Enforcement of the Settlement Agreement and resumption of enforcement of the objection

Questions are raised

According to the first paragraph of article 230 of the Civil Procedure Law of the People's Republic of China[1], the first paragraph of article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlements[2], and article 466 of the Interpretation of the Supreme People's Court on Application<中华人民共和国民事诉讼法>[3], this means that in the course of enforcement of civil cases, the applicant for enforcement and the person subject to enforcement may reach an Enforcement Settlement Agreement, thereby changing the subject of rights and obligations determined in the effective legal documents. The subject matter, time limit, place and manner of performance, etc., and at the same time lead to the suspension of civil enforcement procedures.

According to Article 467 of the Interpretation of the Supreme People's Court on the Application<中华人民共和国民事诉讼法>[4], under normal circumstances, if the person subject to enforcement has performed his or her obligations in accordance with the provisions of the Enforcement Settlement Agreement, the applicant for enforcement has no right to apply for resumption of enforcement, but if the person subject to enforcement violates the provisions of the Enforcement Settlement Agreement, the applicant for enforcement may apply to the people's court for resumption of enforcement, and the part of the Enforcement Settlement Agreement that has been performed will be deducted accordingly.

In judicial practice, the issue of the performance of the Enforcement Settlement Agreement is not the case that the executor has completed or not performed according to the agreement, but there will also be special circumstances, such as "when the applicant for enforcement applies for resumption of enforcement in violation of the provisions of the Enforcement Settlement Agreement, whether enforcement should be resumed", "Whether the Enforcement Settlement Agreement is signed before the enforcement procedure begins, and the Enforcement Settlement Agreement has been performed, can the applicant for enforcement apply for enforcement", "The applicant for enforcement and the person subject to enforcement of the "Enforcement Settlement Agreement" If the content of the dispute arises and objectively it is impossible to continue to perform, can the applicant for enforcement apply for resumption of enforcement", etc., how to deal with it in this case? This article will refer to the Guiding Cases, Replies, and Relevant Laws and Regulations issued by the Supreme People's Court to explain the handling plan for the Enforcement of Settlement Agreements and the Resumption of Enforcement Under Special Circumstances.

Second, when the applicant for enforcement applies for the resumption of enforcement in violation of the provisions of the Enforcement Settlement Agreement, whether enforcement should be resumed

In judicial practice, the Enforcement Settlement Agreement generally only stipulates that the person subject to enforcement should pay a certain amount of money to the applicant for enforcement at a certain time, but there is also an agreement in the Enforcement Settlement Agreement that the applicant for enforcement needs to perform the relevant obligations, and the agreement involves that the person subject to enforcement can smoothly perform the Settlement Agreement, that is, the applicant for enforcement has the obligation to perform first. If, according to Article 9 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlements[5], when one of the parties subject to enforcement does not perform the Enforcement Settlement Agreement, the applicant for enforcement may apply for resumption of enforcement, but the reason why one of the party subject to enforcement does not perform the Settlement Agreement is because the applicant for enforcement violates the obligation of first performance stipulated in the Enforcement Settlement Agreement, resulting in the non-performance of the Enforcement Settlement Agreement by one of the party subject to enforcement, In such a case, whether the applicant for enforcement is entitled to apply for the resumption of enforcement?

The answer is no.

The Reply of the Enforcement Office of the Supreme People's Court on <执行和解协议>the Request for Instructions on Whether the Executor Can Resume Enforcement of the Original Judgment after the Parties Have Reached an Agreement During Enforcement states that "in accordance with the second paragraph of Article 211 (1) of the Civil Procedure Law of the People's Republic of China and the Supreme People's Court's "Application<中华人民共和国民事诉讼法>" Article 266(2) of the Opinions on Several Issues stipulates that after the Enforcement Settlement Agreement is reached, the precondition for the people's court to resume enforcement of the original effective legal document is the application of the other party in the event that one party repents. Because the settlement agreement under enforcement is voluntarily reached by the parties under the auspices of the court, the settlement agreement is the disposition of their rights and obligations by the two parties, reflecting the principles of freedom of contract and autonomy of will in civil law. Once the settlement agreement is reached and fulfilled, the content of the original effective legal instrument is changed. Although the current laws and judicial interpretations stipulate that both parties have the right to repentance, it is not inevitable to restore the enforcement of the original effective legal document, but to have an application from the "other party", otherwise the enforcement cannot be resumed. In this case, because the "other party" is the person subject to enforcement, the enforcement of the original judgment cannot be resumed if it performs the Enforcement Settlement Agreement and does not apply for enforcement of the original effective legal documents. (Note (1) Article 211 of the Civil Procedure Law of the People's Republic of China has been amended to Article 230; (2) Article <中华人民共和国民事诉讼法>266 of the Opinions on Several Issues Concerning the Application has been replaced by Article 467 of the Interpretation of the Supreme People's Court on Application<中华人民共和国民事诉讼法>)

That is, if the applicant for enforcement needs to apply for the restoration of the enforcement of the original judgment, the person subject to enforcement needs to violate the provisions of the "Enforcement Settlement Agreement" or does not perform the provisions of the "Enforcement Settlement Agreement", and if the applicant for enforcement violates the provisions of the "Enforcement Settlement Agreement" or the person subject to enforcement is unable to perform the "Enforcement Settlement Agreement" due to the reasons of the applicant for enforcement, the people's court shall reject the application for the application for enforcement to resume enforcement.

3. If the Enforcement Settlement Agreement is signed before the enforcement procedure begins, and the Enforcement Settlement Agreement has been performed, whether the applicant for enforcement can apply for enforcement

Supreme People's Court Guiding Case No. 119: Anhui Chuzhou Construction and Installation Engineering Co., Ltd. and Hubei Chairi Electric Co., Ltd. implemented the reconsideration proposal

Brief facts of the case

During the second instance of the dispute over the construction contract between Chuzhou Construction and Installation Engineering Co., Ltd. (hereinafter referred to as Chuzhou Jian'an Company) and Hubei Chairi Electric Co., Ltd. (hereinafter referred to as "Chairi Electric Company"), the two companies reached an "Enforcement Settlement Agreement", and after the signing of the "Enforcement Settlement Agreement", Chao ri Electric Company applied to the Supreme People's Court to withdraw the appeal. Since then, the Company has fulfilled its obligation to pay the relevant amounts in accordance with the "Execution Settlement Agreement" and has fulfilled it. However, Chuzhou Jian'an Company applied to the Qinghai High Court for compulsory enforcement after the Company completed the performance of the Settlement Agreement. The two companies disputed whether the people's court should resume enforcement.

Court adjudication views

If the Supreme People's Court finds that the case involves an extra-enforcement settlement, but the Company raises an enforcement objection on the ground that the Enforcement Settlement Agreement reached by the parties themselves has been performed, the people's court may review the validity and performance of the settlement agreement with reference to article 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement, and then determine whether enforcement is terminated. Moreover, in the case where the company has completed the performance of the case involving the Settlement Agreement, the enforcement of the case should be terminated.

conclusion

The Enforcement Settlement Agreement signed outside the enforcement may refer to Article 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlements to review enforcement cases, and if the Enforcement Settlement Agreement has been performed, the people's court shall terminate enforcement.

Where there is a dispute between the applicant for enforcement and the person subject to enforcement over the content of the Enforcement Settlement Agreement, and objectively it is no longer possible to continue to perform, whether the applicant for enforcement may apply for enforcement of the original effective legal document

Supreme People's Court Guiding Case No. 124: China Defense Science and Technology Institute and United Resources Education Development (Yanjiao) Co., Ltd. Enforcement Supervision Case

In the course of the enforcement of the dispute over the cooperative school running contract between United Resources Education Development (Yanjiao) Co., Ltd. (hereinafter referred to as "United Resources Company") and China Defense Science and Technology Institute (hereinafter referred to as the China Defense Academy), the two companies reached the "Enforcement Settlement Agreement", but the content of the "Enforcement Settlement Agreement" was more complicated, and the two companies had a dispute over the performance of the "Enforcement Settlement Agreement", and the "Enforcement Settlement Agreement" was not completed for more than ten years. After that, United Resources applied to the people's court to resume enforcement. The two companies disputed whether the people's court should resume enforcement.

Some of the contents of the "Enforcement Settlement Agreement" involved in the case lacked finality, resulting in the inability to determine the payment content of the agreement and the liability for breach of contract, and objectively it was impossible to continue to perform, and the "Enforcement Settlement Agreement" was deadlocked in actual performance, and the two parties had their own opinions and could not reach an agreement on the asset acquisition, resulting in the case being unable to be executed for more than ten years. If the stalemate continues indefinitely on the grounds that there is an agreement on the settlement agreement, the case will continue to be unresolved for a long time, which will seriously damage the legitimate rights and interests of the creditors of the effective judgment document, and the people's court has no reason to wait indefinitely for the parties to implement the settlement agreement on their own without taking compulsory enforcement measures.

When some of the contents of the Enforcement Settlement Agreement lack finality and objectively lead to the consequences of the inability to continue to perform, the existence of the Enforcement Settlement Agreement should not lead to an indefinite stalemate between the two parties on the grounds that the existence of the Settlement Agreement exists, and the people's court shall resume enforcement.

After enforcement resumes in the 5th case, the person subject to enforcement performs in accordance with the "Enforcement Settlement Agreement", the applicant for enforcement accepts it, and if the "Enforcement Settlement Agreement" is completed, whether the people's court shall terminate enforcement

Supreme People's Court Guiding Case No. 126: Jiangsu Tianyu Construction Group Co., Ltd. and Wuxi Times Shengye Real Estate Development Co., Ltd. Enforcement Supervision Case

During the enforcement of the construction contract dispute between Jiangsu Tianyu Construction Group Co., Ltd. (hereinafter referred to as Tianyu Company) and Wuxi Times Shengye Real Estate Development Co., Ltd. (hereinafter referred to as Times Company), Tianyu Company and Times Company reached an "Enforcement Settlement Agreement", and later because Times Company failed to perform the "Enforcement Settlement Agreement", Tianyu Company applied to the people's court to resume enforcement. After the people's court resumed enforcement, Times Company continued to perform the Enforcement Settlement Agreement, and Tianyu Company accepted it, and the performance of the Enforcement Settlement Agreement was completed. Subsequently, during the enforcement of the case, Tianyu Company and Times Company disputed whether the people's court should terminate the enforcement.

The Supreme People's Court held that although Times Company did not perform its obligations in strict accordance with the Enforcement Settlement Agreement, Tianyu Company still accepted them one by one while knowing that Times Company's performance had exceeded the agreed period, and regarded it as Tianyu Company's approval of Times Company's overdue performance, and when Times Company had fulfilled a series of major obligations stipulated in the Enforcement Settlement Agreement, it was appropriate to find that the settlement agreement had been performed and not resume enforcement.

In the course of the performance of the "Enforcement Settlement Agreement", although the person subject to enforcement has overdue performance, but the applicant for enforcement accepts it, it is deemed that the applicant for enforcement approves the judgment debtor's overdue performance, and if the person subject to enforcement has completed the performance of the "Enforcement Settlement Agreement", the people's court shall not resume enforcement.

[1] Article 230 of the Civil Procedure Law of the People's Republic of China: Where during enforcement, the parties settle and reach an agreement on their own, the enforcement officer shall record the contents of the agreement in the record and have both parties sign or seal it. [2] Article 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement The parties may voluntarily reach a settlement agreement through consultation and change the subject of rights and obligations, the subject of performance, the time limit, the place and method of performance determined by the effective legal document in accordance with law. [3] Article 466 of the Interpretation of the Supreme People's Court on Application<中华人民共和国民事诉讼法>: Where the applicant for enforcement and the person subject to enforcement reach a settlement agreement and then request the suspension of enforcement or the withdrawal of the application for enforcement, the people's court may rule to suspend or terminate enforcement. [4] Article 467 of the Interpretation of the Supreme People's Court on Application<中华人民共和国民事诉讼法>: Where one party fails to perform or does not fully perform a settlement agreement voluntarily reached between the two parties during enforcement, and the other party applies for enforcement of the original effective legal document, the people's court shall resume enforcement, but the part of the settlement agreement that has already been performed shall be deducted. Where the settlement agreement has been performed, the people's court will not resume enforcement. [5] Article 9 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlements: Where one of the person subject to enforcement fails to perform the Enforcement Settlement Agreement, the applicant for enforcement may apply for the resumption of enforcement of the original effective legal document, or may file a lawsuit with the enforcement court for the performance of the Enforcement Settlement Agreement.