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Court Minutes
If the person subject to enforcement raises an objection to the enforcement of the case filing on the grounds that the enforcement basis has signed a liability exemption agreement with the applicant after the enforcement basis takes effect, it falls within the scope of acceptance of the enforcement objection case
Practical points
First, whether the applicant for enforcement may raise an enforcement objection if he is dissatisfied with the court's ruling not to accept the application for enforcement or reject the application for enforcement. If an enforcement objection cannot be raised, it shall directly apply to the people's court at the next higher level for reconsideration.
Conversely, after the people's court files an enforcement case, if the person subject to enforcement believes that the enforcement case should not be accepted or should reject the application for enforcement, can the person subject to enforcement raise an enforcement objection at this time. Objections to enforcement may be raised, and the filing of enforcement cases is the first step in the enforcement procedure, and objections raised by parties against the specific enforcement act of filing a case should be included in the scope of review of enforcement objections, and the ruling against enforcement objections should be reconsidered to the higher court. See the case Jiangsu High Court: During enforcement, if the person subject to enforcement raises an objection to the enforcement filing on the grounds that the enforcement basis has not taken effect due to illegal service, it falls within the scope of acceptance of the enforcement objection case
Second, in the enforcement procedure, if the person subject to enforcement raises an objection to the filing of the enforcement case on the grounds that it has signed an agreement with the applicant for enforcement to exempt it from its guarantee liability after the enforcement basis takes effect, it falls within the scope of acceptance of the enforcement objection case, and the enforcement objection is submitted by the person subject to enforcement on substantive grounds after the enforcement basis takes effect, such as the extinction of claims or the loss of enforcement effect, in accordance with the second paragraph of Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts. The people's court shall conduct the review with reference to article 225 of the Civil Procedure Law. The Jiangsu High Court commented: "In this case, the defendant Jiangsu Shenran Company claimed that after the arbitration mediation document came into effect, it had signed a security waiver agreement with the relevant party to expressly exempt it from all the guarantee debts involved in the case, and it did not have any obligation to the applicant for enforcement, and filed an enforcement objection with the Yangzhou Intermediate Court. The objection complies with the scope of review of enforcement objections as provided for in the judicial interpretation. In order to avoid inconsistencies between the enforcement ruling and the civil judgment and the inadmissibility of the civil judgment, the Yangzhou Intermediate Court ruled that its objection was an error in the application of law, and this court corrected it. ”
Third, we note that this case seems to be simple, but in fact the application of law is relatively complicated, and the enforcement of enforcement has been resumed three times and three enforcement settlements, and it also involves "non-enforcement" settlements, that is, the "Waiver of Security Agreement", defining the nature of the "Waiver of Security Agreement" is the key point (enforcement settlement or non-enforcement settlement), and the nature definition directly determines the direction of trial. From the perspective of the applicant for enforcement, the basis for applying for resumption of enforcement is enforcement settlement, and according to Article 9 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement, if the party subject to enforcement fails to perform the enforcement settlement agreement, the applicant for enforcement may apply for resumption of enforcement of the original effective legal documents, or may file a lawsuit with the enforcement court for the performance of the enforcement settlement agreement. Article 16: Where a person subject to enforcement initiates a lawsuit on the grounds that the enforcement settlement agreement is invalid or should be revoked, it does not affect the applicant applying for enforcement to resume enforcement. From the perspective of the debtor, the basis for claiming the extinction of claims and not agreeing to resume enforcement is the Waiver of the Security Agreement (presumptive of a settlement agreement outside enforcement), requesting the revocation (2020) Su 10 Enforcement Case No. 40 to resume enforcement (not agreeing to resume enforcement), and the relief channel, in addition to complying with the second paragraph of Article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts, it also complies with Article 12 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement, parties, Where interested parties believe that the resumption of enforcement or the refusal to resume enforcement violates the provisions of law, they may raise an objection in accordance with article 225 of the Civil Procedure Law. The problem is that if the debtor does not agree to resume enforcement on the grounds that it is exempt from liability by signing a non-enforcement settlement agreement, at this time, consideration should be given to the application of Article 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement, in the course of enforcement, if the debtor raises an objection in accordance with Article 225 of the Civil Procedure Law based on a settlement agreement reached by the parties themselves but not submitted to the people's court, or a settlement agreement submitted by one party to the people's court but not recognized by the other parties, the people's court shall follow the following circumstances: Separately handled: (1) if the performance of the settlement agreement is completed, the enforcement of the original effective legal document shall be terminated; (2) Where the performance period stipulated in the settlement agreement has not yet expired or the performance conditions have not been fulfilled, it is ruled that enforcement shall be suspended, except where the circumstances provided for in Article 578 of the Civil Code are met; (3) Where the party subject to enforcement is performing its obligations in accordance with the settlement agreement, rule to suspend enforcement; (4) Where the person subject to enforcement fails to perform the settlement agreement, the objection shall be dismissed; (5) Where the settlement agreement is not established, has not taken effect, or is invalid, the objection shall be dismissed.
Introduction to the case
1. In the case of Jiangsu Huwu Company and Xinyi Yangzhou Company, Jiangsu Shenran Company, Jilin Hongyuan Company, Shenzhen Qingpeng Company, Wang Jian and Zheng Guiquan Construction Project Contract Enforcement Case, Yangzhou Arbitration Commission made (2015) Yangzhong Diao Zi No. 367 Mediation Letter Xinyi Yangzhou Company paid Jiangsu Huwu Company 206.92 million yuan in arrears, interest and lawyer fees, and Jiangsu Huwu Company had the priority right to be compensated for the housing and civil air defense projects of the Chunjiang Huadu Phase III residential project; Yangzhou Qingpeng Company, Jilin Hongyuan Company, Shenzhen Qingpeng Company, Wang Jian and Zheng Guiquan shall be jointly and severally liable for the payment obligations of Xinyi Yangzhou Company.
On December 14, 2015, according to the application of the applicant for enforcement, the Yangzhou Intermediate People's Court established (2015) Yang Zhizi No. 00529 case for enforcement. During the enforcement process, because the two parties reached an enforcement settlement, Jiangsu Huwu Company applied to terminate the enforcement procedure of this case, so on December 15 of the same year, the court ruled to terminate the enforcement procedure according to law and lift the seizure of the defendant's bank deposits, real estate and equity with the (2015) Yang Zhong Baozi No. 00016 Civil Ruling. During the enforcement settlement, Jiangsu Huwu Company proposed that Xinyi Yangzhou Company would not perform after paying 114,790,000 yuan, so it applied to the court on January 16, 2019 to resume enforcement, and the court established (2019) Su 10 Enforcement Case No. 5. During the resumption of enforcement, Jiangsu Huwu Company and Xinyi Yangzhou Company reached another enforcement settlement agreement and withdrew the enforcement application in this case, and the court again ruled on September 27, 2019 to terminate the enforcement of the (2015) Yang Zhong Diao Zi No. 367 Mediation Letter.
On November 29, 2019, the Yangzhou Intermediate Court established (2019) Su 10 Enforcement Case No. 43 for enforcement based on the application of the applicant for enforcement. Jiangsu Huwu Company and Xinyi Yangzhou Company reached an enforcement settlement agreement for the third time and withdrew the enforcement application in this case, and the court again ruled on August 26, 2020 to terminate the execution of the (2015) Yang Zhong Diao Zi No. 367 Mediation Letter. According to the application of the applicant for enforcement, the court set up (2020) Su 10 Enforcement Case No. 40 on October 23, 2020, and issued the (2020) Su 10 Enforcement Ruling No. 40, ruling: freeze and seize the defendant Xinyi Yangzhou Company, Jiangsu Shenran Company, Jilin Hongyuan Company, Shenzhen Qingpeng Company, Wang Jian, Zheng Guiquan Bank deposit of 218,230,000 yuan or seal, seize or withdraw their corresponding value of property.
2. On January 21, 2016, the shareholders of Yangzhou Qingpeng Company were changed from CNPC Hong Kong Company to Shenzhen Gas Company and Shenzhen Yuanzhi Enterprise through industrial and commercial registration, the legal representative was changed from Zheng Shaowu to Liu Kebin, and the registered capital was changed from 20 million US dollars to 139,058,146 yuan; on November 21 of the same year, Yangzhou Qingpeng Company was changed to Jiangsu Deep-Burning Company through industrial and commercial registration; on January 24, 2019, the legal representative of Jiangsu Deep-Burn Company was changed from Liu Kebin to Dong Hongsong.
According to the (2020) Yue 03 Minchu No. 3361 Notice of Case Acceptance and the invoice for litigation fees, on July 2, 2020, the Shenzhen Intermediate Court accepted the case of the shareholder of the objector Jiangsu Shenran Company v. CNPC Hong Kong Company, Jiangsu Huwu Company and Xinyi Yangzhou Company over the confirmation of contract validity dispute, which is now under trial.
3. Jiangsu Shenran Company raised an objection and requested the revocation of the (2020) Su 10 Enforcement Case No. 40 to resume enforcement against the objector. Jiangsu Deep-Burning Company (2015) Yangzhong Diaozi No. 367 Arbitration Mediation Letter and the guarantee obligation under the enforcement settlement agreement, all relevant parties have signed a waiver of guarantee agreement, expressly stipulating that all exemptions are made, and Jiangsu Deep-Burning Company has no obligation to Jiangsu Huwu Company, the applicant for executor. On January 8, 2016, the executors Jiangsu Huwu Company, CNPC Hong Kong Company, Xinyi Yangzhou Company and the objector Jiangsu Shenran Company signed the "Exemption Guarantee Agreement" on the spot, applying for the executor Jiangsu Huwu Company to unconditionally exempt the objector Jiangsu Shenran Company from its guarantee guarantee liability in the (2015) Yangzhong Diao Zi No. 367 and No. 368 cases, and agreed to exempt it if there were other liabilities. So far, the objector Jiangsu Shenran Company has been fully exempted from its guarantee obligations and all other obligations to Jiangsu Shenran Company, the applicant for executor.
4. The Yangzhou Intermediate Court holds that if the parties or interested parties believe that the enforcement act violates the law, they may submit a written objection to the people's court responsible for enforcement. In this case, the dispute over the confirmation of the validity of the contract between the dissenting shareholder and CNPC Hong Kong, Jiangsu Huwu Company and Xinyi Yangzhou Company was still under trial, and the validity of the equity transfer contract and whether Jiangsu Shenran Company should bear the guarantee liability have not yet been determined. In order to avoid inconsistency between the enforcement ruling and the civil judgment, this case is not suitable for acceptance for the time being, and enforcement measures are not appropriate for Jiangsu Shenran Company for the time being. It ruled that Jiangsu Deepburn's application for enforcement opposition was not accepted.
Reasons for Court Summaries
The focus of the dispute in this case was whether the Yangzhou Intermediate Court should file a case for review of the enforcement objection raised by Jiangsu Shenran Company.
According to the Jiangsu High Court, article 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts stipulates that where a party or interested party raises an objection to the following acts in the course of enforcement or in the process of enforcing preservation or prior enforcement rulings, the people's court shall conduct a review in accordance with article 225 of the Civil Procedure Law: (1) enforcement measures such as sealing, seizure, freezing, auctioning, selling, paying debts in rem, suspending enforcement, suspending enforcement, and terminating enforcement; (2) Legal procedures that should be complied with such as the period and sequence of enforcement; (3) Other conduct made by people's courts that infringes upon the lawful rights and interests of parties or stakeholders. Where the person subject to enforcement submits an objection to the exclusion of enforcement on substantive grounds after the effective date of enforcement, such as the extinction of claims or the loss of enforcement effect, the people's court shall conduct a review with reference to article 225 of the Civil Procedure Law. In this case, Jiangsu Shenran Company, the respondent of the enforcement, claimed that after the arbitration mediation document came into effect, it had signed a security waiver agreement with the relevant party to expressly agree to exempt it from all the guaranteed debts involved in the case, and it had no obligation to the applicant for enforcement, and filed an enforcement objection with the Yangzhou Intermediate Court. The objection complies with the scope of review of enforcement objections as provided for in the judicial interpretation. In order to avoid inconsistencies between the enforcement ruling and the civil judgment and the inadmissibility of the civil judgment, the Yangzhou Intermediate Court ruled that its objection was an error in the application of law, and this court corrected it. ruling to revoke the enforcement ruling of the Yangzhou Intermediate People's Court of Jiangsu Province (2020) Su 10 Zhiyi No. 63; Order the Yangzhou Intermediate People's Court to review the objections raised by Jiangsu Shenran Clean Energy Co., Ltd.
Tags:Enforcement objection丨Enforcement reconsideration丨Enforcement filing丨Enforcement act丨Debt extinguished
Case Index: Jiangsu Provincial Higher People's Court (2021) Su Zhifu No. 49 "Jiangsu Shenran Clean Energy Co., Ltd., Jiangsu Huwu Construction Group Co., Ltd., Xinyi Real Estate (Yangzhou) Co., Ltd. and other domestic non-foreign-related arbitration awards enforcement ruling" (presiding judge Tang Zhirong, judge Zhao Jianhua judge Su Feng), published in China Judgment Documents Network (20210427).
Legal basis
Code of Civil Procedure
Article 225: Where parties or interested parties believe that the enforcement act violates the provisions of law, they may submit a written objection to the people's court responsible for enforcement. Where parties or interested parties raise written objections, the people's court shall review them within 15 days of receiving the written objections, and if the grounds are established, rule to revoke or make corrections; If the grounds are not founded, the ruling shall be rejected. Where parties or interested parties are dissatisfied with the ruling, they may apply for reconsideration to the people's court at the level above within 10 days of the service of the ruling.
Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts
Article 5: In any of the following circumstances, natural persons, legal persons, and unincorporated organizations other than the parties may raise objections to enforcement acts as interested parties:
(1) Where it is found that the people's court's enforcement acts are unlawful, obstructing the payment of their claims awaiting sealing, seizure, or freezing;
(2) Where it is believed that the people's court's auction measures are illegal and hinder their participation in fair bidding;
(3) Where it is believed that the people's court's auction, sale, or measures to settle debts in rem are illegal, obstructing their right of pre-emption to the enforcement of the subject matter;
(4) Where it is found that the matters requested by the people's courts for assistance in enforcement exceed the scope of their assistance or violate legal provisions;
(5) Where it is believed that other lawful rights and interests have been infringed upon by the people's courts' enforcement acts.
Article 7: Where parties or interested parties raise objections to the following conduct in the course of enforcement or in the course of enforcing preservation or prior enforcement rulings, the people's courts shall conduct a review in accordance with article 225 of the Civil Procedure Law:
(1) Enforcement measures such as sealing, seizure, freezing, auctioning, selling, paying debts in rem, suspending enforcement, suspending enforcement, or terminating enforcement;
(2) Legal procedures that should be complied with such as the period and sequence of enforcement;
(3) Other conduct made by people's courts that infringes upon the lawful rights and interests of parties or stakeholders.
Where the person subject to enforcement submits an objection to the exclusion of enforcement on substantive grounds after the effective date of enforcement, such as the extinction of claims or the loss of enforcement effect, the people's court shall conduct a review with reference to article 225 of the Civil Procedure Law.
Except as provided for in Article 19 of these Provisions, where the person subject to enforcement raises an objection to excluding enforcement on substantive grounds prior to the effective date of enforcement, the people's court shall inform him to apply for a retrial in accordance with law or to resolve it through other procedures.
Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlements
Article 9: Where the party subject to enforcement fails to perform the enforcement settlement agreement, the applicant for enforcement may apply for resumption of enforcement of the original effective legal documents, or may file a lawsuit with the enforcement court for the performance of the enforcement settlement agreement.
Article 11: Where the applicant for enforcement applies for resumption of enforcement on the grounds that the party subject to enforcement fails to perform the enforcement settlement agreement, and the people's court finds the grounds established after review, it rules to resume enforcement; In any of the following circumstances, the ruling shall not resume enforcement:
(1) Where an application for resumption of enforcement after the performance of the enforcement settlement agreement is completed;
(2) The time limit for performance stipulated in the enforcement settlement agreement has not yet expired or the performance conditions have not yet been fulfilled, except where the circumstances provided for in Article 578 of the Civil Code are met;
(3) The party subject to enforcement is performing its obligations in accordance with the enforcement settlement agreement;
(4) Other circumstances that do not meet the requirements for resumption of enforcement.
Article 12: Where parties or interested parties believe that resuming enforcement or not resuming enforcement violates legal provisions, they may raise objections in accordance with article 225 of the Civil Procedure Law.
Article 16: Where parties or interested parties believe that the enforcement settlement agreement is invalid or should be revoked, they may file a lawsuit with the enforcement court. After the enforcement settlement agreement is confirmed to be invalid or revoked, the applicant for enforcement may apply for resumption of enforcement accordingly.
Where the debtor initiates a lawsuit on the grounds that the enforcement settlement agreement is invalid or should be revoked, it will not affect the application for resumption of enforcement by the applicant for enforcement.
Article 19: In the course of enforcement, where the person subject to enforcement raises objections in accordance with article 225 of the Civil Procedure Law on the basis of a settlement agreement reached by the parties themselves but not submitted to the people's court, or a settlement agreement submitted by one party to the people's court but not recognized by the other parties, the people's court shall separately handle it in accordance with the following circumstances:
(1) Where the performance of the settlement agreement is completed, the ruling terminates the enforcement of the original effective legal document;
(2) Where the performance period stipulated in the settlement agreement has not yet expired or the performance conditions have not been fulfilled, it is ruled that enforcement shall be suspended, except where the circumstances provided for in Article 578 of the Civil Code are met;
(3) Where the party subject to enforcement is performing its obligations in accordance with the settlement agreement, rule to suspend enforcement;
(4) Where the person subject to enforcement fails to perform the settlement agreement, the objection shall be dismissed;
(5) Where the settlement agreement is not established, has not taken effect, or is invalid, the objection shall be dismissed.
Guidelines for the Trial of Enforcement Objections and Enforcement Objections by the Higher People's Court of Jiangsu Province (I)
3. Acceptance and claims of enforcement objections and enforcement objections
2. Where a party or interested party raises an enforcement objection based on the following reasons, it shall be examined and handled in accordance with Article 225 of the Civil Procedure Law:
(1) Claiming a mortgage on the subject matter of enforcement or a right of lien or pledge that cannot be prevented from executing;
(2) Claiming statutory priority over the subject matter of enforcement, such as priority in construction project price, priority in ships, priority in taxation, priority in the transfer of allocated land use rights, priority in civil aircraft, priority in tuition and miscellaneous expenses for education recipients, priority in reimbursement of remaining prices, etc.;
(3) claiming that the debtor has an ordinary claim;
(4) Claiming that although the subject matter of enforcement has a lease right, the enforcement does not affect the exercise of the lease right, or the lease right is formed after mortgage or seizure;
(5) the rights provided for in Article 14 of the Several Provisions of the Supreme People's Court on the Partial Enforcement of Criminal Judgments Involving Property;
(6) Other procedural rights and interests and substantive rights that are insufficient to exclude enforcement.