Viewpoint...............................................................................................
Published:
2022-09-26
The bank account of the executed person is an important property clue, the currency in the account is a kind of thing, according to the principle of right appearance, usually possession is all. The court generally follows the principle of formal examination when examining the property of the person subject to execution in the enforcement procedure, and the bank deposit in the name of the person subject to execution is often considered to be all his property, and the court may take enforcement measures against the bank account in accordance with the law. Question: Outsider A mistakenly remitted all his 2 million yuan money to the bank account of executed person B, but the account was sealed up and frozen by the court before the money was remitted, and B could not return it to Party A. Now, in order to safeguard its rights, can Party A directly file a lawsuit against the execution of the outsider and the execution of the outsider? Can the ownership of the mis-remittance item be directly confirmed and the execution be blocked after an objection is raised? What should be the most appropriate way of judicial relief? The aforementioned problems are common in judicial practice, but there has been controversy, this paper combined with the relevant legal provisions, cases for a brief analysis. 1. Controversial Views in Current Judicial Practice 1, outsider A may file an enforcement objection to the exclusion of enforcement. First of all, all the money of the outsider A enters the account of the executed person B only because of the wrong remittance. Because the legal act without true intention does not have the legal effect of establishing, changing and terminating civil rights and obligations, the remittance behavior of the outsider A does not lead to the transfer of ownership of the remitted items. At this time, the state of the money is the separation of ownership and possession, outsider A has a civil interest in the amount sufficient to exclude enforcement. Secondly, the lawsuit of the outsider's execution objection is aimed at protecting the legal entity rights of the outsider. If it is found that the rights and interests of the entity involved in the case belong to the outsider A, the execution of the money involved in the case should be stopped directly to protect the legitimate rights and interests of the outsider A. Reference case: Supreme People's Court case [Supreme People's Court (2017) Supreme Fa Min Shen No. 322], which was published in the 2nd issue of the Supreme People's Court Bulletin in 2018. 2, the money belongs to the person subject to execution B, the court can enforce the money, outsider A should file a separate lawsuit for unjust enrichment. First of all, possession is the general principle of judging the nature of the ownership of funds, in the absence of evidence to the contrary to prove that the real right of the funds and the account owner is not the same, the general principle should be applied, the case of outsider A transfer of the money to the account of the executed person B, the ownership has been transferred to the executed person, no longer belong to the outsider. Secondly, even if the fact of erroneous remittance claimed by outsider A is established, the legal relationship formed by outsider A and B is a debt of unjust enrichment, and the right to claim unjust enrichment is an ordinary claim and does not belong to a civil right that is sufficient to prevent enforcement. Since the account owner B received the money without good reason, A may sue separately in a separate case for unjust enrichment. However, the claim is an ordinary claim and has no priority over the rights of other creditors of the possessor, so it cannot be prevented from executing the procedure separately. Reference case: Supreme Court case ["Civil Trial Guidance and Reference" Si Wei Supreme Court People's Court (201803/75), (2018) Supreme Fa Min Shen No. 1742]]. 2. relevant legal provisions and judicial adjudication tendency 1. On November 29, 2019, the Supreme People's Court issued the Interpretation (I) on the Application of Law in the Trial of Cases of Objection to Execution (draft for public comment) on its official website. Article 15 of the Interpretation: "The people's court enforces enforcement of funds in the account of the person subject to execution, and the outsider in the case claims that the funds in the account are remitted by mistake and that they are the actual owners of the funds, if the people's court does not support a lawsuit against the execution of the objection, the people's court may not support it, and the person outside the case may claim another right in accordance with the law on the basis of the facts such as the erroneous remittance." The above interpretation has not yet entered into force, although it is only a draft for comments, but it can also be seen that the Supreme People's Court's attitude towards the wrong remitter when filing an enforcement objection lawsuit will also have an impact on the court's tendency to judge such cases, with the aim of improving the efficiency of enforcement and guiding the parties to file an unjust enrichment lawsuit. 2. On July 28, 2020, the Shandong Higher People's Court issued a local judicial document, according to Article 11 of the ''Answers to Several Questions of the Civil Division of the Shandong Higher People's Court on the Trial of Cases of Objection to Enforcement of Laws'': For the ownership of the rights of monetary funds, the cash holder and bank account registrant shall generally be presumed to be the right holder based on the apparent state of the possession of the funds. If the outsider claims the right to the wrong remittance of the funds in the account of the person being executed, and requests the exclusion of execution, it is generally not supported. If the outsider has evidence that the monetary funds have been specified by means of special accounts, special accounts, seals, etc., which is sufficient to show that the property rights and interests are in a state of separation of ownership and possession, the actual right holder of the monetary funds shall be determined on the basis of the true attribution of rights." According to the above provisions, the trial practice in Shandong region can be analyzed and obtained, and conditional support is given to the lawsuit of execution objection raised by outsiders. The author further searched the judgment documents of such cases in Shandong region after November 29, 2019, and found that only a few cases were supported during this period, and most of the cases were rejected. At present, the judgment caliber has not been unified. 3. On January 24, 2022, the WeChat public number "Supreme People's Court People's Court" published an article: "Outsiders cannot exclude enforcement on the grounds that the funds in the account of the executed person are misremitted by him." The general content is as follows: (1) As a special movable property and an unspecified object, currency is its basic attribute. When the bank executes the remitter's intention, the effect of fund delivery occurs. The civil rights arising from the legal transfer of currency are enjoyed by the account owner. The funds remitted to the account of the person subject to execution are the liability property of the person subject to execution and belong to the property available for execution. (2) Based on the basic principle that currency possession is all, even if the wrong remittance is a fact, for the remitter, the legal consequence of the wrong remittance is that it has the right to claim unjust enrichment for the owner of the remittance account, which belongs to the category of creditor's rights, not the real right. The right to claim unjust enrichment has no priority over other ordinary monetary claims and cannot exclude enforcement. (3) Although an outsider cannot exclude enforcement on the basis that the funds in the account of the executed person are misremitted by him, if the outsider does have evidence to prove that he or she is misremitted by mistake, he or she may, in accordance with the law, separately claim the return of unjust enrichment to the executed person. According to the above-mentioned relevant provisions and views, it can be seen that the attitude of the Supreme People's Court in handling such cases has been revised from the tendency to support the execution objection of outsiders to not support it. The author believes that although it can play a role in improving the efficiency of execution and guiding the parties to file unjust enrichment claims, to a certain extent, unjust enrichment claims have little effect on the wrong remitters. Even if the unjust enrichment claim is successful and enters the enforcement phase, it is still an ordinary claim in nature, without any priority effect, and there is great uncertainty as to whether it can be enforced in place. 3. choose a more comprehensive way of relief The author believes that in the event of an outsider's erroneous remittance, an appropriate litigation plan should be formulated in the light of the specific facts of the case: 1, give priority to the outsider to execute the objection to the lawsuit. Because the debt of unjust enrichment has the nature of ordinary creditor's rights, it can not achieve the purpose of the outsider to confirm the ownership of the money and exclude the purpose of enforcement, so the priority is to choose the outsider to execute the objection. At the same time, attention should be paid to whether the following factual factors of the case exist: (1) Whether the outsider can confirm the existence of the fact of the erroneous remittance. Confirm the causes of remittance, such as the existence of other contractual debts; Confirm the causes of erroneous remittance, such as the high similarity between the account number and account name of the intended payment account and the actual collection account; Timely relief after erroneous remittance, such as immediately informing the other party or filing a civil lawsuit, etc.; Whether there is a corresponding contract or other cooperative relationship between the two parties; The degree to which the remittance amount is consistent with the cooperative relationship between the two parties, etc. (2) Whether there are other economic transactions between the outsider and the payee. (3) Whether there is agreement between the outsider and the payee on the remittance (4) Status of the receiving account at the time of remittance (5) During the period when the account was closed and the person in the case brought by the outsider, whether other funds entered the account and whether it was mixed with other funds. After comprehensive consideration of the above factors, it can be decided according to the specific facts of the case whether to give priority to the execution of the objection of the outsider, so as to obtain the support of the people's court, so as to exclude the enforcement. 2. Supplementary filing of unjust enrichment claims There is a legal risk of being rejected by the court because the cases filed by outsiders of the execution objection and the execution objection are complicated and the trial period is long. If the execution objection and the execution objection are rejected, the time cost of the lawsuit will be increased. Therefore, it is necessary to add the lawsuit of unjust enrichment at the same time, require the executed person to return the wrong remittance funds, and apply for enforcement in a timely manner. However, due to the nature of ordinary claims, there is a high probability that distribution can only be obtained through participation in the distribution process, and there is a legal risk that it cannot be effectively implemented in place.
The bank account of the executed person is an important property clue, the currency in the account is a kind of thing, according to the principle of right appearance, usually possession is all. The court generally follows the principle of formal examination when examining the property of the person subject to execution in the enforcement procedure, and the bank deposit in the name of the person subject to execution is often considered to be all his property, and the court may take enforcement measures against the bank account in accordance with the law.
Question:Outsider A mistakenly remitted all his 2 million yuan money to the bank account of executed person B, but the account was sealed up and frozen by the court before the money was remitted, and B could not return it to Party A. Now, if Party A wants to safeguard its rights, can it directly file a lawsuit against the execution of the outsider and the execution of the outsider? Can the ownership of the mis-remittance item be directly confirmed and the execution be blocked after an objection is raised? What should be the most appropriate way of judicial relief?
The aforementioned problems are common in judicial practice, but there has been controversy, this paper combined with the relevant legal provisions, cases for a brief analysis.
1. Controversial Views in Current Judicial Practice
1, outsider A may file an enforcement objection to the exclusion of enforcement.
First of all, all the money of the outsider A enters the account of the executed person B only because of the wrong remittance. Because the legal act without true intention does not have the legal effect of establishing, changing and terminating civil rights and obligations, the remittance behavior of the outsider A does not lead to the transfer of ownership of the remitted items. At this time, the state of the money is the separation of ownership and possession, outsider A has a civil interest in the amount sufficient to exclude enforcement.
Secondly, the lawsuit of the outsider's execution objection is aimed at protecting the legal entity rights of the outsider. If it is found that the rights and interests of the entity involved in the case belong to the outsider A, the execution of the money involved in the case should be stopped directly to protect the legitimate rights and interests of the outsider A.
Reference case: Supreme People's Court case [Supreme People's Court (2017) Supreme Fa Min Shen No. 322], which was published in the 2nd issue of the Supreme People's Court Bulletin in 2018.
2, the money belongs to the person subject to execution B, the court can enforce the money, outsider A should file a separate lawsuit for unjust enrichment.
First of all, possession is the general principle of judging the nature of the ownership of funds, in the absence of evidence to the contrary to prove that the real right of the funds and the account owner is not the same, the general principle should be applied, the case of outsider A transfer of the money to the account of the executed person B, the ownership has been transferred to the executed person, no longer belong to the outsider.
Secondly, even if the fact of erroneous remittance claimed by outsider A is established, the legal relationship formed by outsider A and B is a debt of unjust enrichment, and the right to claim unjust enrichment is an ordinary claim and does not belong to a civil right that is sufficient to prevent enforcement. Since the account owner B received the money without good reason, A may sue separately in a separate case for unjust enrichment. However, the claim is an ordinary claim and has no priority over the rights of other creditors of the possessor, so it cannot be prevented from executing the procedure separately.
Reference case: Supreme Court case ["Civil Trial Guidance and Reference" Si Wei Supreme Court People's Court (201803/75), (2018) Supreme Fa Min Shen No. 1742]].
2. relevant legal provisions and judicial adjudication tendency
1. On November 29, 2019, the Supreme People's Court issued the Interpretation (I) on the Application of Law in the Trial of Cases of Objection to Execution (draft for public comment) on its official website. Article 15 of the Interpretation: "The people's court enforces enforcement of funds in the account of the person subject to execution, and the outsider in the case claims that the funds in the account are remitted by mistake and that they are the actual owners of the funds, if the people's court does not support a lawsuit against the execution of the objection, the people's court may not support it, and the person outside the case may claim another right in accordance with the law on the basis of the facts such as the erroneous remittance."
The above interpretation has not yet entered into force, although it is only a draft for comments, but it can also be seen that the Supreme People's Court's attitude towards the wrong remitter when filing an enforcement objection lawsuit will also have an impact on the court's tendency to judge such cases, with the aim of improving the efficiency of enforcement and guiding the parties to file an unjust enrichment lawsuit.
2. On July 28, 2020, the Shandong Higher People's Court issued a local judicial document, according to Article 11 of the ''Answers to Several Questions of the Civil Division of the Shandong Higher People's Court on the Trial of Cases of Objection to Enforcement of Laws'': For the ownership of the rights of monetary funds, the cash holder and bank account registrant shall generally be presumed to be the right holder based on the apparent state of the possession of the funds. If the outsider claims the right to the wrong remittance of the funds in the account of the person being executed, and requests the exclusion of execution, it is generally not supported.
If the outsider has evidence that the monetary funds have been specified by means of special accounts, special accounts, seals, etc., which is sufficient to show that the property rights and interests are in a state of separation of ownership and possession, the actual right holder of the monetary funds shall be determined on the basis of the true attribution of rights."
According to the above provisions, the trial practice in Shandong region can be analyzed and obtained, and conditional support is given to the lawsuit of execution objection raised by outsiders. The author further searched the judgment documents of such cases in Shandong region after November 29, 2019, and found that only a few cases were supported during this period, and most of the cases were rejected. At present, the judgment caliber has not been unified.
3. On January 24, 2022, the WeChat public number "Supreme People's Court People's Court" published an article: "Outsiders cannot exclude enforcement on the grounds that the funds in the account of the executed person are misremitted by him." The general content is as follows:
(1) As a special movable property and an unspecified object, currency is its basic attribute. When the bank executes the remitter's intention, the effect of fund delivery occurs. The civil rights arising from the legal transfer of currency are enjoyed by the account owner. The funds remitted to the account of the person subject to execution are the liability property of the person subject to execution and belong to the property available for execution.
(2) Based on the basic principle that currency possession is all, even if the wrong remittance is a fact, for the remitter, the legal consequence of the wrong remittance is that it has the right to claim unjust enrichment for the owner of the remittance account, which belongs to the category of creditor's rights, not the real right. The right to claim unjust enrichment has no priority over other ordinary monetary claims and cannot exclude enforcement.
(3) Although an outsider cannot exclude enforcement on the basis that the funds in the account of the executed person are misremitted by him, if the outsider does have evidence to prove that he or she is misremitted by mistake, he or she may, in accordance with the law, separately claim the return of unjust enrichment to the executed person.
According to the above-mentioned relevant provisions and views, it can be seen that the attitude of the Supreme People's Court in handling such cases has been revised from the tendency to support the execution objection of outsiders to not support it. The author believes that although it can play a role in improving the efficiency of execution and guiding the parties to file unjust enrichment claims, to a certain extent, unjust enrichment claims have little effect on the wrong remitters. Even if the unjust enrichment claim is successful and enters the enforcement phase, it is still an ordinary claim in nature, without any priority effect, and there is great uncertainty as to whether it can be enforced in place.
3. choose a more comprehensive way of relief
The author believes that in the event of an outsider's erroneous remittance, an appropriate litigation plan should be formulated in the light of the specific facts of the case:
1, give priority to the outsider to execute the objection to the lawsuit.
Because the debt of unjust enrichment has the nature of ordinary creditor's rights, it can not achieve the purpose of the outsider to confirm the ownership of the money and exclude the purpose of enforcement, so the priority is to choose the outsider to execute the objection. At the same time, attention should be paid to whether the following factual factors of the case exist:
(1) Whether the outsider can confirm the existence of the fact of the erroneous remittance.
Confirm the causes of remittance, such as the existence of other contractual debts; Confirm the causes of erroneous remittance, such as the high similarity between the account number and account name of the intended payment account and the actual collection account; Timely relief after erroneous remittance, such as immediately informing the other party or filing a civil lawsuit, etc.; Whether there is a corresponding contract or other cooperative relationship between the two parties; The degree to which the remittance amount is consistent with the cooperative relationship between the two parties, etc.
(2) Whether there are other economic transactions between the outsider and the payee.
(3) Whether there is agreement between the outsider and the payee on the remittance
(4) Status of the receiving account at the time of remittance
(5) During the period when the account was closed and the person in the case brought by the outsider, whether other funds entered the account and whether it was mixed with other funds.
After comprehensive consideration of the above factors, it can be decided according to the specific facts of the case whether to give priority to the execution of the objection of the outsider, so as to obtain the support of the people's court, so as to exclude the enforcement.
2. Supplementary filing of unjust enrichment claims
There is a legal risk of being rejected by the court because the cases filed by outsiders of the execution objection and the execution objection are complicated and the trial period is long. If the execution objection and the execution objection are rejected, the time cost of the lawsuit will be increased. Therefore, it is necessary to add the lawsuit of unjust enrichment at the same time, require the executed person to return the wrong remittance funds, and apply for enforcement in a timely manner. However, due to the nature of ordinary claims, there is a high probability that distribution can only be obtained through participation in the distribution process, and there is a legal risk that it cannot be effectively implemented in place.
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