In reality, people are often vague about the concepts of seizure, seizure, and freezing. Let me take a closer look at the differences between the three.
The concept of seizure, seizure and freezing
The so-called seizure means that the administrative subject attaches a seal to the property of the administrative counterpart and forcibly seals it. During the period of seizure, the use of property rights is restricted, and the person subject to seizure shall not dispose of his property. Seizure refers to a coercive measure by which an administrative subject restricts 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 items that are difficult to move or that are not necessary to be transferred to the administrative agency's premises, that is, they are left in place and sealed; while the seized property is generally movable and must be transferred from the administrative counterpart's premises. items, or were seized on-site by administrative entities during law enforcement inspections and supervision. Freezing: A coercive measure taken to restrict the flow of property involved in order to prevent illegal actors from transferring funds or escaping funds.
The relationship between seizure and distraint
In the civil enforcement laws of France, Germany, Japan and other countries, the enforcement measures that restrict the debtor’s exercise of the right to dispose of its property are collectively referred to as? Seizure? In Taiwan, the enforcement measures that restrict the debtor from exercising the right to dispose of its movable or immovable property are called "seizure", and the enforcement measures that restrict the debtor from exercising the right to dispose of other property rights are called "seizure". . However, in the theoretical and practical circles in Taiwan, "seizure" and "distraint" are often used interchangeably. For example, Professor Yang Yu-ling defines "seizure" as "seizure," also known as "distraint," which is contained in the creditor's execution name. The realization of creditor's rights limits the execution behavior of the debtor's right to dispose of the subject matter of execution?
In mainland my country, theoretical circles generally believe that there is a difference between seizure and seizure. For example: Seal is a restrictive measure that affixes a seal to real estate or property that is large and difficult to move, seals it in place, and does not allow the person subject to execution to move or dispose of it. Seizure is a restrictive measure that places a seal on real estate or property that is large and difficult to move. Or a restrictive measure to detain property that is large but easy to move and transport it to the people's court or other places for safekeeping so that the person subject to execution cannot possess, use and dispose of it? In addition, there is freezing, which is a compulsory measure taken against the deposits, assets, and claims of the person subject to execution. It can be seen that according to the views of mainland Chinese scholars, seizure, seizure and freezing are different concepts. The main difference between seizure and seizure is whether the location of the subject matter has been moved. The seized property generally remains in place (that is, what is commonly known as in-situ seizure ), and the seized property generally needs to be moved (also called off-site seizure). However, in our country's practice, there are also cases where these two enforcement measures are mixed. For example, measures such as not affixing seals, allowing use, and prohibiting disposal of vehicles and machinery and equipment are called "live sealing" or "live buckling", and there is no difference between the two. Even the freezing of a bank account is called a seizure, especially on the part of the parties concerned. In maritime cases, when enforcement measures are taken to prohibit the movement of ships, it is actually only called "detention" and there is no such thing as seizure.
Relevant doctrines on the relativity of the effectiveness of seizure
The relativity of the effectiveness of seizure means that for the creditor who implements the seizure, the debtor's disposition is not effective for other parties who did not participate. As far as the creditors are concerned, the debtor's disposition remains valid. The relativity of the seizure effect is closely related to the purpose of the seizure. It is generally believed that the purpose of seizure as an execution of monetary claims is to ensure the monetary value in the execution procedure. Therefore, the debtor must be deprived of the right to dispose of the subject matter of the execution. However, the effect of prohibiting disposition is only to ensure that the rights of the executing creditor are satisfied with the necessary monetary value during the execution proceedings. Therefore, there is no reason to deny the debtor's freedom to dispose beyond this purpose.
The specific meaning of the relativity of the effect of attachment
1. The theory of individual relative effect
This view holds that attachment is to ensure the rights of the seizing creditor and to make the subject matter The purpose is to realize the monetary value of the thing. Therefore, it should be understood that the effect should be valid within the necessary limits for its purpose. That is, the execution of the disposition performed by the debtor after the seizure is only invalid for the seizing creditor, but is fully valid for other creditors. of. In other words, the debtor's disposition is still valid between the debtor and the third party, but it cannot be used against the creditor.
In other words, the creditor can claim that its disposition is invalid to exclude the effectiveness of its disposition. However, if the creditor tolerates this, its disposition will still be valid.
2. Theory of relative effectiveness of procedures
This view holds that the seizure implemented by the court based on the application of the executing creditor will have legal effect on all other creditors participating in the execution procedure. Therefore, the dispositions carried out by the creditor after the seizure, as long as the execution procedure started due to the seizure continues, will not only not be against the executing creditor, but also against all the creditors who participated in the procedure. These people can only be dealt with when the procedure is canceled or the application for execution is withdrawn. is effective. That is to say, during the period when the seizure is valid, the dispositions made by the debtor will not have legal effect on all executing creditors. Therefore, according to this doctrine, even if a transfer occurs after the seizure, as long as the execution procedure continues, other creditors can file a distribution request to participate in the distribution.
Japan’s Civil Enforcement Law and Taiwan’s Compulsory Enforcement Law both adopt the position of the procedural relative effectiveness theory on the issue of relative effectiveness of seizure. (7) There are three reasons why Japan’s civil enforcement law adopts the theory of relative effectiveness of procedures: First, when seizure measures are initiated based on the application of one creditor, other creditors can also participate in the procedure and receive equal repayment, which can make egalitarianism The principle of distribution is guaranteed by law; secondly, from a practical point of view, many persons subject to execution have no assets or very few assets. Rather than giving the debtor the freedom to dispose of the remaining property, it is better to give priority to other creditors' equal repayment interests. Better protection. Therefore, as long as the auction procedure based on the seizure prior to the debtor's freedom to dispose of the remaining value continues, even if the effectiveness of the debtor's disposition is denied, it will be a last resort. Moreover, as long as the seizure has been announced, it cannot be said that it has negated the debtor's disposition and caused disadvantages to the third party; thirdly, if the theory of individual relative effectiveness is adopted, it will be due to the establishment of the security right after the seizure. Distribution creates difficulties. The adoption of the theory of relative effectiveness of procedures can avoid this problem in technical processing.
About frozen objects
Regarding "freezing", the theoretical community has different understandings mainly on frozen objects. Some people think that freezing is a restrictive enforcement measure taken against the person subject to execution, other than the bank deposits, such as land use rights, patent rights, trademark rights, telephone use rights, equity, dividends, bonuses, etc. (8), and its objects are: Property rights other than bank deposits. Some people believe that "freezing" refers to an enforcement measure in which the people's court issues a notice of assistance to a financial institution to prohibit the person subject to execution from withdrawing and transferring the deposit within a certain period of time. (9) Its object only refers to bank deposits. There is also a view that freezing is generally an execution of deposits, stocks, futures and other properties of the person subject to execution, and its objects include the above two situations.
Use of seized property
Article 43 of the "Enforcement Regulations" stipulates that the custodian shall not use the seized property. The custodian here refers to the people's court, the entrusted third party, and the person applying for execution in addition to the person subject to execution. That is to say, the People's Court, the entrusted third party, and the person applying for execution are not allowed to use the seized items in their custody. There are different views on whether the person subject to execution can continue to use the seized property in his custody: 1. Definitely, the proceeds can continue to be used. Because the purpose of the seizure is to prohibit the person subject to execution from disposing of the property, the person subject to execution will not lose the right to use the proceeds from the seized property. 2. Negatively speaking, the proceeds must not be used. The use of seized property will inevitably reduce the value of the property, especially the value of movable property, and its use will harm the interests of the applicant. 3. The compromise is that in principle, the seized items are not allowed to be used, but can be used with the permission of the enforcement court. If the use does not detract from its transaction value, the use should be allowed. Especially for real estate, which has a large value, its value will generally not be reduced by use. Usually, prohibiting the debtor from disposing of it can achieve the purpose of seizure. If all use is prohibited, it will be detrimental to the interests of the debtor.
On this issue, Japanese academics and practitioners believe that in principle, the use of seized objects is not allowed, and only the use of seized objects will not reduce the special value of the object, or the normal use will not reduce the significant value of the object. Use is only allowed on an exceptional basis. In practice, the Taiwan region of our country used the "negative theory" in the past. When the legislation was revised in 1996, it was stipulated that when the debtor is the custodian of the seized property, he may be allowed to use it within the scope of not damaging the value of the seized property.
The "Seizure Provisions" adopt the third view, stipulating that if the continued use of the seized property has no significant impact on its value, the person subject to execution may be allowed to continue to use it.
Time limit for sealing, detaining, and freezing
1. "Regulations of the Supreme People's Court on Seizing, Seizing, and Freezing Property in Civil Execution by People's Courts"
Art. Article 29 The period 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 period for sealing up or detaining movable property shall not exceed one year, and the period for sealing up real estate or freezing other property rights 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.
2. "Regulations 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" Article 6 The period for freezing equity shares 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 period of preservation of registered trademark rights shall not exceed six months at a time. Upon receipt of a notice of assistance in enforcement from the Trademark Office Calculated from the date of writing. 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.
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2. The difference between property seizure and freezing
3. Regulations on seizure and freezing
4. Regulations on the management of seizure, seizure and freezing by public security organs
5 . The latest provisions on the seizure period
6. The Supreme Court implements the provisions on the seizure
7. The legal provisions on the seizure in 2017