Viewpoint... Rules for the treatment of delayed performance in the implementation of civil mediation.
Published:
2024-05-08
The civil mediation statement belongs to the category of "other legal documents" stipulated in Article 264 of the the People's Republic of China Civil Procedure Law. If the person subject to execution fails to perform his obligations within the period specified in the civil mediation statement, he shall be in accordance with the failure to perform the obligations in accordance with the content of the judgment. The handling rules are similar, and a delay payment shall be paid. However, the specific rules for dealing with delay in performance in the process of execution of civil mediation are slightly different from those in the process of execution of judgment.
The civil mediation statement belongs to the category of "other legal documents" stipulated in Article 264 of the the People's Republic of China Civil Procedure Law. If the person subject to execution fails to perform his obligations within the period specified in the civil mediation statement, he shall be in accordance with the failure to perform the obligations in accordance with the content of the judgment. The handling rules are similar, and a delay payment shall be paid. However, the specific rules for dealing with delay in performance in the process of execution of civil mediation are slightly different from those in the process of execution of judgment.
Rules for the Treatment of General Debt Interest in the Implementation of 1. Civil Mediation.
According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Law Applicable to the Calculation of Interest on Debt for the Period of Delayed Performance in Enforcement Procedures, the deferred performance payment is the interest on the debt during the period of delayed performance, including the interest on the general debt during the period of delayed performance and the interest on the debt doubled.
Interest on general debt may be calculated by the method determined in the civil mediation, and interest payment shall not be calculated in the civil mediation. Generally speaking, the agreement on general debt interest in the civil mediation document should not be based on the default of the executed person or the debtor, I .e. the agreement on general debt interest is as follows: 1. The defendant owes the plaintiff XXX yuan in loan principal; 2. The defendant shall pay interest to the plaintiff, calculated at an annual interest rate of 6% based on XXX yuan until the date when the debt is paid off.
However, if there is a colloquial expression of interest on general debt, but the interest on the general debt is premised on the default of the debtor or the executed person, it shall be regarded as the liability for default agreed by the parties and shall not be understood as the agreement of interest on the general debt. For example, the following classic expression: 1. The defendant owes the plaintiff XXX yuan in loan principal; 2. If the defendant fails to pay the plaintiff XXX yuan in loan principal within 10 days, the defendant shall calculate it at an annual interest rate of 6% based on XXX yuan until the date when the debt is paid off.
Rules for the Treatment of Double Part of Debt Interest in the Implementation of 2. Civil Mediation
(I) civil mediation agreement does not agree on the rules for the treatment of doubling part of the interest on the debt.
In practice, when there are some contents of the civil mediation agreement executed by some courts, because the civil mediation agreement does not stipulate to double the interest on the debt during the delayed performance period, the interest on the double part of the debt is not calculated according to the monetary debt other than the general debt interest determined by the debtor's outstanding effective legal documents x 1.75 per million per day x the delayed performance period.
According to the provisions of Article 264 of the Civil Procedure Law, the civil mediation document belongs to the category of "other legal documents", and the doubling of part of the debt interest during the delay in performance shall be a legal obligation and shall not be lost because the civil mediation document is not clearly stated.
The Leshan Branch of China Merchants Bank Co., Ltd. and Meishan Southwest Xinmao Metal Co., Ltd., Beijing Heli Oriental Trading Co., Ltd., and Li Yuxiang's Case of Objection [Case No.:(2018) Sichuan Zhifu No. 9] Sichuan Provincial Higher People's Court also confirmed the author's above view: the term "civil liability determined by the mediation agreement" stipulated in Article 15 of the Provisions of the Supreme People's Court on Several Issues Concerning the Civil Mediation Work of the People's Courts shall only be understood as the further civil liability arising from the debtor's failure to perform the debt within the period stipulated in the civil mediation agreement after the mediation agreement is reached and under the background of non-immediate settlement, in view of the fact that the civil mediation in the case did not agree that the executed person should bear further civil liability if he did not pay off the debts within the agreed period after the civil mediation was reached, the executed person in the case should bear the responsibility of doubling the interest on the debt during the period of delay in performance.
The (II) civil mediation agreement stipulates the rules for the handling of the liability for delay in performance.
Although doubling part of the debt interest is a statutory calculation standard or calculation method, it has a certain punitive nature, and it has a certain competition relationship with the setting of liability for breach of contract that often appears in the civil mediation, so it cannot be applied at the same time.
Jiangsu Construction Group Co., Ltd. and Jining Juyuan Logistics Co., Ltd. Execution Objection Case [Case No.:(2020) Lu Zhi Fu No. 109] Shandong Higher People's Court held that Article 15 of the Provisions of the Supreme People's Court on Several Issues Concerning Civil Mediation Work of People's Courts is a special provision on the non-performance of civil liability agreed in the civil mediation agreement and the delay in performance stipulated in Article 264 of the Civil Procedure Law, it should be applied preferentially. The civil liability agreed in the civil mediation is the liability for breach of contract, not the content of the payment agreed in the civil mediation. Therefore, after assuming the civil liability determined by the civil mediation agreement, the person subject to execution should no longer bear the liability for delay in performance as stipulated in Article 264 of the Civil Procedure Law.
Siping City SME Financing Guarantee Co., Ltd. and Yitong Manchu Autonomous County Heyuan Chemical Co., Ltd., Jilin Yuanheng Technology Co., Ltd., Jilin Hongfa Group Co., Ltd., Cai Baotian, Fan Lixin Execution Objection Case [Case No.:(2021) Supreme Law Executive Supervision No. 401] The Supreme People's Court believes that the parties can stipulate in the mediation agreement the civil liability that should be borne when one party fails to perform the obligations of the mediation agreement, if a party bears the liability for breach of contract as determined by the mediation agreement, it shall no longer bear the liability for delay in performance under the Civil Procedure Law at the same time. The civil mediation statement executed in this case has clarified the civil liability of the parties when they fail to perform the obligations determined by the mediation agreement, and the content of the statement is the agreement that the parties shall bear civil liability if they fail to perform the mediation agreement. According to the provisions of the judicial interpretation, after the person subject to execution bears the liquidated damages accordingly, he should no longer bear the delay payment stipulated in the Civil Procedure Law.
3. legal advice
According to the above legal provisions and cases, it is suggested that the general debt interest of non-default nature should be clearly stipulated in the civil mediation agreement. In addition, the interest rate for the doubled part of the debt interest should not be less than 1.75 parts per million per day. If the agreed interest rate for the doubled part of the debt is less than 1.75 parts per million per day, the doubled part of the debt interest during the delay period can be clearly paid in accordance with the provisions of Article 264 of the the People's Republic of China Civil Procedure.
Law Index
Article 264 of the the People's Republic of China Civil Procedure Law:If the person subjected to execution fails to perform the obligation to pay money within the period specified in the judgment, ruling or other legal documents, the interest on the debt during the period of delay shall be doubled. If the person subjected to execution fails to perform other obligations within the period specified in the judgment, ruling or other legal documents, a delay payment shall be paid.
Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Law Applicable to the Calculation of Debt Interest for the Period of Delayed Performance in Enforcement Procedures:In accordance with the provisions of Article 253 of the Civil Procedure Law (now Article 264), the interest on the debt during the period of delayed performance after doubling the calculation, including the interest on the general debt during the period of delayed performance and the interest on the debt doubled.
Interest on general obligations during the period of delay in performance shall be calculated in accordance with the method determined by the legal instrument in force; if the legal instrument in force does not determine the payment of such interest, it shall not be calculated.
The interest on the doubled portion of the debt is calculated as follows: interest on the doubled portion of the debt = monetary debt other than interest on general debt as determined by the debtor's outstanding legal instrument in force x 1.75 per 10,000 per day x the period of delay in performance.
Article 8 of the Provisions of the Supreme People's Court on Several Issues concerning the Civil Mediation Work of the People's Courts:The people's court shall grant permission if a party to the mediation agreement fails to perform the agreement and shall bear civil liability.
Article 15 of the Provisions of the Supreme People's Court on Several Issues concerning the Civil Mediation Work of the People's Courts:If the parties apply for enforcement when the conditions of the guarantee terms or the conditions for the assumption of civil liability as determined in the mediation letter are fulfilled, the people's court shall enforce them in accordance with the law.
After the party who fails to perform the mediation agreement has borne the civil liability determined by the mediation agreement in accordance with the provisions of the preceding paragraph, the other party requires him to bear the delay stipulated in Article 253 of the Civil Procedure Law (now Article 264) If the performance of the liability is delayed, the people's court shall not support it.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
