1. Overview of execution procedures

(1) Principles of execution

Note: execution is based on the principle of effective legal documents and the principle of limited execution subject matter, that is, execution It can only target the behavior and property of the person subject to execution, but not the person of the person subject to execution.

(2) General provisions on enforcement

1. Enforcement jurisdiction

Article 201: The effective judgment, ruling, and mediation document produced by the People’s Court shall be governed by the first The execution shall be carried out by the People's Court of first instance or the People's Court at the same level as the People's Court of first instance where the property subject to execution is located. Pay attention to the enforcement issues of the people's courts.

Execution of arbitration awards and notarized debt documents that are legally enforceable by the notary office.

2. Objections to execution

(1) Objections to execution by parties and interested parties

Article 202: Parties and interested parties believe that execution violates If provided by law, written objections may be submitted to the people's court responsible for enforcement. If a party or interested party raises a written objection, the people's court shall review it within 15 days from the date of receipt of the written objection. If the reason is established, it shall rule to revoke or correct it; if the reason is not established, it shall rule to reject it. If the parties or interested parties are dissatisfied with the ruling, they may apply for reconsideration to the people's court at the next higher level within ten days from the date of delivery of the ruling.

Upgrading execution or ordering execution:

Article 203: If the people’s court fails to execute the application for more than six months from the date of receipt of the execution application, the person applying for execution may go up to the next level. The People's Court applies for execution. After review, the people's court at the next higher level may order the original people's court to implement within a certain period of time, or may decide to have this court implement the case or instruct another people's court to implement it.

(2) Objections to the subject matter of execution by persons outside the case

Article 204: During the execution process, if a person outside the case raises a written objection to the subject matter of execution, the People’s Court shall issue the objection in writing upon receipt of the written objection. It will be reviewed within 15 days from the date of review. If the reasons are established, the execution of the subject matter shall be ruled to be suspended; if the reasons are not established, the execution shall be ruled to be rejected. If a party outside the case is dissatisfied with the ruling and believes that the original judgment or ruling is wrong, the case shall be handled in accordance with the trial supervision procedures; if it has nothing to do with the original judgment or ruling, a lawsuit may be filed in the People's Court within 15 days from the date of service of the ruling.

3. Execution of reconciliation

First, it is different from mediation

Second, the content and form of reconciliation (Article 86 of the Implementation Regulations): During execution, Both parties can voluntarily reach a settlement agreement and change the subject of performance obligations, the subject matter and its amount, the performance period and the method of performance specified in the effective legal document. ?

Third, legal effect: The completion of conscious performance has the effect of terminating the execution procedure. If the parties fail to perform or do not fully perform, the right holder should apply to resume the execution of the original effective legal document.

4. Execution Responsibilities

(1) Article 76 of the Implementation Regulations: Privately-owned Enterprises without Personal Qualifications

(2) Article 77 of the Implementation Regulations: Partnership Organizations Or a partnership and joint venture

(3) Article 78 of the Implementing Regulations: Separation of corporate legal persons

(4) Article 79 of the Implementing Regulations: Branches

(5) Article 80 of the Implementation Regulations: Issues of Founding Units

(6) Article 81 of the Implementation Regulations: Cancellation, cancellation or closure of legal persons

5. Execution of guarantees

6. Execution Reversal

(1) Exceptions in trademark infringement.

Article 36 of the "Regulations for the Implementation of the Trademark Law" stipulates that for a registered trademark canceled in accordance with Article 41 of the "Trademark Law", the exclusive right to use the trademark shall be deemed to have ceased to exist from the beginning. Decisions or rulings on the cancellation of registered trademarks, judgments and rulings on trademark infringement cases made and executed by the People's Court before cancellation, decisions on handling trademark infringement cases made and executed by the industrial and commercial administration departments, and trademark transfers that have been executed Or a license contract does not have retroactive effect; however, compensation shall be provided for losses caused to others due to the bad faith of the trademark registrant.

(2) Exceptions in patent infringement

Article 47 of the "Patent Law" also stipulates that a patent right declared invalid shall be deemed not to have existed from the beginning.

The decision to declare the patent right invalid, the judgment or ruling on patent infringement made by the People's Court and executed before the declaration of the invalidity of the patent right, the decision to resolve the patent infringement dispute that has been executed or enforced, and the executed patent license contract and patent The rights transfer contract has no retroactive effect. However, losses caused to others due to the bad faith of the patentee shall be compensated.

2. Start of execution

(1) Application for execution

Period of application for execution:

Article 215: The period for application for execution is two Year. When applying for the suspension or interruption of the statute of limitations, the provisions of the law on the suspension or interruption of the statute of limitations shall apply.

The period specified in the preceding paragraph shall be calculated from the last day of the performance period specified in the legal document; if the legal document stipulates performance in installments, it shall be calculated from the last day of each performance period specified in the legal document; If a performance period is specified, it shall be calculated from the date when the legal document takes effect.

(2) Transfer for execution:

Article 19 of the Enforcement Regulations: Cases of recovery of alimony, support, and child support; civil sanction decisions, criminal incidental civil judgments, and rulings .

III. Execution Measures

(1) The person subject to execution reports the property status

Article 217: The person subject to execution fails to perform the obligations specified in the legal document in accordance with the execution notice , should report the current and current property status as well as one year prior to the date of receipt of the enforcement notice. If the person subject to execution refuses to report or makes a false report, the people's court may fine or detain the person subject to execution or his legal agent, the principal person in charge of the relevant unit or the directly responsible person according to the seriousness of the case.

(2) Enforcement measures for monetary claims

1. Inquiry, freezing, and transfer of deposits of the person subject to execution

(1) The person subject to execution is a financial institution Implementation: Article 34 of the Implementation Regulations

(2) Responsibility issues of financial institutions. Article 33 of the Enforcement Regulations

2. Withholding and withdrawing the income of the person subject to execution

3. Seizing, detaining, freezing, auctioning and selling off the property of the person subject to execution

(1) Provisions on sealing, detaining, and freezing property

First, the scope of sealing, detaining, and freezing property: Articles 2 and 5

Second, the order of custody of property : Article 12 stipulates: If the sealed or seized property is not suitable for safekeeping by the people's court, the people's court may designate the person subject to execution to be responsible for safekeeping; if it is not suitable for the person subject to execution to be kept, it may entrust a third party or the person applying for execution to keep it for safekeeping. If the continued use of the property designated by the people's court to be kept by the person subject to execution has no significant impact on the value of the property, the person subject to execution may be allowed to continue to use it; if it is kept by the people's court or entrusted to a third party or an applicant for execution, the custodian shall not use.

Third, the effect of seizure and seizure: The provisions of Article 22: The effect of seizure and seizure extends to the accessories and natural fruits of the thing seized or seized. Article 23 stipulates: The effect of sealing up the above-ground buildings extends to the land use rights within the scope of use of the above-ground buildings. The effect of sealing up the land-use rights extends to the above-ground buildings. However, the land-use rights and the ownership of the above-ground buildings belong to the owner separately. Except between the executor and others. If the registration authority for above-ground buildings and land use rights is not the same authority, seal-up registration shall be handled separately.

Fourth, waiting list for sealing, detaining and freezing: Article 28 stipulates: For property that has been sealed, detained, or frozen by a people's court, other people's courts may make a waiting list for seizure, seizure, or freezing. If the seal, seizure, or freeze is lifted, the seizure, seizure, or freeze that was registered earlier will automatically take effect.

Fifth, the time limit for sealing, detaining and freezing: Article 29 stipulates that the time limit for the people's court to freeze the bank deposits and other funds of the person subject to execution shall not exceed 6 months, and the time limit for sealing up and detaining movable property shall not exceed 6 months. The period for sealing up real estate and freezing other property rights shall not exceed 1 year. Unless otherwise provided by law or judicial interpretation. If the person applying for execution applies for an extension of the time limit, the people's court shall handle the procedures for renewal of the seal, seizure, or freeze before the expiration of the seal, seizure, or freezing period, and the renewal period shall not exceed one-half of the period specified in the preceding paragraph.

(2) Provisions on the auction and sale of property

First, the determination of the auction agency: Article 7 stipulates: The auction agency shall be reviewed and determined by the People's Court after consensus reached by the parties; consultation If it fails, the auction agency shall be determined randomly from the list of auction agencies determined by the people's court responsible for enforcement or the people's court where the property of the person subject to execution is located. If both parties apply to determine the auction agency through public bidding, the people's court shall allow it.

Second, determination of the sale agency: Article 5: The method is the same as above

4. Search

Pay attention to the dean’s issuance of a search warrant

5. Enforcement measures for special subjects

(1) Enforcement of intellectual property rights; 50 enforcement regulations

(2) Enforcement of stocks: 52 enforcement regulations

(3) Execution of delivery of property and completion of acts

Note: Execution of acts such as refusal to perform apology and apology: the infringer refuses to execute the effective judgment, restores the reputation of the other party, and eliminates the impact , the people's court may publish the main content of the judgment and relevant circumstances through announcements, newspapers, etc., at the expense of the person subject to execution, and may, in accordance with the provisions of Article 102, Item 6, of the Civil Procedure Law, deem the judgment to be public. To hinder civil proceedings.

(4) Forcing the person subject to execution to move out of the house or vacate the land

Note: The dean shall issue an announcement and set a time limit for the person subject to execution to move out of the house or vacate the land

(5) Handle the transfer procedures for property rights certificates

(6) Pay debt interest and delayed performance fees during the period of delayed performance

For monetary debts, if the obligor fails to perform his obligations overdue, the amount shall be doubled Debt interest during the period of delayed performance shall be paid; for non-monetary debts, delayed performance fees shall be paid.

(7) Other special enforcement measures

1. Enforcement of the debtor’s due claims

Note:

(1 ) application; that is, if the person subject to execution cannot pay off the due debt, but has due creditor's rights against a third party, the People's Court may take enforcement measures against the third party's property based on the application of the applicant or the application of the person subject to execution.

(2) Objections and the court’s handling; after receiving the performance notice, if the third party has an objection to the performance notice, the objection should generally be submitted in writing. If it is submitted orally, the executor should record the objection The transcript shall be signed or stamped by a third party. If a third party raises an objection within the period specified in the performance notice, the people's court shall not enforce the execution against the third party and will not review the objection raised by the third party.

(3) Handling of partial objections. If a third party raises objections to part of the obligation notified by the People's Court to perform, the part for which no objection is raised may be enforced; for the part for which the People's Court raises objections, the People's Court will not review and may not enforce the obligation.

(4) Legal consequences of unauthorized performance. After a third party receives a notice from the people's court requiring it to perform due debts to Company A, the person applying for execution, if it performs the debt to the person subject to execution without authorization, causing the property that has been performed to the person subject to execution to be unrecoverable, the third party shall In addition to being jointly and severally liable with the person subject to execution within the scope of the property being executed, the person subject to execution may be held liable for obstructing execution.

2. Participate in the distribution

Monetary claims that have obtained the basis for execution (Article 90 of the Enforcement Regulations)

3. Competing execution

Article 88 of the Enforcement Regulations:

If multiple creditors with multiple effective legal documents specifying the content of monetary payments apply for execution against the same person subject to execution, and each creditor has no security rights to the subject matter of execution, the creditors shall apply in accordance with the Compensation will be paid in the order in which enforcement measures are taken by the enforcement court. Multiple creditors have different types of claims. Claims based on ownership and security rights have priority over monetary claims. If there are multiple security interests, repayment shall be made in the order in which each security interest is established. If multiple creditors who specify the content of monetary payments in an effective legal document apply for execution against the same person subject to execution, and the assets executed are insufficient to repay all the debts, and if each creditor has no security rights to the subject matter of execution, he or she shall be compensated in proportion to each claim.

4. Execution deterrence measures

Article 231: If the person subject to execution fails to perform the obligations specified in the legal document, the people's court may take measures against him or notify the relevant unit to assist in taking measures to restrict his departure from the country. system records, publication of information on non-performance of obligations through the media, and other measures prescribed by law.

IV. Suspension of execution and termination of execution (Articles 232 and 233)

1. Suspension of execution:

(1) The applicant indicates that execution can be postponed , which reflects the parties’ disposition of their rights. (2) A person outside the case raises a well-founded objection to the subject matter of execution. (3) When a citizen who is one of the parties dies and needs to wait for the heir to inherit the rights or assume the obligations. (4) The legal person or other organization that is one of the parties is terminated and the successor of the rights and obligations has not yet been determined. (5) Other circumstances under which the People's Court deems execution should be suspended. According to Article 102 of the "Enforcement Regulations" of the Supreme People's Court, the People's Court shall rule to suspend execution under any of the following circumstances: first, the People's Court has accepted a bankruptcy application with the person subject to execution as the debtor; second, the person subject to execution The person does not have property available for execution; third, the subject matter of the execution is the subject of a dispute in a case being heard by another court or arbitration institution, and the ownership needs to be determined after the trial of the case is completed; fourth, one party applies for the execution of the arbitration award, The other party applies to revoke the arbitration award; fifth, the person against whom enforcement is sought to enforce the arbitration award files a request for non-execution with the People's Court in accordance with the provisions of Article 217, paragraph 2, of the Civil Procedure Law, and provides appropriate security.

2. End of execution?

Article 235: (1) The applicant withdraws the application. (2) The legal document based on which it was executed is revoked. (3) When the citizen who is the person subject to execution dies, there is no inheritance for execution and no person to bear the obligation. (4) The right holder of a case for claiming alimony, support, or child support dies. (5) The citizen who is the subject of execution is unable to repay the loan due to difficulties in living, has no source of income, and has lost the ability to work. (6) Other circumstances under which the People’s Court deems execution should be terminated.

Interpretation of the Highlights of the 2016 Judicial Examination Reform