Concepts of seizure, seizure and freezing
The so-called seizure means that the administrative subject seals the property of the administrative counterpart and forcibly seals it up. During the period of seizure, the use of property rights is restricted, and the seized person may not dispose of his property. Seizure refers to the compulsory measures taken by the administrative subject to restrict the administrative counterpart from continuing to possess and dispose of its property. The difference between seizure and seizure is that the seized property is generally something that is not easy to move or needs to be transferred to the office of the administrative organ, that is, it stays in place and waits for seizure; The seized property is generally movable and needs to be taken from the administrative counterpart, or the administrative subject is detained on the spot during law enforcement inspection and supervision. Freezing: a compulsory measure to restrict the flow of property involved in the case in order to prevent the illegal actor from transferring funds or withdrawing funds.
Relationship between seizure and detention
In the civil enforcement laws of France, Germany and Japan, the enforcement measures that restrict the debtor from exercising the right to dispose of property are collectively referred to as? Seizure? In Taiwan Province Province, China, the enforcement measures that restrict the debtor from exercising the right to dispose of his movable or immovable property are called? Sealed? What is the enforcement measure that restricts the debtor from exercising other property disposal rights? Seizure? . However, in the theoretical and practical circles of Taiwan Province Province, Sealed? With what? Seizure? It is often universal. For example, what does Professor Yang and Ling define as epilepsy? Seizure, also known as seizure, is an execution behavior that preserves the realization of the creditor's rights contained in the name of execution and limits the debtor's dispersion of the execution target? .
In Chinese mainland, theorists generally believe that there is a difference between seizures and seizures. For example:? Seizure is a restrictive measure to seal up or seal up real estate or large, immovable property, and prohibit the person subjected to execution from moving or disposing of it? ,? Seizure refers to the restrictive measures of seizing small or large property that is easy to move and transporting it to a people's court or other places for safekeeping, so that the person subjected to execution cannot possess, use and dispose of it? . There is also freezing, that is, compulsory measures taken against the deposits, assets and creditor's rights of the person subjected to execution. It can be seen that according to mainland scholars, seizure, seizure and freezing are different concepts. The difference between seizure and seizure is mainly whether the location of the subject matter has moved. The seized property generally stays in the same place (which is usually called local seizure), while the seized property generally needs to be transferred (also called remote seizure). However, in China's practice, there are also cases where these two compulsory measures are mixed. What measures are called if vehicles, machinery and equipment are not sealed, used or disposed of? Live seals? Or? Hook? There is no difference between the two. Even freezing bank accounts is also called seizure, especially for the parties concerned. In maritime cases, when it comes to taking compulsory measures to prohibit the ship from moving, it is actually only called? Seizure? There is no such thing as a seizure.
Relativity of Epilepsy Effect
The relativity of attachment effect means that the debtor's disposition behavior is not effective for the creditors who have been attached, but is still effective for other creditors who have not participated in the distribution. The relativity of seizure effect is closely related to the purpose of seizure. It is generally believed that sealing up as a monetary creditor's right is to ensure the monetary value in the execution procedure, so the debtor must be deprived of the right to dispose of the execution object. However, the effect of prohibition of disposition is only to ensure that the rights of enforcement creditors are satisfied by the necessary monetary value in the enforcement procedure, so there is no reason to deny the debtor's freedom of disposition beyond this purpose.
Specific meaning of relativity of epileptic effect
1. Theory of individual relative effectiveness
According to this view, the purpose of seizure is to protect the rights of the creditor and realize the monetary value of the subject matter. Therefore, it should be understood that this effect should be effective within the necessary limits of its purpose, that is, the execution of the debtor's punishment after seizure is invalid only for the distrained creditor and completely effective for other creditors. In other words, the debtor's punishment behavior is still valid between the debtor and the third party, but it is not allowed to confront the creditor. That is to say, the creditor can claim that his punishment behavior is invalid to exclude the effectiveness of his punishment behavior, but if the creditor tolerates it, his punishment behavior is still valid.
2. Theory of relative effectiveness of procedures
This view holds that the seizure behavior implemented by the court according to the application of the enforcement creditor has legal effect on all other creditors involved in the enforcement procedure. Therefore, as long as the enforcement procedure initiated due to seizure lasts, the punishment actions implemented by creditors after seizure can be directed not only at the enforcement creditors, but also at all creditors who participated in the procedure, and only when the procedure is cancelled or the application for enforcement is withdrawn will they be effective. That is to say, during the duration of the attachment effect, the debtor's disposition behavior has no legal effect on all enforcement creditors. Therefore, according to this theory, even if the transfer occurs after the seizure, as long as the execution procedure continues to exist, other creditors can make distribution requests to participate in the distribution.
The Japanese Civil Enforcement Law and China's Taiwan Province District Enforcement Law both take the position of procedural relative effect on the relativity of seizure effect in legislation. (7) There are three reasons for the theory of relative effectiveness of Japanese civil execution procedure: first, the seizure measure is initiated on the basis of one creditor's application, and other creditors can also participate in the procedure and get equal repayment, which can guarantee the egalitarian distribution principle stipulated by law; Second, in practice, many people who are executed have little or no assets. Instead of giving the debtor the freedom to dispose of the remaining property, it is better to give priority to protecting the equal liquidation interests of other creditors. Therefore, as long as the auction procedure based on the debtor's previous residual value exists, even if the debtor's disposition is denied, it is a last resort. In addition, as long as the seizure has been announced, it cannot be said that the third party has been adversely affected by denying the debtor's disciplinary action; Thirdly, if the theory of individual relative effectiveness is adopted, it will be difficult to distribute the security right after seizure. The theory of relative effectiveness of procedure can avoid this problem in technical treatment.
About freezing objects
For what? Freeze? Theoretical circles mainly have different understandings of frozen objects. Some people think? Freezing is a restrictive and compulsory measure for the bank deposits of the person subjected to execution, such as land use right, patent right, trademark right, telephone use right, stock right, dividend and bonus. (8) Its object is other property rights other than bank deposits. Some people think? Freezing refers to an enforcement measure in which the people's court issues a notice of assistance in execution to financial institutions, and the person subjected to execution may not withdraw or transfer deposits within a certain period of time? (9), its object only refers to bank deposits. There is also a view that? Freezing the deposits, stocks, futures and other property of the person subjected to execution? The object contains the above two situations.
Use of seized property
Article 43 of the Implementation Regulations stipulates that the custodian shall not use the seized property. The trustee here refers to the people's court, the entrusted third party and the application executor other than the person subjected to execution. That is to say, the people's court, the entrusted third party and the applicant executor shall not use the sealed-up articles in their custody. There are different opinions on whether the person subjected to execution can continue to use the seized objects in his custody: 1. Certainly, the proceeds can continue to be used. Because the purpose of seizure is to prohibit the person subjected to execution from disposing of the property, the person subjected to execution does not lose the right to use the proceeds from seizure of the property. 2. No, the proceeds shall not be used. The use of seized items will definitely reduce the value of property, especially movable property, and harm the interests of the applicant. 3. In reconciliation, the object of seizure shall not be used in principle, but may be used with the permission of the enforcement court. If it is used without damaging its transaction value, it should be allowed to be used, especially real estate, which is of great value and generally will not be damaged by use. Usually, the debtor is forbidden to dispose of it in order to achieve the purpose of sealing up. If the use is prohibited, it will harm the interests of the debtor.
Japanese academic and practical circles believe that sealed articles should not be used in principle, and only when they are used without reducing their special value, or when they are used according to normal practices without reducing their significant value, are exceptions allowed. China Taiwan Province Province has adopted it in practice? Negative theory? 1996 when the legislation was revised, it was stipulated that when the debtor was the custodian of the sealed object, it was allowed to use it within the scope of not damaging the value of the sealed object. The "Attachment Regulations" adopted the third viewpoint, stipulating that if the continued use of the attached property has no significant impact on its value, the person subjected to execution may be allowed to continue to use it.
Time limit for sealing up, distraining and freezing
1, "Provisions of the Supreme People's Court on the Seal-up, Seizure and Freezing of Property in Civil Execution by People's Courts"
Article 29 The time limit for the people's court to freeze the bank deposits and other funds of the person subjected to execution shall not exceed six months, the time limit for sealing up or distraining movable property shall not exceed one year, and the time limit for sealing up or distraining immovable property and other property rights shall not exceed two years. Except as otherwise provided by laws and judicial interpretations.
If the person subjected to execution applies for an extension of the time limit, the people's court shall go through the formalities of sealing up, distraining and freezing before the expiration of the time limit for sealing up, distraining and freezing, and the extension period shall not exceed half of the time limit specified in the preceding paragraph.
2. Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Freezing and Auction of State-owned Shares and Social Legal Person Shares of Listed Companies shall not exceed one year.
3. Interpretation of the Supreme People's Court on Property Preservation of Registered Trademarks by People's Courts Article 2 The preservation period of registered trademarks shall not exceed six months at a time, counting from the date when the Trademark Office receives the notice of assistance in execution. Where it is still necessary to continue to take preservation measures for the registered trademark right, the people's court shall re-issue a notice of assistance in execution to the Trademark Office before the expiration of the preservation period, requesting continued preservation. Otherwise, it is deemed that the property preservation of the registered trademark right is automatically lifted.
Article 3 The people's court may not preserve the registered trademark rights that have been preserved repeatedly.
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