rights, and the trust property is not the liability property of the beneficiary. Therefore, when a party applies for preservation or enforcement measures against the trust funds in the special account of the custodian bank or trust company due to a dispute between him and the settlor, trustee or beneficiary, the people's court shall not permit it unless it meets the circumstances stipulated in Article 17 of the Trust Law of the People's Republic of China.
4. It is strictly forbidden to seize properties exceeding the standard. The enforcement of the property of the person subject to execution shall be limited to the amount of the creditor's rights determined by the effective legal document, and the seizure of properties that obviously exceed the standard shall be resolutely eliminated. When freezing the deposit in the bank account of the person subject to execution, the specific amount of the freeze shall be clearly defined, and the flow of funds outside the freeze and the use of the account shall not be affected. If the overall value of the real estate to be seized clearly exceeds the amount of the creditor's right, the seizure measures shall be taken for the corresponding value part of the real estate; if the relevant departments propose that the division and seizure cannot be handled on the grounds that the real estate is registered under the same right certificate, the people's court shall, after the overall seizure of the real estate, promptly coordinate with the relevant departments to handle the division registration and lift the seizure of the excessive part upon application by the person subject to execution. If the relevant departments refuse to assist in handling the division registration and seizure without justified reasons, corresponding punishment measures shall be taken in accordance with Article 114 of the Civil Procedure Law.
5. Take flexible seizure measures. For property that can be 'seized alive', try not to 'seal to death', so that the seized property can be used to its full potential and avoid waste of social resources. If the production materials such as factory buildings and machinery and equipment of the enterprise subject to execution are seized, and the continued use of the person subject to execution has no significant impact on the value of the property, it may be allowed to use it. For real estate development enterprises that have difficulty in capital turnover and are temporarily unable to repay debts, the people's court shall handle them separately according to the following circumstances:
(1) After sealing up the construction in progress, the person subject to execution shall, in principle, be allowed to continue construction.
(2) After sealing up the construction in progress, if taking compulsory price change measures will realize the creditor's rights of execution, but will obviously depreciate the value of the property and be obviously unfair to the person subject to execution, the parties concerned should be actively urged to reach a settlement agreement on suspending execution, and the price change will be made after the project is completed; if a settlement agreement cannot be reached, but the person subject to execution provides corresponding guarantee and promises to complete the construction within a reasonable period, compulsory price change measures may be suspended.
(3) After sealing up the commercial housing or existing housing under construction, the person subject to execution may be supervised to sell the houses by itself at a reasonable price within a certain period of time on the premise of ensuring that the corresponding price can be controlled. When determining the time limit, the people's court shall clearly define the specific time node to avoid the time limit being too long to affect the execution efficiency and damage the legitimate rights and interests of the execution creditor.
6. Give full play to the financing function of sealed property. After the people's court seals up the property, if the person subject to preservation or the person subject to execution applies for financing with the sealed property, it shall be handled separately according to the following circumstances:
(1) After the property is sealed up for preservation, if the person subject to preservation applies to replace the sealed property with financing with the sealed property, the person subject to preservation may be supervised to carry out financing at a reasonable price on the premise of ensuring that the corresponding financing amount can be controlled.
(2) During the execution process, the application of the person subject to execution to use the sealed property to finance the repayment of debts may be permitted if the execution creditor agrees or the financing amount is sufficient to repay all execution debts.
If the person subject to preservation or the person subject to execution uses the sealed property for financing, and the lender requires to go through the property mortgage or pledge registration before lending, the people's court shall actively coordinate with the relevant departments to do a good job in unsealing the property, mortgage or pledge registration, etc., and strictly control the financing amount.
7. Strictly regulate the freezing of listed companies' stocks. In order to maintain the stability of the capital market and protect the legitimate rights and interests of creditors and the investment rights and interests of debtors in accordance with the law, the people's court shall strictly enforce the following provisions when freezing the stocks of debtors in listed companies:
(1) It is strictly forbidden to freeze properties exceeding the standard. Freezing the stocks of listed companies shall be limited to the amount of the creditor's rights determined by the effective legal document. The stock value shall be based on the closing price of the trading day before the freeze, combined with the stock market situation, and shall generally be reasonably determined within a range not exceeding 20%. If the value of the stock changes significantly after the stock is frozen, the people's court may add a freeze or lift part of the freeze upon application by the parties concerned.
(2) Saleable freeze. After the stocks of listed companies are frozen for preservation, the application of the person subject to preservation to change the freeze measures to saleable freeze shall be permitted, but the funds account of the person subject to preservation in the securities company shall be frozen in advance within a clear and specific amount range. During the execution process, if the person subject to execution applies to sell the stocks by itself through the secondary market to repay the debts, the people's court may handle it in accordance with the aforementioned provisions, but shall require it to be sold out within 10 trading days. Under special circumstances, it may be appropriately extended.
(3) Freezing of pledged stocks. If the stocks of listed companies are pledged and the pledgee is not the applicant for preservation or the applicant for execution in this case, at present, when the people's court takes freezing measures, it is necessary to include the pledge creditor's rights existing on the stocks, and the amount of the creditor's rights is often difficult to accurately calculate, especially when there are multiple pledges on the stocks, it is also necessary to specify which pledge stocks to freeze. In order to protect the legitimate rights and interests of ordinary creditors, the people's court will generally freeze all the pledged stocks, which not only has the risk of freezing properties exceeding the standard, but also affects the pledgee's own realization of creditor's rights, which is not in line with the principle of execution economy.
After communication and coordination with the China Securities Regulatory Commission, the Supreme People's Court requested the China Securities Depository and Clearing Corporation Limited (hereinafter referred to as China Clearing Corporation) to transform the existing freezing system, established a new type of freezing method for pledged stocks, and officially implemented it after the system transformation was completed. The specific contents are as follows:
First, if the listed company stocks held by the debtor are pledged and the pledgee is not the applicant for preservation or the applicant for execution in this case, when the people's court freezes the pledged stocks, it shall freeze the corresponding number of stocks in accordance with the calculation method stipulated in 7 (1), without calculating the amount of the pledge creditor's rights. When freezing pledged stocks, the people's court shall freeze the debtor's funds account in the securities company in advance, and clearly define the specific amount of the freeze, and shall not freeze the funds account as a whole.
Second, after the stock is frozen, it does not affect the pledgee's realization of its creditor's rights by changing the price of the stock. If the pledgee releases any part of the stock pledge, the freezing effect shall automatically take effect on the released part of the stock within the frozen stock quantity range. If there is a surplus in the price change payment after the pledgee changes the price of the stock to realize its creditor's rights, the freezing effect shall automatically take effect on the remaining price change payment within the scope of the creditor's rights in this case.
Third, in the execution procedure, in order to realize the creditor's rights in this case, the people's court may take compulsory price change measures on the corresponding number of stocks within the scope of the pledge creditor's rights and the amount of the creditor's rights in this case, and pay off the debts in this case after giving priority to the realization of the pledge creditor's rights.
Fourth, if two or more state organs freeze the same pledged stock, the freezing order shall be determined according to the order in which the stock freezing procedures are handled in the securities company or China Clearing Corporation, and the freezing needs of each state organ shall be met in turn. If two or more state organs freeze the same pledged stock in the securities company and China Clearing Corporation on the same trading day, the one that handles the stock freezing procedures in the securities company first shall be the first to freeze.
Fifth, if the people's court has a dispute with other state organs over the freezing of pledged stocks, the Supreme People's Court shall take the initiative to coordinate and resolve the dispute with the Supreme People's Procuratorate, the Ministry of Public Security and other departments in accordance with the law. During the period of dispute coordination and resolution, the securities company or China Clearing Corporation shall control the relevant stocks in dispute and shall not assist any party in execution. After the dispute coordination and resolution is completed, the securities company or China Clearing Corporation shall handle it in accordance with the final conclusion negotiated by the dispute organs.
Sixth, the aforementioned provisions shall not apply to the freezing that has been completed before the system transformation is completed. The aforementioned provisions shall not apply to the freezing measures if the applicant for case preservation or the applicant for execution is the pledgee.
3. Take property price change measures appropriately in accordance with the law
8. Reasonably determine the reference price for property disposal. During the execution process, the people's court shall reasonably determine the reference price for property disposal in accordance with the "Provisions of the Supreme People's Court on Several Issues Concerning the Determination of Reference Prices for Property Disposal by People's Courts." Without prejudice to the legitimate rights and interests of third parties, efforts should be made to promote consensus between the parties on the reference price, so as to further improve the efficiency of determining the reference price and avoid subsequent disputes. If the property has a tax base price, government-set price, or government-guided price, and the parties cannot negotiate a price or unanimously request a targeted inquiry, the people's court shall actively coordinate with relevant institutions to handle the inquiry. If the targeted inquiry result deviates significantly from the market price, it can be appropriately corrected. Practice has proved that online inquiry is not only efficient, but also the vast majority of inquiry results can basically reflect the real market price. For properties that do not require on-site inspection or appraisal by professionals, the people's court should actively guide the parties to determine the reference price through online inquiry and review the inquiry report.
If the reference price is determined through entrusted evaluation, and the person subject to execution believes that the assessed price seriously deviates from the market price and raises an objection, in order to improve work efficiency, the people's court may first use the assessed price as a benchmark to promote consensus between the parties on the reference price. If a consensus cannot be reached quickly, it shall be submitted to the appraisal institution for a written explanation in accordance with the law. If the appraisal institution fails to provide an explanation within the time limit or the person subject to execution still has objections, it shall be submitted to relevant industry associations for professional technical review in a timely manner. In the process of determining the reference price for property disposal, the people's court shall perform its supervisory duties in accordance with the law, and shall promptly investigate and correct any malicious collusion between the parties, bidders, and relevant institutions or personnel to suppress the reference price.
9. Appropriately increase the applicable circumstances of property sale. On the basis of adhering to the principle of priority of online judicial auction, comprehensive consideration should be given to the actual situation of the property to be disposed of, whether it damages the interests of the execution creditor, third parties, or the public interest, and other factors, and measures such as direct sale or compulsory sale should be taken as appropriate.
(1) If the person subject to execution applies to sell the sealed property by himself to pay off debts, he may be supervised to sell it at a reasonable price within a certain period of time, provided that the corresponding price can be controlled. The sale period shall be determined by the people's court based on the actual situation of the property, market conditions and other factors, but shall not exceed 60 days.
(2) If the person subject to execution applies to directly sell the sealed property without auction, the people's court may directly sell it without auction if the execution creditor agrees or the proceeds from the sale are sufficient to pay off all execution debts.
(3) If the person subject to execution believes that the online inquiry or assessed price is too low and applies to sell the sealed property by himself at a price not lower than the online inquiry or assessed price to pay off debts, the people's court may supervise him to sell it within a certain period of time after reviewing and believing that there is no malicious collusion between the person subject to execution and others to dispose of the property at a low price.
(4) If the property is auctioned and fails to sell and the execution creditor does not accept the debt offset, and a third party applies to purchase it at the failed auction price, it may be allowed.
(5) After the second failed online judicial auction, if the person subject to execution proposes to finance at the failed auction price, the people's court shall give consideration to it based on factors such as the basic situation of the auctioned property, the degree of difference between the failed auction price and the market price, and the financing period. If financing is allowed, the procedure of offsetting debt with property or compulsory sale shall not be initiated for the time being.
If the person subject to execution applies for self-sale in accordance with the provisions of 9(3) and is approved by the people's court, and then raises an objection to the people's court in accordance with the provisions of Articles 22 and 23 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Determination of Reference Prices for Property Disposal", it shall not be accepted; if the person subject to execution raises an objection to the online inquiry or assessed price and then applies for self-sale in accordance with the provisions of 9(3), it shall not be approved.
10. Fully attract more entities to participate in bidding. During the auction process, the people's court shall fully and truthfully disclose the status quo of the auctioned property, occupancy and use, attached obligations, known defects and encumbrances, bidding qualifications and other matters, and shall strictly prohibit deliberately concealing the defects of the auction items to induce bidders to bid, and shall strictly prohibit deliberately exaggerating the defects of the auction items to mislead bidders to bid. If the auctioned property is real estate and the person subject to execution or others have no right to occupy it, the people's court shall be responsible for clearing it out in accordance with the law, and shall not include information such as "not responsible for clearing out and delivery" in the publicity information. It is necessary to give full play to the professional advantages of the online auction platform and auction auxiliary institutions, and do a good job in related work such as video promotion of auction items, targeted promotion of auction information to professional market entities, and on-site viewing of samples, so as to attract more market entities to participate in bidding.
11. Maximize the real value of property. If there are a large number of execution properties of the same type, and the person subject to execution believes that disposing of them in batches or as a whole can maximize their value, the people's court may allow it. In particular, for real estate such as large-scale entire buildings, entire floors, connected shops or villas, which have been divided and registered or can be divided and registered afterwards, if the person subject to execution believes that disposing of them in batches can realize the maximum value of the real estate, it should generally be allowed. When multiple properties are disposed of separately, if the proceeds from the disposal of some of the properties are sufficient to pay off the debts, the disposal of the remaining properties shall be stopped, unless the person subject to execution agrees to dispose of all of them.
12. Accurately grasp the disposal method of real estate usufruct pledge rights. If the effective legal document determines that the applicant for execution enjoys a pledge right over the usufruct of real estate such as highways, bridges, and tunnels of the person subject to execution, and the applicant for execution realizes its pledge claim by independently deducting funds from the usufruct fee collection account, and other creditors raise objections to the people's court on the grounds that the applicant for execution only enjoys a pledge right over the fee collection right and does not enjoy a pledge right over the funds in the fee collection account, it shall not be supported. In the execution process, the people's court may deduct funds from the usufruct fee collection account to realize the applicant for execution's pledge claim. If the funds in the fee collection account are sufficient to pay off the debts, the usufruct of the person subject to execution should not be forcibly disposed of.
IV. Make full use of execution settlement and bankruptcy reorganization systems
13. Make good use of execution settlement and bankruptcy reorganization and other related systems in accordance with the law. While taking execution measures in accordance with the law, it is necessary to properly grasp the timing of execution, pay attention to execution strategies, and pay attention to execution methods. For enterprises with temporary breaks in the capital chain, but still have development potential and the possibility of rescue, the assets of the enterprise can be revitalized through methods such as settlement and installment performance, mergers and acquisitions, and the introduction of third-party funds. It is necessary to increase the publicity of the concept of bankruptcy protection, and guide execution creditors or persons subject to execution to agree to transfer the case to bankruptcy proceedings in accordance with the law by strengthening clarification and other methods. For enterprises with operational value, resolve debt crises through bankruptcy reorganization and bankruptcy settlement, give full play to the rescue function of the bankruptcy system, help enterprises get out of difficulties, balance the interests of creditors, debtors, investors, employees and other stakeholders, and realize resource allocation optimization and maximization of overall social value through the market.
V. Strictly regulate the inclusion of measures to include in the list of dishonest persons and restrict consumption
14. Strictly apply conditions and procedures. The adoption of measures to include in the list of dishonest persons or restrict consumption must be carried out in strict accordance with the conditions and procedures stipulated in the Civil Procedure Law, the "Provisions of the Supreme People's Court on the Publication of Information on the List of Dishonest Persons Subject to Execution" (hereinafter referred to as the Provisions on the List of Dishonest Persons), and the "Provisions of the Supreme People's Court on Restricting the High Consumption and Related Consumption of Persons Subject to Execution". For persons subject to execution who do not meet the statutory conditions, resolutely do not take disciplinary measures to include in the list of dishonest persons or restrict consumption. For persons subject to execution who meet the statutory conditions, the decision to take disciplinary measures shall be made in a decision or order restricting consumption, and shall be reviewed and signed by the president of the court in accordance with the law.
It should be specifically pointed out that, according to the judicial interpretation, although the decision to include a person in the list of dishonest persons takes effect after being signed by the president of the court, it should be served on the party in accordance with the service methods stipulated in the Civil Procedure Law, and resolutely put an end to the phenomenon of only signing and not serving, which does not comply with the statutory procedures.
15. Appropriately set a grace period. Local courts may, depending on the specific circumstances of the case, grant a grace period of one to three months to the person subject to enforcement who is decided to be included in the list of dishonest persons or subject to restrictive consumption measures. During the grace period, their information on dishonesty or restriction on consumption will not be released for the time being; if the person subject to enforcement still fails to perform the obligations defined in the effective legal document upon the expiration of the period, their information will be released and corresponding disciplinary measures will be taken.
16. Several situations in which disciplinary measures are not taken. Although the person subject to enforcement has the ability to perform but refuses to perform the obligations defined in the effective legal document, or refuses to perform the settlement agreement without justifiable reasons, disciplinary measures shall not be taken against the person subject to enforcement by including them in the list of dishonest persons or restricting consumption if the people's court has controlled their property sufficient to pay off the debt or the applicant applies for temporary non-adoption of disciplinary measures. If the unit is a dishonest person subject to enforcement, the people's court shall not include its legal representative, principal person in charge, person directly responsible for affecting debt performance, or actual controller in the list of dishonest persons. Full-time students who become persons subject to enforcement due to 'campus loan' disputes shall generally not be subject to inclusion in the list of dishonest persons or restriction on consumption measures.
17. Several situations for lifting restrictive consumption measures. After the people's court takes restrictive consumption measures against the person subject to enforcement, if the person subject to enforcement and relevant personnel apply for lifting or temporarily lifting the measures, they shall be handled separately according to the following situations:
(1) After the unit subject to enforcement is restricted from consumption, if its legal representative, principal person in charge, person directly responsible for affecting debt performance, or actual controller proposes to engage in consumption activities with personal property for private consumption purposes, it shall be approved if the review confirms that it is true.
(2) After the unit subject to enforcement is restricted from consumption, if its legal representative or principal person in charge needs to be changed due to business management needs, the original legal representative or principal person in charge shall provide evidence to prove that they are not the actual controller of the unit or the person directly responsible for affecting debt performance when applying for lifting the restriction on consumption measures against themselves. If the people's court confirms that it is true after review, it shall be approved, and restrictive consumption measures shall be taken against the changed legal representative or principal person in charge in accordance with the law.
(3) If an individual subject to consumption restriction urgently needs to go to another place due to a serious illness of themselves or a close relative, funeral of a close relative, or their own execution or cooperation in the execution of official duties, participation in foreign affairs activities or important examinations, etc., and applies to the people's court for temporary lifting of the restrictions on taking airplanes and high-speed trains, they may be granted a temporary lifting period of no more than one month after strict review and approval by the president of the court.
When the above-mentioned personnel submit an application to the people's court, they shall submit sufficient and effective evidence and make a written commitment as required; if they provide false evidence or engage in consumption activities in violation of the commitment, the people's court shall promptly restore the restrictive consumption measures taken against them, and shall also deal with them severely in accordance with Article 111 of the Civil Procedure Law, and shall not approve their application again.
18. Unblock the channels for remedy of disciplinary measures. If a natural person, legal person or other organization applies for correction of being included in the list of dishonest persons, the people's court shall promptly review and make a decision in accordance with the procedures and time limits stipulated in Article 12 of the Provisions on the List of Dishonest Persons. For applications for correction of being subject to restrictive consumption measures, refer to Article 12 of the Provisions on the List of Dishonest Persons.
If the people's court finds that there may be errors in including a person in the list of dishonest persons or taking restrictive consumption measures, it shall promptly conduct self-examination and make corresponding handling; if the higher-level court finds that there are errors in the inclusion of a person in the list of dishonest persons or the taking of restrictive consumption measures by the lower-level court, it shall order it to correct it in a timely manner, or it may directly correct it in accordance with the law.
19. Delete dishonest information in a timely manner. If the dishonest list information should be deleted (shielded) in accordance with the law, deletion (shielding) measures shall be taken in a timely manner. If deletion (shielding) measures are taken after more than three working days, or if serious consequences are caused by failing to take measures immediately although it has not exceeded three working days, the relevant personnel shall be held accountable in accordance with the law.
If a person subject to enforcement is included in both a fixed-term dishonest list and an indefinite-term dishonest list at the same time due to multiple dishonest circumstances, the fixed-term list information and the indefinite-term list information shall generally be deleted (shielded) at the same time after they have voluntarily performed the obligations defined in the effective legal document.
20. Accurately understand the restriction on children of persons subject to enforcement from attending high-fee schools. Restricting children of persons subject to enforcement from attending high-fee schools refers to restricting their children from attending schools that exceed the normal fee standards. Although they are private schools, if their fees do not exceed the normal standards, they are not within the scope of restriction. When taking this measure, the people's court shall strictly review it in accordance with the law and shall not affect the right of the children of the person subject to enforcement to receive normal education; when there are misreports or misinterpretations in the news media regarding the measures taken by the people's court, it shall respond and clarify them in a timely manner. After the people's court has reviewed and decided to restrict the children of the person subject to enforcement from attending high-fee schools, it shall do a good job in communicating with the children of the person subject to enforcement and the school, and try to avoid bringing adverse effects to the children of the person subject to enforcement.
21. Explore the establishment of a graded and classified disciplinary mechanism and a credit-keeping incentive mechanism. Local courts may, in combination with their actual work, actively explore the adoption of graded and classified dishonest disciplinary and restrictive consumption measures against persons subject to enforcement based on the specific circumstances of the case, so that dishonest disciplinary and restrictive consumption measures are more precise and more in line with the principle of proportionality.
While carrying out dishonest disciplinary actions in accordance with the law, local courts may, in combination with their actual work, explore the implementation of credit-keeping incentive measures such as issuing certificates of automatic performance of effective legal documents, pushing automatic performance information to credit reporting agencies, and appropriately reducing the amount of litigation preservation guarantee for honest debtors in accordance with the law, so as to create a good atmosphere that encourages automatic performance and supports honesty and trustworthiness.
VI. Increase the efforts in issuing case funds
22. Fully implement the 'one case, one account' system. After the case funds are received and there is no dispute, the people's court shall promptly return them to the enforcement creditor within one month in accordance with the regulations; if there is a dispute over part of the case funds, the undisputed part shall be promptly issued first. At present, the Supreme People's Court is fully promoting the 'one case, one account' system. Local courts shall strictly implement the system deployment and use work in accordance with the prescribed time nodes and standard requirements to ensure that the receipt and payment of case funds are open, transparent, timely, efficient, and fully traceable, effectively block loopholes in case fund management, eliminate potential risks of corruption, and maximize the protection of the legitimate rights and interests of all parties involved.
The Supreme People's Court
December 16, 2019
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