(Picture from the Internet)
There is no property in the name of the person subject to enforcement for enforcement
Can a third party be brought in as an enforcement guarantee?
What is the legal effect of enforcing a guarantee?
PART.01
Basic facts of the case
A case of a dispute over a sales contract between an agricultural technology company in Guangxi, the applicant for execution, and Wei, the person subject to enforcement. In June 2021, an agricultural technology company in Guangxi signed a contract with Wei on planting fruit trees and providing technical guidance, and in June 2023, after an agricultural technology company in Guangxi completed its obligations under the contract, Wei still had 300,000 yuan in the balance unpaid, and after repeated recovery to no avail. In December 2023, an agricultural technology company in Guangxi sued Wei to the court, and after the first and second trials, the court ruled that Wei needed to pay 300,000 yuan to an agricultural technology company in Guangxi.
PART.02
Judge execution
After entering the enforcement procedure, the enforcement judge found that the person subject to enforcement, Wei, had a lot of debts and had no property available for enforcement for the time being, and the orchard he planted had also been transferred, and the enforcement was once deadlocked.
The presiding judge repeatedly explained the law to Wei and persuaded him to take the initiative to fulfill his repayment obligations, and informed him that he could find someone to guarantee his performance. After many times of communication, Wei's friend Li said that he could be a guarantor. Under the organization of the enforcement judge, the applicant signed an enforcement settlement agreement with Wei and Li, and Li made a written commitment to enforce the guarantee, using all the property under his name as security. After Li was listed as the guarantor of the case in accordance with the law, the court conducted a comprehensive investigation and control of the property under his name. In the end, Wei took the initiative to raise funds to pay the outstanding amount in a lump sum.
PART.03 Judge's Statement
What is an Enforcement Guarantee?
Article 242 of the Civil Procedure Law of the People's Republic of China stipulates that if the person subject to enforcement provides a guarantee to the people's court during enforcement, and with the consent of the applicant for enforcement, the people's court may decide on the suspension of enforcement and the period for which enforcement is suspended. If the person subject to enforcement still fails to perform within the time limit, the people's court has the right to enforce the property of the person subject to enforcement or the property of the guarantor.
What is the legal effect of enforcing a guarantee?
If an enforcement guarantee is provided, but the person subject to enforcement still fails to perform its obligations after the expiration of the suspension period, the following consequences will occur:
(1) Resumption of enforcement upon the application of the person applying for enforcement.
(2) Directly adjudicating the enforcement of the secured property or the property of the guarantor.
If the provision of enforcement guarantee fails to materialize, can the enforcement guarantor be added as the person subject to enforcement?
According to the Provisions of the Supreme People's Court on Several Issues Concerning Enforcement Guarantees, if the person subject to enforcement still fails to perform its obligations after the expiration of the period for suspension of enforcement, or if the guarantor transfers, conceals, sells, or damages the secured property during the suspension period, the people's court may resume enforcement upon the application of the person applying for enforcement, and directly rule to enforce the secured property or the property of the guarantor, and shall not change or add the guarantor to the person subject to enforcement.
In the enforcement procedure, if a third party provides an enforcement guarantee, does it need to bear joint and several liability for all debts borne by the person subject to enforcement?
According to the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Guarantees, a third party providing a guarantee only needs to bear the guarantee liability for the promised guarantee matters within the scope of the guarantee and in accordance with the promised guarantee in accordance with the specific content of the guarantee letter issued by the third party or the guarantee clause signed.
In this case, the third party, Mr. Li, submitted a letter of guarantee, which met the conditions for constituting an enforcement guarantee after review, and was enforced by way of direct ruling. So how to enforce the law by changing or adding the person subject to enforcement? Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Alteration and Addition of Parties in Civil Enforcement stipulates that in the course of enforcement, if a third party undertakes in writing to the enforcing court to voluntarily perform the debts determined in the effective legal documents on behalf of the person subject to enforcement, and the applicant for enforcement applies to change or add the third party as the person subject to enforcement, and bears responsibility within the scope of the commitment, the people's court shall support it. According to the above provisions, in the course of enforcement, the third party shall clearly express its willingness to perform on behalf of the debtor, that is, if the debt is joined, the applicant for enforcement can apply for enforcement by applying for the addition of the third party as the person subject to enforcement.
END
Source: Guangxi Higher People's Court
Author: Mok Zhiwen
Editor: Gui Xiaowen
Proofreading: Yu Yue
Preliminary review: Wu Bin
Re-examiner: Geng Boying
Final review: Zhuo Xiaoyang
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