Viewpoint | Matters needing attention in the implementation of housing provident fund
Published:
2023-12-14
As the property of the executed person, can the housing provident fund break through the above withdrawal conditions and be forcibly deducted by the people's court for execution?
Recently, the author received several inquiries about applying for the enforcement of the effective judgment, the person subject to execution only had a valid property clue of housing provident fund. Article 24 of China's regulations on the Administration of Housing Provident Fund stipulates that the conditions for employees to withdraw the amount stored in the housing provident fund account are generally limited to six situations, such as the purchase and construction of housing, retirement, repayment of the principal and interest of housing loans, and the need to dispose of personal inheritance after the death of employees. So, as the property of the person being executed, can the housing provident fund break through the above withdrawal conditions and be forcibly deducted by the people's court for execution?
On the issue of whether it can break through the provident fund withdrawal conditions stipulated in the "Regulations" and deduct the housing provident fund of the person subject to execution to pay off the debts, local courts currently do not have a unified judgment. When enforcing the property of the person subject to execution, the people's court will usually consider whether the housing provident fund of the person subject to execution in the case meets the withdrawal conditions stipulated in the regulations. If the withdrawal conditions stipulated in the regulations are not met, the housing provident fund of the person subject to execution may only be frozen without making a decision to deduct it.
On the one hand, some courts believe that the establishment of housing provident fund withdrawal conditions under the Regulations is because the nature of the establishment of housing provident fund is to provide minimum housing security for employees. Therefore, if the deduction of the housing provident fund of the person subject to execution has the possibility of affecting his basic living conditions, Then in order to protect the basic housing needs of the person subject to execution, the decision to deduct the housing provident fund of the person subject to execution should be carefully made. At the same time, the housing provident fund is not only the personal property of employees, but also has certain social attributes. Its use and turnover are more coordinated, managed and deployed by the housing provident fund management department. Before the employees withdraw the housing provident fund in accordance with the Regulations, the housing provident fund management department enjoys the possession and use of the employee's housing provident fund, and can use its value-added income to establish the housing provident fund loan risk reserve and the management of the housing provident fund management center. And supplementary funds for the construction of urban low-rent housing, and then provide the minimum housing security for the entire group of employees.
On the other hand, in order to protect the legitimate rights and interests of the person applying for enforcement, some courts broke through the provisions of the "Regulations" and made a decision to deduct the housing provident fund of the person subject to enforcement. In the (2020) Xiangzhi Fu No. 112 execution ruling, the Hunan Provincial Higher People's Court stated that the person subject to execution Li Mou has a fixed source of income and has a house to live in, and the storage balance in his housing provident fund account is his personal property. The "Regulations" stipulate the conditions for withdrawing housing provident fund, and require the housing provident fund management center to assist in withdrawing 137451.46 yuan of Li's housing provident fund. The court broke through the provisions of the Regulations and made the decision to deduct the balance of the executed person's provident fund, which may be based on considerations of legal equity. According to the provisions of Article 249 of the current the People's Republic of China Civil Procedure Law, the housing provident fund is the personal property of the person subject to execution. When the person subject to execution refuses to perform the obligations specified in the legal document, the people's court has the right to seize, Freeze, allocate, and change the value of the property of the person subject to execution to protect the rights of the person applying for execution. Therefore, in the compulsory execution procedure, the housing provident fund, as the personal property of the person subject to execution, can be used as the object of execution and deducted by the court to protect the rights of the person applying for execution.
Since 2017, the courts of Shanghai, Hunan, Jiangsu and other places, in conjunction with the local housing provident fund management departments, have successively issued relevant documents for the compulsory implementation of the housing provident fund. On the basis of the regulations, the conditions for deducting the housing provident fund in the compulsory implementation have been extended to a certain extent. Moreover, the extension and expansion of the above-mentioned courts in various places has the following characteristics:
1. Adhere to the principle of exhausting all enforcement measures-in the case of a joint investigation of the property under the name of the person being executed and determine that, in addition to the housing provident fund deposit, there is no property available for execution or the property is not sufficient to pay off the debt, the balance of the housing provident fund account of the person being executed can be considered.
2. While meeting the basic living and housing security of the person subject to execution, protect the legal creditor's rights of the lender in the housing transaction-the executed housing provident fund cannot have outstanding loans or set up guarantees. Individual courts also regard disputes involving housing consumption claims and debts as one of the conditions for deducting the housing provident fund to protect the legitimate rights and interests of creditors on the basis that the housing provident fund is dedicated to housing security.
3. Protect the legitimate rights and interests of the person applying for execution related to the people's livelihood-when the person applying for execution belongs to a vulnerable group with low or irregular income or the subject of execution is personal injury compensation, child care fee and other personal attached funds and compensation for the victim in criminal incidental civil litigation, you can apply for deduction of the housing provident fund of the person being executed.
4. Protect the personal property rights of the person applying for execution when it comes to property division or inheritance-when the civil judgment or civil mediation document involving marriage or inheritance cases has made a clear distribution of the housing provident fund, you can apply for the deduction of the housing provident fund of the person subject to execution.
5. Add a bottom-up clause-other courts believe that the housing provident fund should be deducted. The enforcement court may negotiate with the provident fund management department to implement the specific solution.
Looking at the above provisions, we can see that: first, these extended provisions make it clear that the housing provident fund shall not be the primary property object in the enforcement procedure. Because the housing provident fund is a special movable property with the function of guaranteeing the minimum housing needs of employees, and has the attributes of security and public welfare, the court should deduct the housing provident fund of the person subject to execution as a supplementary means of execution in the process of enforcement. In the implementation of the housing provident fund deduction also need the cooperation of the housing provident fund management department, need to go through more procedures and procedures, so from the implementation efficiency should also be the housing provident fund deduction as a post-enforcement measures. Second, because the housing provident fund has the characteristics of special housing, if the basic living conditions and basic housing needs of the person subject to execution are not affected in the housing consumption debt dispute, the balance of the provident fund of the person subject to execution can be deducted to effectively safeguard the legitimate rights and interests of the applicant. Third, if the legal interests to be protected by the applicant for execution are extremely important and urgent (such as the cost of personal injury compensation), then the rights and interests claimed can compete with the basic housing needs of the person being executed. Therefore, in order to ensure the normal living needs of the executor, the court has the right to make a decision to deduct the housing provident fund without property burden when it is clear that the basic housing needs and living conditions of the person subject to execution have been met, so as to protect the rights of the executor as much as possible. Finally, the division or inheritance of personal property should also be one of the specific circumstances in which the court deducts the provident fund for enforcement. Because in terms of legal ownership, the housing provident fund is the property owned by the individual employees, so when the husband and wife have dissolved the marriage relationship and the basis of the husband and wife's common property has been lost, the housing provident fund, which was once the common property of the husband and wife, should also be divided in time to protect the legal property ownership of all parties after the dissolution of the marriage relationship. Similarly, after the death of an employee, his personal property (including the housing provident fund) should also be inherited and transferred as his estate.
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