Paying off debts is a matter of course! However, when the debtor's existing funds are insufficient to repay the debt, the first thing all creditors want to do is to protect their rights and interests from damage. In the process of protecting their own rights and interests, whether the debtor's living conditions change is not considered by the creditor at all.
In other words, as long as the debtor can repay the money, the creditor may not care so much about whether the debtor can afford to eat and whether he has a place to live after repaying the money.
But what creditors don't care, the law cares very much! Mainland law has always insisted on being people-oriented, and cannot "exterminate all debtors" because of established facts such as debts!
Therefore, in addition to understanding what assets can be enforced in the debtor's name, you must also have a certain understanding of the court's enforcement rules, so as to help you better protect your rights and interests in debt and creditor's rights disputes.
Friends who haven't followed Brother Mata can like and follow Brother Mata. If you have a loan dispute with an amount of more than 1 million, and the appellate court is in Chengdu, then you can tell your story to Brother Mata, and it may be able to help you.
1. Asset seizure
Although the court may seal, seize, freeze, etc. the movable property, immovable property, and other assets in the debtor's name, it must be open to the assets that affect the debtor's minimum livelihood or medical security.
In 2004, the Supreme People's Court adopted the Provisions of the Supreme People's Court on the Sealing, Seizure and Freezing of Assets in Civil Enforcement by the People's Courts, which exempts certain special items from sealing, seizure and freezing.
Among them, it includes the clothes, furniture, cooking utensils, tableware and other items necessary for the life of the person subject to enforcement and the family members he supports; The necessary living expenses of the person subject to enforcement and his or her dependents. Where there is a minimum subsistence security standard in the locality, the necessary living expenses shall be determined in accordance with that standard; Items necessary for the person subject to enforcement and their dependents to complete compulsory education;
At the same time, it includes undisclosed inventions or unpublished works; Assistive tools and medical supplies necessary for the person subject to enforcement and their dependents for physical defects; Medals and other items of honor and commendation obtained by the person subject to enforcement.
In the case of common property, not all assets can be enforced, and the disposal of common assets will be more complicated than assets in the name of individuals.
Although Article 12 of the Provisions on the Sealing, Seizure and Freezing of Assets stipulates that "the people's court may seal, seize and freeze the property jointly owned by the person subject to enforcement and other persons, and notify the co-owners in a timely manner." However, where the co-owners agree to divide the common property and are approved by the creditors, the people's court may find it valid. the effect of sealing, seizure and freezing and the property within the share enjoyed by the person subject to enforcement after the division of the agreement; The people's court shall rule to lift the sealing, seizure, or freezing of property within the share enjoyed by other co-owners.
To put it simply, for common property, the court can enforce the part that belongs to the person subject to enforcement, but the court does not have the right to seize the part that is not in the name of the person subject to enforcement. Even if it is sealed, as long as "the co-owner files a lawsuit for property dissolution or the applicant for enforcement files a lawsuit for property dissolution by subrogation", the people's court shall allow it and suspend the enforcement of the property.
For example, if one of the spouses owes a debt, and the court wants to seal up the joint house under the name of the husband and wife, it can only seize the part of the person subject to enforcement recognized by law, and the part that belongs to the name of the other spouse, and the court has no right to seal it up and dispose of it last. Therefore, creditors should never think that if the debtor has a house at home, he can carry out the seizure and auction.
And if this asset involves a third party/person, the handling will be more complicated!
2. Third-party assets
In the process of sealing, seizing and freezing assets in the name of a third party, the court depends entirely on the specific circumstances, and not every asset in the name of a third party can be sealed.
The regulations stipulate that if the court determines that the assets in the name of a third party are actually in possession for the purpose of protecting the interests of the person subject to enforcement, then the court may seal, seize or freeze the assets; However, if the asset is only handed over to a third party by the person subject to enforcement for safekeeping, then the court may require the third party not to deliver it to the person subject to enforcement; However, if the third party is in possession of the assets in the name of the person subject to enforcement for their own interests, then the court can seize them, but the third party can continue to use the assets, but they cannot deliver them to the person subject to enforcement.
Suppose Brother Ma is the elder brother of the person subject to execution, and my younger brother gave me a house or a car in order to avoid debts, then the court can directly seize this house or this car.
At the same time, the regulations also stipulate that if a third party buys an asset in the name of the person subject to enforcement, and has already paid part of the price and has actually taken possession of the asset. However, according to the contract, if the ownership of the asset belongs to the person subject to enforcement, the court may seize it; If the third party requests to continue the performance of the contract, the third party may unseal it after paying the full balance to the court.
The legal provisions here prevent creditors from making false transactions to transfer assets under their names.
However, if the person subject to enforcement sells all the property that needs to be registered for transfer to a third party, and the third party has already paid part or all of the price and is actually in possession of the property, but has not yet gone through the formalities for the registration of the transfer of property rights, the people's court may seal, seize or freeze it.
However, if the third party has paid the full price and is in actual possession, but has not yet completed the transfer registration formalities, and the third party is not at fault for this, then the court can no longer seize it.
However, if the person subject to enforcement has already paid part of the price and is in actual possession of the property if the person subject to enforcement has taken the initiative to purchase the third-party assets, and the third party retains ownership in accordance with the contract, then the people's court may seize the assets.
If the retention of title has been registered, but the remaining money has not yet been paid, the remaining price of the third party shall be paid in priority from the sale price of the property; Where a third party claims to recover the property, they may raise an objection in accordance with article 227 of the Civil Procedure Law.
To put it simply, if the asset has been sold to the person subject to enforcement and the registration has been completed, the remaining price that the third party has not yet received must be paid from the proceeds after the sale of the asset, and enjoy the right of limited payment. However, the auction price is generally lower than the normal sale price, and the seller is likely to be unable to recover the price from the sale price, so it will have to file an action to recover the asset.
Finally, if the person subject to enforcement purchases the property of a third party that needs to be registered for transfer, has paid part or all of the price and is actually in possession of the property, and has not gone through the formalities for the transfer of property rights, but the applicant for enforcement has paid the remaining price to the third party or the third party agrees that the remaining price will be paid in priority from the sale price of the property, the people's court may seal, seize or freeze it.
After understanding the rules of the court to enforce the seizure, the creditor must learn how to get back his assets.
3. Last resort
In the process of court enforcement, we must recognize a reality, that is, although the court will enforce the debtor, in fact, the court's enforcement is very limited.
Generally speaking, if the debtor runs away, or conceals the assets in his name and fails to report, or transfers the assets in his name, the court will most likely have no recourse. At the same time, the courts are more cautious about detention and initiating public prosecutions, and will not lightly detain or hand over to the public security organs for review, and the procuratorial organs will initiate public prosecutions.
Therefore, after the occurrence of debt disputes, creditors must try to find clues such as the whereabouts and assets of the debtor. The more clues the creditor has, the better it is for the court to enforce the debt.
For example, posting reward announcements, developing informants near the debtor's home, and adding the debtor's WeChat Douyin are all summarized by Brother Yu, which is a more effective method, and for the transfer of assets, etc., you can apply to the court for an investigation order through a lawyer, etc., and then deal with the transferred assets in a targeted manner.
Brother Mata hopes that every enforcement case can be handled fairly, and I hope that it can help everyone!
Finally, it may be helpful to provide a solution for friends who are really desperate, that is, if the court of appeal is in Chengdu, and the amount owed by the other party exceeds 1 million, and the application for enforcement has been more than 3 years, but there is still no effect. Brother Ma suggested that you can tell the story to Brother Ma and teach you to subdue the old man.
In addition, it should be reaffirmed that the courts are a place where legal fairness and justice are demonstrated, and the Court Enforcement Directorate is also faced with the reality of insufficient manpower. Therefore, if you simply hope that the court can complete everything except your appeal and help you successfully get the debt, you must be prepared for the possibility of failure.
All debtors must remember! Recovering debts is not only the responsibility of the court, but also the responsibility of creditors. If the creditors don't take the initiative, who will take the initiative to help you? The litigation fees and compulsory fees charged by the court are not fees charged for market transactions. So, everyone must understand!
Finally, friends who haven't followed Brother Mata yet, you can hurry up and follow Brother Mata! Friends in need can also like, favorite, and retweet this tweet.