Property preservation is a common legal measure used by people to collect debts through legal channels. The following is an introduction to the legal provisions related to property preservation that I have collected for everyone, for your reference only!
Legal provisions related to property preservation
1. "The Supreme People's Court's Regulation on the Application of (Fafa (92) No. 22) 108. After the People's Court decides to take property preservation measures, in addition to No unit may lift the preservation measures during the period of property preservation, except for the people's court that made the preservation ruling to lift it on its own initiative or the people's court at a higher level deciding to lift it. 109. The effectiveness of property preservation rulings in litigation should generally remain valid until the effective legal document is executed. During the course of litigation, if the preservation measures need to be lifted, the People's Court shall make a timely ruling to lift the preservation measures. Note: Articles 136, 205, 206, 240 to 253, and 299 were abolished by Legal Interpretation [2008] No. 15 on December 24, 2008. . 2. "Regulations of the Supreme People's Court on Seizing, Detaining and Freezing Property During Civil Execution by People's Courts" (Fa Shi [2004] No. 15) Article 4 If property preservation measures are taken before litigation, during litigation or arbitration, after entering into execution procedures, they will automatically be converted into measures of sealing, detaining, and freezing during execution, and Article 29 of these Provisions on sealing, detaining, and freezing shall apply. Freezing period provisions. Article 29: 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 six months, the time limit for sealing up or detaining movable property shall not exceed one year, and the time limit for sealing up real estate or freezing other property rights shall not exceed The period shall not exceed two years. 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 renewal procedures for sealing, detaining, and freezing before the expiration of the period of sealing, detaining, and freezing, and the renewal period shall not exceed half of the period specified in the preceding paragraph. one. Article 30: If the time limit for sealing, detaining, or freezing expires and the People’s Court fails to handle the extension procedures, the effectiveness of the sealing, detaining, or freezing shall be extinguished. If the property that has been sealed, detained or frozen has been auctioned, sold or paid off, the effect of the seizure, seizure or freezing shall be extinguished. Article 32 These regulations shall apply to the execution of property preservation rulings and preliminary execution rulings. 3. "Notice of the Supreme People's Court, the Ministry of Land and Resources, and the Ministry of Construction on Several Issues Concerning the Legal Regulation of Enforcement by the People's Courts and Assistance in Enforcement by Land, Resources and Real Estate Management Departments" (Fafa [ 2004] No. 5) In order to ensure the timely execution of effective judgments, rulings and other effective legal documents of the People's Court in accordance with the law and protect the legitimate rights and interests of the parties, in accordance with the "Civil Procedure Law of the People's Republic of China" and " According to relevant legal provisions such as the Land Management Law of the People's Republic of China and the Urban Real Estate Management Law of the People's Republic of China, the relevant issues regulating the enforcement by the people's courts and the assistance of the land, resources and real estate management departments in enforcement are hereby notified as follows: : 11. The people’s court shall not seize land use rights and houses for more than two years. The seal can be renewed once upon expiration. When renewing the seal, a new seal ruling and a notice of assistance in enforcement must be made. The renewal period shall not exceed one year. If there are indeed special circumstances that require renewal, it must be approved by the higher people's court, and the period of renewal shall not exceed one year. If the sealing period expires and the people's court fails to complete the formalities for continuing the sealing, the effectiveness of the sealing will be extinguished. 28. This Notice shall apply when the People’s Court conducts property preservation and advance execution. Thirty. This notice will come into effect on March 1, 2004. IV. "Interpretation of the Supreme People's Court on the People's Court's Property Preservation of Registered Trademark Rights" Fa Interpretation [2001] No. 1 In order to implement it correctly Regarding property preservation measures for registered trademark rights, to avoid repeated preservation, the relevant issues regarding the property preservation of registered trademark rights by the People’s Court are hereby explained as follows: Article 1 The People’s Court shall adopt property preservation measures in accordance with the relevant provisions of the Civil Procedure Law When taking measures, if it is necessary to preserve the registered trademark rights, a notice of assistance in enforcement shall be issued to the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office), specifying the name, registrant, and registered trademark of which the Trademark Office is requested to assist in preservation. Certificate number, preservation period, and assistance in the implementation of preservation, including prohibition of transfer, cancellation of registered trademarks, changes in registration matters, and registration of trademark rights pledges. Article 2: The period of preservation of registered trademark rights shall not exceed six months at a time, and shall be calculated from the date when the Trademark Office receives the notice of assistance in enforcement. If 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 enforcement to the Trademark Office before the expiration of the preservation period, requesting continued preservation. Otherwise, the property preservation of the registered trademark right will be deemed to be automatically terminated. Article 3: The People’s Court shall not conduct repeated preservation of registered trademark rights that have already been preserved. (Effective from January 21, 2001) II. Regarding the issue of freezing corporate deposits The People's Court shall, in accordance with Article 9 of the Civil Procedure Law (Trial) According to the provisions of Article 12, if it is decided to freeze a certain amount of bank deposits of enterprises, institutions, agencies, or groups, and the bank needs to assist in the execution, the bank shall immediately upon receipt of the People's Court's notice of assistance in execution (with a copy of the ruling attached), shall Freeze the same amount of deposits in the unit's bank account (it can only be frozen on the spot and cannot be transferred). The unfreezing of frozen funds shall be based on a notice from the People's Court, and banks shall not unfreeze on their own. The maximum period for freezing corporate deposits shall not exceed six months. If there are special reasons that need to be extended, the people's court shall go through the procedures for continuing the freezing with the bank before expiration; if the procedures for continuing the freezing are not completed after the expiration date, the freezing will be deemed to be automatically revoked. 6. "Reply from the Supreme People's Court on How to Calculate the Start and End Time of Freezing the Bank Deposits of Units for Six Months" Fa Jing (1995) No. 16)
After the expiration of the seizure period, the continued seizure of property can only be implemented and completed after the relevant executor files an application for renewal in accordance with the law. When the seizure period expires, if extension procedures are not completed, the effectiveness of the seizure will disappear.
Since the effect disappears on its own, the parties can take it away at will after that.
Before the case is concluded, you will keep applying for property preservation.
Relevant legal provisions on property preservation:
"Interpretation of the Supreme People's Court on Property Preservation of Registered Trademark Rights by People's Courts"
Legal Interpretation [2001] No. 1
In order to correctly implement property preservation measures for registered trademark rights and avoid repeated preservations, the relevant issues concerning the property preservation of registered trademark rights by the People's Court are hereby explained as follows:
First Article 1 When the people's court takes property preservation measures in accordance with the relevant provisions of the Civil Procedure Law and needs to preserve the registered trademark rights, it shall issue a notice of assistance in enforcement to the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office), specifying the request to the Trademark Office The name, registrant, registration certificate number, preservation period, and contents of assisting in the execution of preservation of the registered trademark to be assisted in preservation, including prohibition of transfer, cancellation of registered trademark, change of registration matters, registration of trademark right pledge, etc.
Article 2: The period of preservation of registered trademark rights shall not exceed six months at a time, and shall be calculated from the date when the Trademark Office receives the notice of assistance in enforcement. If 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 enforcement to the Trademark Office before the expiration of the preservation period, requesting continued preservation. Otherwise, the property preservation of the registered trademark right will be deemed to be automatically terminated.
Article 3: The People’s Court shall not conduct repeated preservation of registered trademark rights that have already been preserved.
Legal conditions for property preservation
Property preservation is an important legal system stipulated in my country’s Civil Procedure Law. According to the provisions of the Civil Procedure Law, there are two types of property preservation: one is property preservation before litigation; the other is property preservation during litigation.
Pre-litigation property preservation refers to litigation protection activities in which the people's court takes compulsory protection measures against the parties' property or the subject matter of the dispute based on the application of the interested parties before accepting the lawsuit. According to Article 93, Paragraph 1, of the Civil Procedure Law, property preservation before litigation should meet two conditions: 1. The situation must be urgent, and failure to apply for property preservation immediately will cause irreparable damage to its legitimate rights and interests; 2. .The applicant shall provide, if no guarantee is provided, the People's Court shall reject the application.
Property preservation in litigation means that during the course of litigation, in order to ensure that future judgments can be effectively implemented, the people's court shall take compulsory measures against the property of the parties or the subject matter of the dispute at the request of the parties or on its own initiative and ex officio. Litigation safeguard activities for protective measures. In judicial practice, people's courts generally do not proactively take property preservation measures ex officio due to pressure from state compensation. According to Article 92, Paragraph 1, of the Civil Procedure Law, there is only one condition for a party to apply for property preservation in litigation, that is, the judgment may be impossible or difficult to execute due to the behavior of one of the parties or other reasons. It is up to the People's Court to decide whether a guarantee is required for property preservation in litigation; if the court orders the applicant to provide a guarantee and the applicant fails to provide a guarantee, the People's Court will reject the applicant's application.
Legal risks faced by property preservation
In the process of debt collection, creditors can decide, based on the specific circumstances of the case, whether to apply for property preservation measures before litigation, or whether to apply for property preservation measures during the litigation process. Apply for property preservation measures. In practice, when a creditor applies to the people's court to take property preservation measures, the main legal risks that a creditor may face include:
(1) Applying for property preservation beyond the scope, causing losses to the respondent and triggering litigation. Article 94, paragraph 1, of the Civil Procedure Law stipulates that property preservation is limited to the scope of the request or the property related to the case. Article 96 stipulates that if there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the respondent due to property preservation. In practice, there are two main situations when a creditor applies for property preservation beyond the scope: First, the debtor's property is applied for property preservation beyond the scope, which damages the legitimate rights and interests of the debtor. The second is to wrongly apply for property preservation for property that does not belong to the debtor, thereby damaging the legitimate rights and interests of the third party.
(2) Failure to initiate a lawsuit within the statutory period after taking preservation measures before the lawsuit resulted in the termination of the property preservation, and even triggered a lawsuit by the respondent claiming compensation for the losses caused by the applicant. According to the "Civil Procedure Law", after the applicant takes pre-litigation preservation measures in the People's Court, he shall file a lawsuit within 15 days. If he fails to file a lawsuit within the time limit, the People's Court shall terminate the property preservation. In practice, the creditor applies to the people's court to take pre-litigation property preservation measures. After preserving the debtor's property, the debtor may request the creditor not to sue on the grounds of repayment, and immediately transfer the property to evade the debt after the people's court lifts the property preservation measures, resulting in the creditor's The creditor's rights are frustrated; the debtor may also negotiate with the creditor on the grounds that it is willing to repay the debt, so as to induce the creditor not to sue the debtor, but later sue the creditor for compensation on the grounds that the creditor's improper property preservation before the lawsuit caused damage to the debtor.
(3) The property preservation measures applied for are inappropriate and the property being preserved cannot be effectively controlled, resulting in the inability to execute the judgment. For example, for seasonal goods, fresh and perishable items, and other items that are not suitable for long-term storage, the creditor does not promptly require the debtor to process and keep the price, or fails to apply to the people's court in time to process, sell, and keep the price. For another example, if the property being preserved in another place should be seized in another place, but only on-site seizure measures are taken, resulting in the property being preserved out of control and illegally transferred by the debtor, etc.
(4) When the People’s Court implemented compulsory measures for property preservation, the relevant procedures were incomplete, resulting in property preservation being in vain. For example, Article 41 of the Supreme People's Court's "Regulations on Several Issues Concerning the Enforcement Work of People's Courts (Trial)" stipulates that the seizure of movable property shall be done by affixing a seal. If it is inconvenient to affix a seal, an announcement should be posted.
For the seizure of movable or immovable property with a title certificate, a notice of assistance in execution shall be issued to the relevant administrative agency, requiring it not to handle the transfer procedures of the seized property. However, in judicial practice, the quality of the judges handling cases may vary. If the awareness of responsibility is not strong and the relevant legal procedures are not strictly followed, the debtor may take the opportunity to circumvent the law and transfer the seized property privately, and a third party may even use it as his own. Resistance to execution on the grounds of good faith makes it difficult to recover the transferred property. For another example, during preservation, the judge handling the case failed to register or list the seized items due to various reasons, and the items to be seized were not clear. This would easily lead to disagreements between the parties when handling the seized items during execution, and the execution would be at a loss.
Preventive measures for property preservation
The significance of creditors taking legal measures for property preservation mainly lies in the effective implementation of the rulings of the people's courts in order to protect their own creditor's rights and interests to the maximum extent. In order to avoid possible legal risks caused by taking property preservation measures before and during litigation, the author puts forward the following countermeasures and suggestions: (1) Actively search for the debtor's property and reasonably determine the scope of application for property preservation. In practice, creditors should understand the debtor's property status through various channels such as taxation departments, real estate and land departments, and industrial and commercial departments, and expand the options for preserving property; at the same time, based on the scope of litigation claims or the actual case, try to choose those whose values ??are relatively stable. Preservation of movable property (including rights assets) or immovable property is carried out to achieve the effect of property preservation and ensure the effective execution of future judgments. This can also minimize the damage to the debtor and effectively avoid risks caused by improper preservation. It is worth noting that according to legal provisions, property preservation measures can also be taken against properties and liens (but the mortgagee and lien holder have priority in receiving repayment). For a third party's due creditor's rights, the debtor's property shall not satisfy the preservation request, but if it has a due creditor's right against the third party, the creditor may apply to the People's Court to rule that the third party shall not repay the debtor in this case; if the third party requires repayment , the property or price shall be deposited by the People's Court.
(2) After taking property preservation before litigation, the creditor must file a lawsuit with the People's Court within the statutory period. If no lawsuit is filed, a repayment plan and effective guarantee measures must be implemented with the debtor. After the people's court lifts the property preservation measures, it is necessary to continue to strengthen the monitoring of the debtor's property to prevent the debtor from delaying time and transferring property to evade debts. Once an adverse situation occurs, it should be prosecuted immediately and apply for property preservation measures in litigation.
(3) Actively strengthen the monitoring of the preserved property and effectively prevent the debtor from transferring or disposing of the preserved property. Creditors should pay close attention to the debtor's movements and determine whether the debtor exists or may transfer seized or seized property. If the debtor transfers, conceals, sells or destroys property, it must promptly report the situation to the people's court and actively take measures to stop it or change preservation measures to prevent the subject matter from getting out of control and making the case difficult to enforce.
(4) Take appropriate property preservation measures for different properties to be preserved. Measures for property preservation include seizure, seizure, freezing and other methods prescribed by law. When creditors apply for property preservation measures, they should take appropriate preservation measures based on the nature and attributes of specific property such as movable or immovable property. For example, for the debtor's movable property, if the debtor may transfer the seized property, he should apply for seizure measures. If it is not appropriate to seize the property and take on-site seizure measures, the people's court can entrust other units or individuals to keep it for safekeeping, etc. If long-term preservation is not suitable or the value of the preserved property is easily diminished, apply to the people's court to order the parties to deal with it in a timely manner, provide guarantees or realize it in a timely manner, so as to prevent the preservation subject matter from being diminished in value and avoid litigation preservation in name only.