Author: Bao Longqing lawyer Fa Mang 2024-03-22 10:50 Xinjiang
About author:Bao Longqing, a native of Gansu, Han nationality, graduated from Xinjiang University, a member of the All China Lawyers Association, and is now a full-time lawyer at Xinjiang Xiangrui Law Firm, practicing license number: 16501202110358404. Mr. Bao Longqing attaches great importance to the combination of legal theory and judicial practice, and has a profound foundation in legal theory and rich practical experience, and his main practice areas include labor dispute resolution, marriage and family disputes, company-related disputes, contract disputes, tort and other civil and commercial disputes, as well as criminal cases. In order to repay the society, lawyer Bao Longqing provides free litigation services for two Gansu migrant workers in Xinjiang twice a year, please send private messages if necessary.
Summary of Key Points of Enforcement Cases in the People's Court's Case Database (1-21)
Source: People's Court Case Database (https://rmfyalk.court.gov.cn/dist/home.html).
So far, a total of 189 enforcement cases have been entered into the people's courts' case database, including 11 guiding cases and 178 reference cases.
This article summarizes the top 21 enforcement cases in the people's court case database, and other cases will be continuously updated in the later stage, welcome to pay attention.
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I. Guiding Cases
1. Guiding Case No. 2: Wu Mei v. Sichuan Meishan Xicheng Paper Co., Ltd., a dispute over a sales contract – where an appeal is withdrawn after reaching a settlement agreement, the basis for enforcement is the first-instance judgment.
【Main Points of the Adjudication】Where, during the second-instance trial of a civil case, the parties reach a settlement agreement, and the people's court permits the withdrawal of the appeal, the settlement agreement has not been drafted by the people's court in accordance with law, and is an agreement reached outside of litigation. Where one party fails to perform on the settlement agreement, and the other party applies to enforce the first-instance judgment, the people's court shall support it.
02. Guiding Case No. 117: Enforcement of Reconsideration Proposal by China Construction Third Engineering Bureau No. 1 Construction Engineering Co., Ltd., Australia-China Fortune (Hefei) Investment Real Estate Co., Ltd., and Anhui Wenfeng Real Estate Co., Ltd. -- If a third party joins the creditor-debtor relationship by way of debt assumption during mediation, it may be enforced within the scope of its debt assumption.
【Main Points of the Adjudication】According to the civil mediation document and mediation record, if a third party joins the creditor-debtor relationship by way of debt assuming, the enforcing court may enforce it within the scope of the third party's debt assumption. If the debtor uses a commercial acceptance bill to perform the debt determined on the basis of enforcement, and although the commercial acceptance bill has been issued and delivered to the creditor, it cannot be paid due to insufficient funds in the bill of exchange payment account or it is frozen, etc., it cannot be deemed that the debt has actually been performed, and the creditor may request continued enforcement against the debtor.
03. Guiding Case No. 118: Northeast Electric Development Co., Ltd., China Development Bank Co., Ltd., Shenyang High Voltage Switchgear Co., Ltd., et al., Enforcement Reconsideration Case—After winning the creditor's right of revocation lawsuit, the transferee failed to perform the obligation to return the property or failed to notify the creditor how to execute it when returning.
[Main Points of the Adjudication] 1. The effective judgment of the creditor's right of revocation lawsuit revokes the property transfer contract between the debtor and the assignee, and orders the assignee to return the property to the debtor, and if the assignee fails to perform the obligation of return, the creditor may apply for compulsory enforcement on behalf of the debtor and the assignee. 2. If the transferee returns the property to the debtor on its own without notifying the creditor, and the debtor immediately transfers the returned property, causing the creditor to lose the opportunity to apply to the court for measures such as seizure and freezing, and the purpose of the revocation lawsuit cannot be realized, it cannot be determined that the effective judgment has been effectively performed. Where a creditor applies to enforce the obligation to return the property determined by the effective judgment against the transferee, the people's court shall support it.
04. Guiding Case No. 119: Anhui Chuzhou Construction and Installation Engineering Co., Ltd. v. Hubei Chari Electric Co., Ltd. Enforcement Reconsideration Proposal - A settlement agreement has been reached and performed before enforcement, and the creditor's application for enforcement of the original effective legal document should be accepted.
【Main Points of the Adjudication】Before the enforcement procedure begins, both parties reach a settlement agreement and perform it on their own, and one party applies for compulsory enforcement of the original effective legal document, the people's court shall accept it. Where the person subject to enforcement raises an objection to enforcement on the grounds that the settlement agreement has already been performed, it may be reviewed and handled with reference to article 19 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement".
05. Guiding Case No. 120: Qinghai Jintai Financing Guarantee Co., Ltd. vs. Shanghai Jinqiao Engineering Construction and Development Co., Ltd. and Qinghai Sangong Real Estate Co., Ltd. Enforcement Reconsideration Case-If the guarantor undertakes to assume the guarantee liability when the person subject to enforcement has no property available for enforcement or the property is insufficient to pay off the debt, the enforcement rules of general guarantee shall apply to the guarantor.
【Main Points of the Adjudication】Where the guarantor provides a guarantee for the person subject to enforcement during the trial of the case, promising to bear the guarantee liability when the person subject to enforcement has no property to enforce or the property is insufficient to pay off the debt, the enforcing court shall apply the enforcement rules of general guarantees to the guarantor. When the person subject to enforcement has property but it is seriously inconvenient to enforce it, the guarantor's property within the scope of the guarantee liability may be enforced.
06. Guiding Case No. 121: Zhuzhou Haichuan Industrial Co., Ltd. and Bank of China Co., Ltd., Changsha Cai Yi Sub-branch, Hunan Deyihong Metal Materials Co., Ltd., Property Preservation Enforcement Reconsideration Proposal - How to deal with the property preserved by others and the person subject to preservation does not pay the custody fee.
【Main Points of the Adjudication】In cases of enforcement of property preservation, where the subject matter of the preservation is non-monetary movable property and is in the custody of others, the custodian shall assist in enforcement in accordance with the notice of the people's court. When the custody contract or lease contract is not renewed after expiration, and the person subject to preservation does not pay the custody or lease fees, the person assisting the enforcement has no obligation to continue to keep it free of charge. Where the value of the subject matter of preservation is sufficient to pay for the custody costs, the people's court may maintain the sealing until the case takes effect, and the proceeds from the enforcement of the preservation of the subject matter shall give priority to the payment of the custodian's custody fees;
07. Guiding Case No. 122: Enforcement Supervision Case of Henan Shenquan Zhiyuan Industrial Development Co., Ltd. vs. Zhao Wujun, Ruzhou Boyi Tourism Medical Theme Park Development Co., Ltd., et al. - Order of Compensation in the Consolidated Enforcement of Cases.
【Main Points of the Adjudication】Where the enforcing court combines several cases of the same person subject to enforcement for enforcement, it shall pay off the debts in accordance with the order in which the claims of the applicant for enforcement are repaid, so as to avoid infringing on the interests of other creditors who are in priority.
08. Guiding Case No. 123: Yu Hongyan v. Xilin Gol Menglongxing Mining Co., Ltd. Enforcement Supervision Case – The Mining Right Transfer Contract Has Been Established but Has Not yet Taken Effect, and Whether the Mining Right Can Be Transferred Should Be Decided by the Competent Authority.
【Main Points of the Adjudication】The effective judgment finds that the mining right transfer contract has been established in accordance with the law but has not yet taken effect, and orders the transferor to go through the formalities for the transfer of mining rights in accordance with the contract, which is not a determination of the ownership of the mining rights, and the enforcing court accordingly issues a notice to the relevant competent authority to assist in handling the formalities for the transfer of mining rights, which only has the effect of initiating the examination and approval of the procedures for the transfer of mining rights by the competent authority, and whether the mining rights can be transferred shall be decided by the relevant competent authorities in accordance with law. If the applicant for execution requests to change the transferee of mining rights, it shall also be judged by the relevant competent authority in accordance with law.
09. Guiding Case No. 124: Enforcement Supervision Case of China Academy of Defense Science and Technology v. United Resources Education Development (Yanjiao) Co., Ltd. – How to deal with disputes between the parties over the content of the enforcement settlement agreement.
【Main Points of the Adjudication】Where there is a dispute between the person applying for enforcement and the person subject to enforcement over the content of the enforcement settlement agreement, and it is objectively impossible to continue performance, the original effective legal document may be enforced. The parties may resolve the content not covered by the original basis for enforcement in the enforcement settlement agreement, as well as disputes arising during the performance process, through other relief procedures.
10. Guiding Case No. 125: Chen Zaiguo v. Liu Rongkun, Guangdong Shantou Fishery Products Import and Export Company, et al., Application for Revocation of Supervision of Auction Enforcement – What Nature of Law Should Be Relied on to Handle Online Judicial Auction Disputes.
【Main Points of the Adjudication】Online judicial auctions are judicial auctions conducted by the people's courts through internet auction platforms, and are compulsory enforcement measures. People's courts shall apply the provisions of the Civil Procedure Law and relevant judicial interpretations to handle disputes arising from online judicial auctions.
11. Guiding Case No. 126: Jiangsu Tianyu Construction Group Co., Ltd. v. Wuxi Times Shengye Real Estate Development Co., Ltd. Enforcement Supervision Case - Whether the enforcement of the original effective legal documents should be resumed if the person subject to enforcement delays the performance of the settlement agreement, and the applicant for enforcement continues to accept and actively cooperate with the person subject to enforcement to fully perform the settlement agreement.
【Main Points of the Adjudication】In the course of performing a settlement agreement, where the person applying for enforcement applies for resumption of enforcement due to the delay in performance by the person subject to enforcement, while continuing to accept and actively cooperate with the subsequent performance of the person subject to enforcement, until the full performance of the settlement agreement is completed, it is a situation where the performance of the settlement agreement as provided for in the Civil Procedure Law and relevant judicial interpretations is no longer resumed.
2. Reference cases
12. The implementation case of a bank Huangshi Branch and a real estate company in Daye City - "Futures Cash" implements the concept of goodwill and "stocking fish" to help the business environment.
【Main Points of the Adjudication】Where a construction in progress that has been preserved and sealed by a people's court has already met the conditions for completion acceptance and handling of the first registration of immovable property rights, it may involve the seizure of a project that exceeds the standard, and the seizure may be lifted on the application of the person applying for enforcement or ex officio on the premise that both parties agree and do not harm the state, the public interest and the lawful rights and interests of third parties. After the first registration of the ownership of immovable property, a judicial assessment shall be conducted in accordance with the law, and the seizure of the part of the immovable property exceeding the standard shall be lifted, and then disposed of in accordance with the law.
13. Zhu Mouhua case: The application of the principle of proportionality in the auction of the sole house.
【Main Points of the Adjudication】When auctioning the only house in the name of the person subject to enforcement, the appropriateness, necessity, and measurement of the auction shall be reviewed in turn in accordance with the principle of proportionality. The three sub-principles of the principle of proportionality can be used to standardize and review auction behavior in a "three-step method". First, it is difficult to achieve the enforcement purpose of the auction of the house involved in the case, which does not conform to the principle of appropriateness; second, where other alternative enforcement measures can be selected to reduce the infringement of rights and interests, it does not conform to the principle of necessity; third, the harmful consequences of the auction of the house involved in the case to the rights and interests of the person subject to enforcement and persons not involved in the case are disproportionate to the purpose that can be achieved by the auction, and do not conform to the principle of measurement. If one of them does not meet the requirements, it is not appropriate to auction the only house in the name of the person subject to enforcement, so as to protect the basic survival and residence rights and interests of the person subject to enforcement.
14. Company A and Bank B execute the reconsideration proposal - after the mortgaged property is preserved and sealed, the mortgagee has the right to receive the legal fruits of the mortgaged property.
【Main Points of the Adjudication】Where the debtor fails to perform the debts due or the parties agree to realize the mortgage right, resulting in the mortgaged property being seized by the people's court in accordance with law, the mortgagee shall have the right to receive the natural or legal fruits of the mortgaged property from the date of seizure, and the premise is not that the effective judgment of the people's court confirms the secured creditor's right and enters the enforcement procedure, unless the mortgagee fails to notify the obligor who shall pay off the statutory fruits.
15. Case of Enforcement and Implementation of XX Trust Company and Shanghai XX Investment Company, Hangzhou XX Real Estate Company, and Zhoushan XX Real Estate Company - If the lease right formed after the establishment of the mortgage right does not prejudice the realization of the mortgage right, it may not be eliminated after obtaining the consent of the person applying for enforcement.
【Main Points of the Adjudication】The leasehold rights formed after the establishment of the mortgage on the auctioned property should not always be extinguished. If the lease right does not affect the realization of the mortgage right, it may be auctioned with rent after obtaining the consent of the applicant for enforcement.
16. Gao XX and Hu XX Enforcement Reconsideration Case - After the losing party is placed on file for compulsory enforcement due to failure to pay litigation fees, it cannot request a suspension of enforcement on the grounds that it has applied to the trial court for review.
【Main Points of the Adjudication】After the judgment takes effect, the people's court issues a notice of payment of litigation fees to the losing party that shall pay the litigation fees, and where the losing party fails to pay the litigation fees within the specified time limit, the case may be filed for enforcement. Where the person subject to enforcement asserts that it has applied to the trial court for a review of the amount of litigation fees and should be enforced after the review decision is made, it should not be supported because the review procedure is not a circumstance in which the people's court should suspend enforcement. If the effective civil judgment determines that the litigation costs of the case shall be borne jointly by the two losing parties, but the shares are not clearly distinguished, the court has the right to enforce all of them, and if the person subject to enforcement believes that its performance of obligations exceeds its share, it may separately recover from the other party in accordance with law.
17. An investment company in Shenzhen and a trading company in Hubei Province apply for enforcement at the same time - the transferee and the transferor of the creditor's rights apply for enforcement at the same time, and the corresponding provisions on the application of a third party to change or add it as the applicant for enforcement shall be referred to.
【Main Points of the Adjudication】When the transferee of the creditor's right and the assignor of the creditor's right apply for enforcement at the same time, the corresponding provisions on the application of the third party to change or add the creditor as the applicant for enforcement shall be applied with reference, that is, under the condition that the creditor's right determined in the effective legal document is transferred to the third party in accordance with the law, the condition that "the person applying for enforcement must approve in writing that the third party has obtained the creditor's right" shall be met at the same time. If the parties have a dispute over the validity of the contract for the assignment of creditor's rights, it shall be resolved through a separate lawsuit.
18. Enforcement of the reconsideration case of the Hohhot branch of a bank - the effective legal documents applying for enforcement do not have clear and specific payment content, and do not meet the conditions for enforcement.
【Main Points of the Adjudication】Effective legal documents in which parties apply to the people's court for enforcement shall have clear and specific payment content, otherwise the requirements for enforcement are not met. The main text of the effective judgment determines the subject matter of the pledge involved in the case, the scope of the exercise of the pledge and the specific amount calculation method, but because the liquidated damages to be borne by the person subject to enforcement in the calculation method are not clear, and do not meet the statutory circumstances that the payment content determined on the basis of enforcement should be specific and clear, the conditions for enforcement are not met at present. After the liquidated damages are determined and the payment content of the basis for enforcement is clarified, the applicant for enforcement may apply for enforcement again.
19. Enforcement reconsideration case of a real estate company in Zunyi and a trust company in Chongqing - if the person applying for enforcement fails to notify the person subject to enforcement of the transfer of the creditor's rights or cannot confirm whether it is notified after the transfer of the creditor's rights in accordance with the law, it does not affect the transferee of the creditor's rights to apply to the enforcement court to change it to the person applying for enforcement.
【Main Points of the Adjudication】Where, after the applicant for enforcement has transferred the creditor's rights in accordance with the law, it fails to notify the person subject to enforcement of the assignment of the creditor's rights or cannot confirm whether it has notified, it does not affect the transferee of the creditor's rights to apply to the enforcement court to change it to the applicant for enforcement in accordance with Article 9 of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement Cases, but before the applicant for enforcement notifies the person subject to enforcement of the assignment of the creditor's rights, the performance of the obligations determined by the effective legal documents to the applicant for enforcement has the effect of repayment.
20. Case of reconsideration of the enforcement of a loan contract dispute between Zheng XX and an investment limited company or a real estate limited company - where the right holder determined by the judgment transfers the creditor's rights during the litigation period, and the transferee participates in the litigation as a third party, and the judgment confirms the fact of the transfer of the creditor's rights, the transferee may directly apply for enforcement.
【Main Points of the Adjudication】Where the transferee of the creditor's right applies for a change of the person applying for enforcement, or directly applies for enforcement, the requirement that the written approval of the assignor shall be obtained shall be applied in principle to the situation where the assignment of the creditor's right has not been confirmed by an effective judgment. Where an effective judgment lists the assignee of the creditor's rights as a third party without an independent right to make a claim, and ascertains the relevant facts of the assignment of the creditor's rights, the facts determined in the judgment may be used as the basic basis in the absence of evidence to the contrary when the issue of changing the subject of the application for enforcement is handled at the stage of filing the case or during the enforcement process. An effective judgment determining the fact of assignment of creditor's rights is binding on the assignor and the assignee. Therefore, the fact that the enforcing court directly filed and accepted the case without consulting the assignor did not violate the requirements of the Provisions of the Supreme People's Court on Several Issues Concerning the Change and Addition of Parties in Civil Enforcement.
21. A real estate company in Ganzhou and Yang and a development company in Ganzhou executed the reconsideration case - the interested party cannot obtain the priority right of compensation and cannot obtain the effect of the court's seizure when handling the formalities of online signing of commercial housing.
【Main Points of the Adjudication】The online signing and filing after signing the sales contract is an administrative compulsory act, which is the publicity of the sale and purchase of commercial housing rather than the publicity of the mortgage guarantee, and does not have the publicity effect of the registration of the advance notice of real rights. As a government department to regulate the online filing and registration of real estate development enterprises, housing intermediary companies and other relevant entities to carry out the pre-sale management of commercial housing, it is completely different from the seizure of the real estate and other property of the person subject to preservation or enforcement by the people's court in accordance with the Civil Procedure Law and other laws in the preservation or enforcement stage.
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All contents of this Official Account are for reference only and do not represent the specific legal opinions, suggestions or decision-making basis issued by this Official Account. If you need legal advice or other professional analysis, please contact Mr. Bao Longqing by private message.