legal provisions on property preservation and unsealing
the legal basis for property preservation is articles 92 to 96 and 99 of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the Civil Procedure Law) and articles 31, 32 and 98 to 15 of the Supreme People's Court's opinions on several issues concerning the application of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the opinions). Articles 18 to 11, the Supreme People's Court's provisions on the strict implementation of the Civil Procedure Law of the People's Republic of China in economic trials (hereinafter referred to as "some provisions"), Articles 12 to 15 and 19, and the Supreme People's Court's relevant judicial interpretations are the legal basis for property preservation measures.
(I) Property preservation before litigation
Article 93 of the Civil Procedure Law stipulates that if an interested party does not apply for property preservation immediately due to an emergency, it will cause irreparable damage to his legitimate rights and interests, and he may apply to the people's court for property preservation measures before bringing a lawsuit. The applicant shall provide a guarantee. If no guarantee is provided, the application shall be rejected.
the people's court should cancel the stipulation in article 31 of the opinions on property preservation: the parties concerned shall apply to the people's court where the property is located for property preservation before litigation. After the people's court adopts pre-litigation property preservation, if the applicant files a lawsuit, he may file a lawsuit with the people's court that adopted pre-litigation property preservation or other people's courts with jurisdiction.
article 32 of the opinions stipulates that if a party fails to file a lawsuit within the statutory period after applying for pre-litigation property preservation, thus causing property losses to the respondent and causing a lawsuit, it shall be under the jurisdiction of the people's court that took the property preservation measures.
(II) Preservation of Litigation Property
Article 92 of the Civil Procedure Law stipulates that the people's court may, upon the application of the other party, make a ruling on the preservation of property in a case where the judgment can not be executed or is difficult to be executed due to the behavior of one party or other reasons; If the parties fail to file an application, the people's court may also order the adoption of property preservation measures when necessary.
(III) Scope, measures and application of property preservation
Article 94 of the Civil Procedure Law stipulates that property preservation is limited to the scope of the request or the property related to this case. Property preservation shall be sealed up, detained, frozen or other methods prescribed by law. After freezing property, the people's court shall immediately notify the person whose property has been frozen. If the property has been sealed up or frozen, it shall not be sealed up or frozen again.
Article 14 of Several Provisions stipulates that when the people's court adopts property preservation measures, the scope of preservation shall be limited to the disputed property of the parties or the property of the defendant, and no property preservation measures shall be taken for the property of outsiders, and generally no property preservation measures shall be taken for the property related to the case obtained by outsiders in good faith; If the respondent provides the corresponding amount and there is property available for execution as security, the people's court that took the measures shall promptly cancel the property preservation.
article 99 of the opinions stipulates that when the people's court takes preservation measures for seasonal commodities, fresh, perishable and other articles that are not suitable for long-term preservation, it may order the parties concerned to deal with them in time, and the people's court shall keep the price; When necessary, the people's court may sell it and keep the price.
article 1 of the opinions stipulates that when the people's court takes measures to seal up or detain property in property preservation, it shall properly keep the sealed-up or detained property. The parties concerned, the relevant units or individuals in charge of custody and the people's court shall not use the property.
article 11 of the opinions stipulates that the people's court may adopt the property preservation measures of seizing the relevant property right certificates and notifying the relevant property right registration departments not to handle the transfer procedures of the property; When necessary, the property may also be sealed up or detained.
Article 15 of Several Provisions stipulates that the people's court shall generally not take the preservation measures of sealing up or freezing an enterprise as a legal person with repayment ability. If the measures of sealing up and freezing have been taken, if the enterprise as a legal person provides an enforceable property guarantee or can be preserved by other means, it shall be unsealed and unfrozen in time.
article 12 of the opinions stipulates that the people's court may take property preservation measures for the mortgaged property and the retained property, but the mortgagee and the lien holder have the priority to be compensated.
article 14 of the opinions stipulates that the people's court may take property preservation measures to limit the debtor's withdrawal and notify the relevant units to assist in the execution.
article 15 of the opinions stipulates that: if the debtor's property can't meet the preservation request, but there is a creditor's right due to a third party, the people's court may rule that the third party may not pay off the debtor in this case according to the creditor's application. If the third party demands payment, the people's court shall deposit the property or price.
(IV) Application and guarantee for property preservation
Article 98 of the Opinions: In accordance with Articles 92 and 93 of the Civil Procedure Law, if the people's court orders the applicant to provide guarantee when taking pre-litigation property preservation and litigation property preservation, the amount of guarantee provided shall be equivalent to the amount requested for preservation.
Article 12 of Several Provisions stipulates that when a people's court adopts pre-litigation property preservation, the applicant must provide a guarantee equivalent to the amount requested for preservation. The conditions of guarantee shall be in accordance with the law; Where there are no provisions in the law, the people's court shall examine and decide.
Article 13 of Several Provisions stipulates that when a people's court adopts litigation preservation measures for property, the parties shall generally submit an application that meets the statutory conditions. Only when the disputed property is in danger of being damaged or lost, or there is evidence that the respondent may conceal, transfer or sell its property, the people's court may decide to take property preservation measures ex officio.
article 13 of the opinions stipulates that in a case where a party appeals against the judgment of first instance, before the people's court of second instance receives the submitted case, if the party has transferred, concealed, sold or destroyed the property, the people's court of first instance shall take it upon the application of the party or ex officio. The ruling on property preservation made by the people's court of first instance shall be submitted to the people's court of second instance in a timely manner.
article 95 of the civil procedure law stipulates that if the respondent provides a guarantee, the people's court shall cancel the property preservation.
(V) Compensation for errors in applying for property preservation
Article 96 of the Civil Procedure Law stipulates that if there is an error in the application, the applicant shall compensate the respondent for the losses caused by property preservation.
article 121 of the general principles of the civil law stipulates that a state organ or a functionary of a state organ who infringes upon the lawful rights and interests of a citizen or a legal person in performing his duties and causes damage shall bear civil liability.
article 31 of the state compensation law of the people's Republic of China stipulates that if the people's court illegally takes preservation measures in the course of civil proceedings, the procedures for the claimant to claim compensation shall be governed by the provisions of the criminal compensation procedure of the state compensation law of the people's Republic of China.
Article 19 of Several Provisions stipulates that the applicant shall compensate for the losses caused by the wrong application; If losses are caused by the people's court's mistake in taking protective measures ex officio, the people's court shall compensate according to law.
(VI) Validity of the ruling on property preservation
Article 19 of the Opinions stipulates that the validity of the ruling on property preservation in litigation shall generally be maintained until the effective legal document is executed. In the course of litigation, if it is necessary to lift the preservation measures, the people's court shall make a timely ruling to lift the preservation measures. For the ruling of pre-litigation preservation, if the interested party does not bring a lawsuit within the legal time, the ruling of property preservation will lose its validity when the people's court cancels the property preservation.
article 99 of the civil procedure law stipulates that if a party refuses to accept the ruling of property preservation or prior execution, it may apply for reconsideration once. The execution of the ruling shall not be suspended during the reconsideration period.
article 18 of the opinions stipulates that: after the people's court has ruled to take the preservation measures, no unit may lift the preservation measures within the property preservation period, except that the people's court that made the preservation ruling voluntarily cancels them and the people's court at a higher level decides to cancel them.
article 11 of the opinions stipulates that the people's court shall promptly examine the application for reconsideration filed by a party who refuses to accept the ruling of property preservation and prior execution. If the ruling is correct, the party concerned shall be notified to reject the application; If the ruling is improper, make a new ruling to change or cancel the original ruling. The first paragraph of Article 19 of Several Provisions stipulates that if the president of the people's court against whom the complaint is made or the people's court at a higher level finds that there is a mistake in taking property preservation measures, it shall immediately correct it according to the procedure of trial supervision.
Extended reading of the law on property preservation and unsealing
I. the Supreme People's Court's Law on the Application of < Civil Procedure Law of the People's Republic of China >: Opinions on Several Issues
(Fa Fa (92) No.22)
18. After the people's court decides to take property preservation measures, no unit may lift the preservation measures within the property preservation period, except that the people's court that made the preservation decision voluntarily cancels them and the people's court at a higher level decides to cancel them.
19. Generally, the effectiveness of the ruling on property preservation in litigation shall be maintained until the effective legal document is executed. In the course of litigation, if it is necessary to lift the preservation measures, the people's court shall make a timely ruling to lift the preservation measures.
note:? Articles 136, 25, 26, 24 to 253 and 299? On December 24, 28, the document No.15 [28] was abolished.
II. Provisions of the Supreme People's Court on the Attachment, Seizure and Freezing of Property in Civil Enforcement by People's Courts
(Fa Shi [24] No.15)
Article 4 Where property preservation measures are taken before litigation, during litigation and arbitration, they will be automatically converted into attachment, seizure and freezing measures under execution after entering the execution procedure, and the attachment and seizure in Article 29 of these Provisions shall apply.
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 immovable property and freezing other property rights shall not exceed two years. Except as otherwise provided by laws and judicial interpretations.
if the executor applies for an extension of the time limit, the people's court shall go through the formalities for further sealing up, distraining and freezing before the expiration of the time limit for sealing up, distraining and freezing, and the time limit for further sealing up, distraining and freezing shall not exceed half of the time limit specified in the preceding paragraph.
article 3 if the time limit for sealing up, distraining and freezing expires and the people's court fails to go through the extension formalities, the effectiveness of sealing up, distraining and freezing shall be extinguished.
if the seized, detained or frozen property has been auctioned, sold or paid off, the effectiveness of the seizure, seizure and freezing will be extinguished.
article 32 these provisions shall apply to the execution of property preservation rulings and early execution rulings.
Litigation preservation means that the people's court can make a ruling on property preservation on the application of both parties in cases where the judgment can not be executed or is difficult to be executed due to the behavior of one party or other reasons. However, there is no provision for the time limit for litigation preservation, whether it is the civil procedure law before the amendment or the revised civil procedure law. Only article 19 of the Supreme People's Court's opinions on "Civil Action" stipulates that the effectiveness of the property preservation ruling in litigation should generally be maintained until the effective legal documents are executed. According to the opinions, there is no fixed time limit for the effectiveness of the preservation ruling, and its time limit is synchronized with the litigation until the effective legal documents are executed. However, Article 4 of the Provisions on Seizure, Seizure and Freezing of Property in Civil Execution, which came into effect on January 1, 25, stipulates that if property preservation measures are taken before litigation, during litigation and arbitration, they will be automatically converted into seizure, seizure and freezing measures in execution after entering the execution procedure, and the provisions of Article 29 of these Provisions on the time limit for seizure, seizure and freezing shall apply. In this way, the time limit for property preservation in litigation is no longer synchronized with litigation, but is extended to execution. Article 29 stipulates that 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 immovable property and freezing other property rights shall not exceed two years. Except as otherwise provided by laws and judicial interpretations. That is to say, the seizure, seizure and freezing in the process of litigation preservation or execution shall not exceed the time limit of this article. If it cannot be concluded or executed within the time limit stipulated in Article 29, the parties may apply to the court for an extension in order to realize their legitimate rights and interests. If the parties do not apply for an extension and the people's court fails to go through the extension procedures, the effectiveness of seizure, seizure and freezing will be destroyed. Article 32 of the Supreme People's Court's Provisions on the Seal-up, Seizure and Freezing of Property in Civil Execution of People's Courts also stipulates that these Provisions shall apply to the execution of property preservation rulings and pre-execution rulings. Both litigation property preservation uses the time limit of six months, one year and two years. Because the opinions in the Civil Procedure are in conflict with the judicial interpretation of the Supreme Court later, according to the principle that the latter law is superior to the former law, the latter law is used in the time limit of litigation property preservation. In addition, Article 33 of the Provisions of the Supreme People's Court on the Sealing-up, Seizure and Freezing of Property in Civil Execution of People's Courts stipulates that the previous judicial interpretation is inconsistent with this interpretation. Therefore, the preservation of litigation property should use the provisions of article 29 of the latter law.
III. Notice of the Supreme People's Court, Ministry of Land and Resources and Ministry of Construction on Several Issues Concerning Standardizing the Execution of People's Courts and the Assistance of Land, Resources and Real Estate Management Departments
(Fa Fa Fa [24] No.5)
In order to ensure the timely execution of effective judgments, rulings and other effective legal documents of people's courts according to law and protect the legitimate rights and interests of the parties, According to the Civil Procedure Law of the People's Republic of China, the Law of the People's Republic of China on the Administration of Land and Land, the Law of the People's Republic of China on the Administration of Urban Real Estate, and other relevant laws and regulations, the relevant issues concerning regulating the execution of the people's courts and the assistance of the land resources and real estate management departments are hereby notified as follows:
XI. The time limit for the people's courts to seal up land use rights and houses shall not exceed two years. At the expiration of the time limit, the seal can be renewed once. At the time of renewal, the seal-up ruling and the notice of assistance in execution shall be re-made, and the period of renewal shall not exceed one year. If it is really necessary to renew the seal under special circumstances, it shall be approved by the higher people's court, and the time limit for each renewal shall not exceed one year.
if the people's court fails to go through the formalities to continue the seizure upon the expiration of the seizure period, the effect of the seizure will be extinguished.
twenty-eight, the people's court for property preservation and prior execution of this notice.
3. this notice shall be implemented as of March 1, 24.
IV. Interpretation of the Supreme People's Court on People's Courts' Property Preservation of Registered Trademark Rights
Fa Shi [21] No.1
In order to correctly implement the property preservation measures for registered trademark rights and avoid repeated preservation, the issues related to the property preservation of registered trademark rights by people's courts are explained as follows:
Article 1 When people's courts take property preservation measures according to the relevant provisions of the Civil Procedure Law, it is necessary to preserve registered trademark rights.