Source: Tax Yutang - Wu Mei
introduction
In the enforcement stage, how to balance the interests of creditors and the legitimate rights and interests of debtors is an issue of great concern to everyone, especially how to carry out property seizure, how to judge the value of property, how to deal with supervision accounts and other issues have received widespread attention. This article analyzes a real case that has been selected into the case database of the people's court, and discusses how to judge and deal with the problem of excessive seizure in the process of enforcement.
1. Practical cases
(1) An overview of the case
Case name: A branch of a bank and a company in Linyi executed a reconsideration case
Keywords: Execution of reconsideration of excess seizure value estimates
The court's view: The court should comprehensively consider various factors to estimate the seized property, and then determine whether there is an excessive seizure
Warehousing number: 2024-17-5-202-020
Case No.: (2021) Lu 13 Zhifu No. 257
Date of adjudication: December 14, 2021
Trial court: Intermediate People's Court of Linyi City, Shandong Province
Brief description of the case: The facts of the case are summarized as follows: A branch of a bank, a company A, a company in Linyi, etc., due to a dispute over a financial loan contract, the Lanshan court tried and ruled that a company A should repay the loan principal and interest of a branch of a bank, and that a company in Linyi should bear joint and several liabilities for repayment, and a company in Linyi was dissatisfied with the first-instance judgment and appealed to the Linyi Intermediate People's Court, and the original judgment was upheld in the second-instance trial. A branch of a bank applied for enforcement, and the Yinan court filed an enforcement case to freeze the deposits of a company in Linyi, and a company in Linyi raised an objection to enforcement, arguing that the property seized and frozen during the enforcement process exceeded the subject matter of enforcement, and the frozen account was a supervision account. The Yinan court ruled to lift the freeze on the X1 account of a company in Linyi and rejected other objections. The Linyi Intermediate People's Court held that the value of the seized property involved in the case was sufficient to ensure the realization of the creditor's rights, and the frozen X1 account was the supervision account for the pre-sale funds of the commercial housing, which should be unfrozen, and the judgment lifted the seizure of the supervision account for the pre-sale funds of the commercial housing.
(2) The basic facts of the case
During the trial of a financial loan contract dispute between a branch of a bank and a company A and a company in Linyi, the Lanshan District People's Court of Linyi City, Shandong Province (hereinafter referred to as the Lanshan Court) seized 70 properties of the respondent Linyi company on August 28, 2019, for a period of three years.
On February 7, 2020, the Lanshan Court rendered the (2019) Lu 1302 Min Chu No. 13421 Civil Judgment, ruling that the defendant Company A should repay the principal of the loan of 20 million yuan and interest of the plaintiff a branch of a bank within 10 days after the judgment took effect, and pay the property preservation fee of 5,000 yuan for the realization of the creditor's rights of the plaintiff a branch of a bank in this case, and that the defendant Linyi company and others shall be jointly and severally liable for the above-mentioned payment obligations and case acceptance fees determined by the judgment. The defendant, a company in Linyi, was dissatisfied with the judgment and appealed. On December 1, 2020, the Intermediate People's Court of Linyi Municipality, Shandong Province (hereinafter referred to as the Linyi Intermediate People's Court) rendered the (2020) Lu 13 Min Zhong No. 3731 Civil Judgment: rejecting the appeal and upholding the original judgment.
On December 25, 2020, the Lanshan People's Court filed a case for enforcement based on the application of a branch of a certain bank, and then the Linyi Intermediate People's Court appointed the People's Court of Yinan County, Shandong Province (hereinafter referred to as the Yinan Court) for enforcement with the (2021) Linzhi Zhi Zi No. 24 Enforcement Ruling. On September 9, 2021, the Yinan Court filed the case (2021) Lu 1321 Zhi No. 2058 for enforcement. On September 22, 2021, the Yinan Court made an enforcement ruling (2021) Lu 1321 Zhi No. 2058-1: the deposit of RMB 20163515 in the X1 account of a company in Linyi, the person subject to enforcement, was frozen, and 11,903,022.46 yuan was actually frozen. On September 22, 2021, the Yinan Court made the (2021) Lu 1321 Zhi 2058-2 II Enforcement Ruling: to freeze the deposit of RMB 20163515 in the X2 account of a certain bank in Linyi, the person subject to enforcement, and actually freeze 1,100,739.95 yuan.
Subsequently, a company in Linyi raised an enforcement objection to the appeal freezing ruling, claiming that it was not clear whether the objector should bear joint and several liability for repayment, that the property seized and frozen by the Yinan court during the enforcement process had exceeded the subject matter of enforcement, and that the frozen bank account was the supervision account of the Linyi Municipal Housing and Urban-Rural Development Bureau. He requested that the enforcement act in this case be revoked and that the bank account be unfrozen. According to the investigation of the Yinan Court, on August 27, 2021, the Linyi Municipal Housing and Urban-Rural Development Bureau (Party A), a company in Linyi (Party B), and a branch of a bank B (Party C) jointly signed three copies of the "Linyi City Commercial Housing Pre-sale Fund Supervision Agreement", stipulating: A company in Linyi has an X1 account in a bank B that is the supervision account of commercial housing pre-sale funds in Linyi XX1 Community, with a total amount of project supervision funds of 36787181 yuan, and the regulatory authority is Linyi Housing and Urban-Rural Development Bureau.
After review, on November 17, 2021, the Yinan Court made the (2021) Lu 1321 Zhiyi No. 53 Enforcement Ruling: 1. Lift the freeze on the X1 account of a company in Linyi Bank B; 2. Reject other objection requests of a company in Linyi. A branch of a bank A then applied to the Linyi Intermediate People's Court for reconsideration, requesting that the Yinan Court's (2021) Lu 1321 Zhiyi No. 53 enforcement ruling be revoked in accordance with the law on the grounds that there was no problem of excessive enforcement or seizure in this case, and that the court lacked factual and legal basis for lifting the freezing of the accounts involved in the case, and that the objection to the objection of a company in Linyi should continue to be sealed and deducted.
In the reconsideration hearing and investigation, both parties recognized the following facts: the 13 properties in the XX1 community of Linyi that were seized involved in the case were housing; Among the 56 sets of real estate in Linyi XX2 Community, 7 houses, 42 underground parking spaces, and 7 storage rooms, of which Room X of Building X in 7 houses has been ruled to suspend the execution due to objections from outsiders.
During the reconsideration review process of the Linyi Intermediate People's Court, the reconsideration applicant, a branch of a bank of A, mainly provided the following evidence to prove that there was no excessive seizure in this case: 1. The information on the sale of real estate in Linyi XX1 community queried by the website of a second-hand house is intended to prove that the lowest price of the community is 3,358 yuan/㎡, the listing time is September 20, 2021, and there is no transaction record in the community in the past 90 days. The actual value of the property in the community is much lower than the value submitted by the judgment debtor. The information on sale shows that the average price of the community is 6294 yuan/㎡. Second, a second-hand housing website to inquire about the sale information of Linyi XX1 community. The information on sale shows that the average listing price in December was 6481 yuan/㎡. 3. A second-hand housing website inquires about the information for sale in Linyi XX1 community. The information on sale shows that the average listing price in December was 6481 yuan/㎡.
A company in Linyi, the person subject to enforcement, mainly provided the following evidence to prove that there was an excessive seizure in this case:
1. Three printouts of the photos of the online signing price of the new commercial housing of the Linyi Municipal Real Estate Bureau, which are intended to prove that the unit price of the recorded floor of the Linyi XX1 community developed and constructed by a company in Linyi is 8,283 yuan per square meter.
2. A commercial housing sales contract signed by a company in Linyi and an outsider to Wei, intends to prove that the unit price of the high-rise in the Linyi XX2 community developed and constructed by a company in Linyi is 16,000 yuan per square meter, and the outsider pays the house price in full at a price of 16,000 yuan per square meter.
3. The Linyi Municipal Real Estate Bureau inquired about the printout of the inquiry information of the 13 properties in the XX1 community of Linyi under the name of a certain company in Linyi that a branch of a certain bank in Linyi seized are intended to prove that all the 13 properties in the XX1 community in Linyi that were seized by a branch of a certain bank are the first seals.
4. The Linyi Municipal Real Estate Bureau inquired about the printout of the inquiry information of 56 properties in Linyi XX2 Community under the name of a company in Linyi that was seized by a branch of a certain bank, as well as a statement of the situation issued by the Lanshan Court on November 18, 2021, which stated: The seizure of 43 properties in Building X of Linyi XX2 Community in the case of Lanshan Court (2017) Lu 1302 Zhi 1892 has become invalid because the applicant for enforcement did not apply for continued seizure; It is intended to prove that the 56 properties in XX2 community under the name of a company in Linyi that were seized by a branch of a certain bank are all the first seals, and they are not waiting to be sealed.
In addition, the construction contract submitted by the person subject to enforcement, a company in Linyi, signed between it and a company in Linyi, stated that the name of the project was X1#, X2#, X3#, X4#, X5#, X6# residential buildings in XX1 community, and X7# underground garage project; The planned start date is October 21, 2020, and the planned completion date is January 15, 2022, with a total calendar day of 450 days. A company in Linyi, the person subject to enforcement, also submitted the pre-sale permit for commercial housing, the planning permit for construction projects, the planning permit for construction land, and the construction permit for buildings X1, X2, X3, X4 and X5 in Linyi XX2 Community. On December 14, 2021, the Linyi Intermediate People's Court issued the (2021) Lu 13 Zhi Fu No. 257 Enforcement Ruling: rejecting the reconsideration application of the reconsideration applicant, a branch of a bank A, and upholding the objection ruling of the Yinan County People's Court (2021) Lu 1321 Zhi Yi No. 53.
(3) Reasons for the adjudication
The court held in its effective ruling that the focus of the dispute in this case was: 1. Whether there was any excessive seizure in this case. 2. Whether the supervision account for the pre-sale funds of the commercial housing involved in the case can be unfrozen in accordance with law.
With regard to the first focus of the dispute, the enforcement basis of this case is the (2019) Lu 1302 Min Chu No. 13421 Civil Judgment and the (2020) Lu 13 Min Zhong No. 3731 Civil Judgment. According to the registration information of the seizure of the real estate involved in the case provided by the person subject to enforcement and the statement of circumstances issued by the Lanshan Court, it is proved that the seizure of the 68 properties involved in the case is the first seal, including 13 houses in Linyi XX1 Community, 6 houses in Linyi XX2 Community, 42 underground parking spaces, and 7 storage rooms.
Generally speaking, in the course of enforcement, the value of sealed, seized or frozen property can be estimated in the following ways: (1) If bank deposits are frozen, the actual frozen amount shall be the frozen amount. (2) Where the property is sealed, the value of the seized property shall be estimated with reference to the value of the property in the same location and under the same conditions. If the seized property is a first-hand house, the sales price of the real estate development enterprise and the guidance price issued by the local real estate management department may be referred to; If the seized property is a second-hand house, it may refer to the price approved by the tax authorities and the transaction price of the second-hand housing market.
Regarding the estimated value of the 13 houses in the XX1 community of Linyi involved in the case. Although the reconsideration applicant does not recognize it, combined with the information on the sale of real estate in Linyi XX1 community in the second-hand housing website provided by the reconsideration applicant, the average listing price is 6,294 yuan/㎡ or 6,481 yuan/㎡, and it can be determined that the proposed unit price displayed in the online signature filing management subsystem of the new commercial housing is 8,283 yuan/㎡. To a certain extent, it can objectively reflect the value of the real estate in the XX1 community of Linyi involved in the case. Based on this, with reference to the proposed unit price of 8,283 yuan/㎡ in the online signature filing management subsystem of the newly built commercial housing, it is estimated that the value of the 13 houses in the XX1 community in Linyi involved in the case is 10923372 yuan.
Regarding the estimated value of the 6 houses in the XX2 community of Linyi involved in the case. According to the contract for the sale and purchase of a new commercial house signed on October 31, 2020 between the defendant and the buyer Wei Moumou, the unit price of Unit X of Building X in Linyi XX2 Community purchased by Wei Moumou was 16,000 yuan/㎡², and although a branch of the reconsideration applicant Bank A did not recognize the unit price of the above-mentioned real estate, it did not provide sufficient evidence to refute it. It is estimated that the total value of the 6 properties in the XX2 community in Linyi involved in the case is 17099700 yuan.
It is estimated that the total value of the 13 houses in the Linyi XX1 community and the 6 houses in the Linyi XX2 community involved in the case is 28023072 yuan, in addition, the property involved in the seizure also includes 42 underground parking spaces and 7 storage rooms in the Linyi XX2 community, and the real estate company involved in the execution has actually frozen more than 110 yuan in the X2 account of a bank B.
Based on the estimated total value of the above-mentioned seized and frozen assets involved in the case, even taking into account the possible price reduction when determining the auction reserve price, it is sufficient to ensure the realization of the reconsideration applicant's creditor's rights involved in the case. Under such circumstances, the Yinan court still froze the supervision account of the pre-sale funds of the commercial housing of the person subject to enforcement in a certain bank B, and there was an excessive seizure.
With regard to the second point of dispute, the pre-sale funds of commercial housing refer to the purchase price paid by the real estate development enterprise to the real estate development enterprise in accordance with the purchase price of the commercial housing under construction by the real estate development enterprise to the buyer, and the buyer paid the real estate development enterprise in accordance with the commercial housing sales contract. The funds for the pre-sale of commercial housing belong to the real estate development enterprise, and the people's court may take freezing measures. However, according to the third paragraph of Article 45 of the Law of People's Republic of China on the Administration of Urban Real Estate, the proceeds from the pre-sale of commercial housing must be used for the construction of relevant projects. Accordingly, according to the above provisions, the Yinan court shall enforce the law in accordance with the law on the premise of ensuring the normal progress of the construction project and the sufficient funds for the construction of the project during the enforcement process.
The Yinan People's Court (2021) Lu 1321 Zhiyi No. 53 Enforcement Ruling determined that there was no enforcement issue of exceeding the standard without reviewing and determining the value of the seized property, i.e., on the grounds that the value of the property to be preserved was pending and could not be cashed for the time being, and the available amount of deposits in the frozen bank account did not exceed the subject matter of enforcement, which was a finding of unclear facts; In the absence of a review and determination of the value of the seized property, it was determined that the freezing of the supervision account for the pre-sale funds of the commercial housing should be lifted on the grounds that there were still 70 properties and other bank account deposits that had been preserved in this case, and that the X1 account involved in the case was a commercial housing pre-sale fund supervision account, which was also a finding that the facts were unclear.
Accordingly, the seized housing, underground parking spaces, storage rooms, and frozen X2 account deposits of more than 110 yuan involved in this case are sufficient to ensure the realization of the reconsideration applicant's creditor's rights involved in the case, and the frozen X1 account is the supervision account for the pre-sale funds of commercial housing, the project has not yet been completed, and its function of ensuring the normal progress of the construction project has not yet been completed. Although the Yinan Court (2021) Lu 1321 Zhiyi No. 53 Enforcement Ruling found that some of the facts were unclear, the ruling was correct and should be upheld.
(4) Judgment results
Support the objection request of the objector, a company in Linyi, that is, to lift the seizure of the supervision account of the pre-sale funds of commercial housing.
(5) Summary of the trial
During the enforcement process, the enforcing court seized a number of properties of the person subject to enforcement, and when examining whether there was any excessive seizure, it was necessary to estimate the value of the properties involved in the case. For the value of the first-hand house, a comprehensive estimate may be made with reference to the unit price to be sold, the professional real estate app, and the transaction price of the new commercial housing sales contract displayed in the online signature filing management subsystem for the newly built commercial housing, and in combination with factors such as the order of seizure of the property involved in the case and the possible price reduction when determining the auction reserve price, so as to determine whether there is an excessive seizure.
2. Risk Warning
1. Risk of seizure exceeding the standard: As the party subject to enforcement, in the process of enforcement, there may be situations where the value of the seized property exceeds the subject of enforcement, and the value of the seized property far exceeds the value of the subject matter of enforcement.
2. The risk that the fund supervision account is difficult to freeze: the relevant laws and regulations stipulate that the funds in the supervision account are earmarked, and the freezing of the supervision account may affect the normal construction of the project and the flow of funds, and there are stricter review standards when it is sealed.
3. Extension of the enforcement process of enforcement objections: As the party applying for enforcement, improper handling of enforcement objections and reconsideration may prolong the enforcement time, increase the cost of enforcement, and affect the efficiency of debt recovery.
3. Lawyer's advice
1. Reasonably estimate the value of the seized property: Before applying for seizure, the market value of the property to be seized should be assessed through a professional appraisal agency to ensure that the value of the seized property matches the subject matter of enforcement.
2. Carefully select the objects of seizure: give priority to the selection of properties with high liquidity and easy to realize for seizure, so as to improve the efficiency of enforcement and the possibility of debt recovery.
3. Actively communicate and negotiate: actively communicate with the person subject to enforcement, seek a settlement plan, avoid prolonging the enforcement time due to enforcement objections and reconsideration procedures, and reduce unnecessary legal costs.
4. Fully prepare evidentiary materials: In the enforcement objection and reconsideration stage, as the party raising the objection, it should prepare sufficient evidentiary materials to prove that the value of the seized property exceeds the subject matter of enforcement, including but not limited to property appraisal reports, market transaction records, etc., to support its own claim.
Relevant regulations:
Article 236 of the Civil Procedure Law of the People's Republic of China (This case is the application of the 2017 amendment
Article 225 of the Civil Procedure Law of the People's Republic of China)
Article 236:Where parties or interested parties feel that enforcement violates legal provisions, they may submit a written objection to the people's court responsible for enforcement. Where parties or interested parties submit written objections, the people's courts shall review them within 15 days of receiving the written objections, and where the grounds are sustained, rule to revoke or correct them; where the reasons are not sustained, a ruling is to reject it. Where parties or interested parties are dissatisfied with the ruling, they may apply to the people's court at the level above for reconsideration within 10 days of the date on which the ruling is served.
Article 23 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts.
Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts (2020 Revision)
Article 23: After the people's court at the level above reviews an application for reconsideration of an objection ruling, it shall handle it in accordance with the following distinct circumstances:
(1) Where the facts ascertained in the objection ruling are clear, the law is correctly applied, and the result should be upheld, a ruling is made to reject the application for reconsideration and uphold the objection ruling;
(2) Where the facts identified in the objection ruling are erroneous, or the application of law is erroneous, and the outcome should be corrected, a ruling is to be made to revoke or modify the objection ruling;
(3) Where the basic facts found in the objection ruling are unclear or the evidence is insufficient, rule to revoke the objection ruling, remand the case that made the ruling for new review, or make a corresponding ruling after clarifying the facts;
(4) Where the objection ruling omits an objection request or there are other serious violations of legally-prescribed procedures, a ruling is made to revoke the objection ruling and remand to the people's court that made the ruling for new review;
(5) Where the objection ruling erroneously applies the provisions of article 225 of the Civil Procedure Law to review and handle objections that should be reviewed and handled as provided for in article 227 of the Civil Procedure Law, a ruling is made to revoke the objection ruling and remand to the people's court that made the ruling to make a new ruling.
Except in the case of remanding for re-examination or re-making of a ruling in accordance with items 3, 4 or 5 of the first paragraph of this article, where a ruling is made to revoke or modify an objection ruling and the enforcement act can be revoked or modified, the enforcement act upheld by the ruling shall be revoked or modified at the same time.
After a people's court makes a ruling on a case remanded for reconsideration, where the parties or interested parties apply for reconsideration, the people's court at the level above must not remand for reconsideration again after reconsideration.
[Construction Engineering Legal Eye] is a legal column focusing on in-depth analysis of construction engineering practice, selected by professional lawyers and construction engineering execution cases, combined with practical experience, to take you to analyze every link in the field of construction engineering from a legal perspective, aiming to provide you with professional legal analysis insights and risk response measures.
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