Point of View | Determination Criteria for "Seizure" in Article 28 of the Provisions on Implementation Objection and Reconsideration
Published:
2022-08-24
Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court in the execution of pecuniary claims, the buyer raises an objection to the real estate registered in the name of the person subject to execution, and the following circumstances are met and its rights can be The people's court shall support the exclusion of enforcement: The (I) has signed a legal and effective written sales contract prior to the seizure by the people's court; The (II) has lawfully taken possession of the immovable property before the seizure by the people's court; The (III) has paid the whole price, or has paid part of the price in accordance with the contract and delivered the remaining price for execution in accordance with the requirements of the people's court; The (IV) is not due to the buyer's own reasons for not going through the transfer registration. How does the 1. determine the "seizure time" in "a legally valid written sales contract has been signed before the court seizure"? In (2021) the case of the second instance of the Supreme Law Minzong No. 550, Cheng Yilun and Shenyang Rural Commercial Bank Co., Ltd. Dadong Sub-branch The appellant (plaintiff in the original trial) Cheng Yilun believed that the court of first instance sealed up the house involved in the case for the first time on October 23, 2014, and then sealed up the house involved in the case again on November 15, 2016 due to the expiration of the seal-up period. Therefore, the effect of the first seal-up was eliminated, and the effect of the seal-up of the house involved in the case began on November 15, 2016. The "Commercial Housing Sales Contract" involved in the case was signed on October 31, 2014. After the first seizure expired and before the seizure again, it should be determined that a legal and effective written sales contract relationship had been formed before the seizure. The Supreme People's Court held that the time for the first seizure of the house involved in the case by the People's Court was October 23, 2014. Cheng Yilun advocated that the time for the seizure of the house involved in the case should be November 15, 2016 without facts and legal basis, while Cheng Yilun and Hongyuan Company signed the "Commercial Housing Sales Contract" on October 31, 2014, later than the time for the first seizure of the house involved in the case, therefore, Cheng Yilun's claim does not conform to the provisions of a legally valid written sales contract signed before the people's court seized it. Therefore, Cheng Yilun's claim does not conform to the circumstances stipulated in Article 29 of the Provisions on Objection and Reconsideration of Enforcement, and the court of first instance does not support Cheng Yilun's claim that he enjoys civil rights and interests excluded from enforcement, which is not improper. Therefore, according to the Supreme Court's decision, the "seizure time" in "a legally valid written sales contract has been signed before the court seizure" should be understood as the time of the first seizure of the house involved. Does the seizure in Article 28 of the 2. Provisions on Objection and Reconsideration of Execution only refer to the seizure in execution? Does it include the preservation seizure in litigation? Does it include the waiting seizure? In the retrial case of (2020) Xinmin Zhong No. 149 (2021) Supreme Famin Shen No. 1519 Hu Muxiang and Guoyao Xinjiang Korla Pharmaceutical Co., Ltd. and other applicants for execution objection, Hu Muxiang (defendant of first instance, appellee of second instance and outsider of execution) believes that: (1) property preservation in the lawsuit is a temporary measure, the disputed creditor's rights have not yet been determined and do not naturally enter the execution procedure. The action of the execution objection is for the seizure measures that occurred in the execution procedure, does not involve litigation preservation, and determines the time of the seizure of the house involved in the case shall be subject to the time when the execution ruling is issued. (II) new evidence, the People's Court of Yuyao City, Zhejiang Province (2015) Yong Yu Simin Chuzi No. 12-1 Civil Ruling Letter and the Notice of Assistance in Execution can prove that the house involved in the case was waiting for seizure when it was preserved on March 3, 2015. At this time, the preservation did not take effect, and the second instance determined that the seizure preservation time was wrong on March 3, 2015. The Supreme Court held that Article 28 of the Provisions on Objection to Execution and Reconsideration does not distinguish whether the seizure is a seizure in execution. Whether it is a preservation seizure in litigation or a seizure in execution, it has the effect of publicity, and its effect is not only extended to the seized person, but also to a third party. Moreover, Article 4 of the Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution of the People's Court stipulates that "if property preservation measures are taken before litigation, in litigation and in arbitration, they will be automatically converted into seizure, seizure and freezing measures in execution after entering the execution procedure", the seizure in litigation preservation will be automatically converted into seizure in execution after entering the execution procedure. Hu Muxiang believes that the seizure in Article 28 of the Provisions on Objection to Implementation and Reconsideration is limited to the seizure in the execution procedure, and his application for retrial cannot be established because the law is unfounded, and this court will not support it. During the retrial review, Hu Muxiang applied for retrial with the Civil Ruling No. 12-1 of the People's Court of Yuyao City, Zhejiang Province (2015) Yong Yu Simin Chuzi and the Notice of Assistance in Execution as new evidence, and believed that the seizure of the house involved in the case was waiting for seizure. However, the above documents did not clearly record that the seized house included the house involved in the case. Even if the seizure of the house involved in the case is a waiting seizure, the waiting seizure is an enforcement measure implemented by the people's court based on the effective enforcement ruling. It does not have legal effect before the seizure effect is automatically produced in accordance with the law, but has the legal effect of pre-seizure. Hu Muxiang submitted new evidence in his retrial application to prove that he received the notice of occupancy of the house involved in the case in January 2017 and occupied the house involved in the case. Even if the evidence can prove his claim, because Hu Muxiang's possession of the house involved in the case occurred after the seizure of the house involved in the case, the original judgment found that Hu Muxiang did not comply with the "legal possession of the real estate before the seizure by the people's court" as stipulated in the second paragraph of Article 28 of the "Regulations on Objection and Reconsideration", and it was not improper to determine the facts and apply the law. Hu Muxiang's application for retrial with new evidence sufficient to overturn the original judgment cannot be established, and the court will not support it. Therefore, according to the decision of the Supreme Court, the seizure in Article 28 of the Provisions on Objection and Reconsideration of Enforcement is not limited to the seizure in the enforcement procedure, but also includes the preservation seizure and post-turn seizure in litigation.
Article 28 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court in the execution of pecuniary claims, the buyer raises an objection to the real estate registered in the name of the person subject to execution, and the following circumstances are met and its rights can be The people's court shall support the exclusion of enforcement:
(I) in the People's CourtBefore the seizureHas signed a legal and effective written sales contract;
(II) in the People's CourtBefore the seizurehas lawfully taken possession of the immovable property;
The (III) has paid the whole price, or has paid part of the price in accordance with the contract and delivered the remaining price for execution in accordance with the requirements of the people's court;
The (IV) is not due to the buyer's own reasons for not going through the transfer registration.
How does the 1. determine the "seizure time" in "a legally valid written sales contract has been signed before the court seizure"?
In (2021) the case of the second instance of the Supreme Law Minzong No. 550, Cheng Yilun and Shenyang Rural Commercial Bank Co., Ltd. Dadong Sub-branch
The appellant (plaintiff in the original trial) Cheng yilun believes that:The court of first instance sealed up the house involved in the case for the first time on October 23, 2014, and then sealed up the house involved in the case again on November 15, 2016 due to the expiration of the seizure period. Therefore, the effect of the first seizure was eliminated. The effect of the seizure of the house involved in the case began on November 15, 2016. The "Commercial Housing Sales Contract" involved in the case was signed on October 31, 2014. After the first seizure expired and before the seizure again, it should be determined that a legal and effective written sales contract relationship had been formed before the seizure.
The Supreme Court held:The time for the first seizure of the house involved in the case by the people's court was October 23, 2014. Cheng Yilun advocated that the time for the seizure of the house involved in the case should be November 15, 2016 without factual and legal basis, while the time for Cheng Yilun and Hongyuan Company to sign the "Commercial Housing Sales Contract" was October 31, 2014, later than the time for the first seizure of the house involved in the case, therefore, Cheng Yilun's claim does not conform to the provisions of a legally valid written sales contract signed before the people's court seized it. Therefore, Cheng Yilun's claim does not conform to the circumstances stipulated in Article 29 of the Provisions on Objection and Reconsideration of Enforcement, and the court of first instance does not support Cheng Yilun's claim that he enjoys civil rights and interests excluded from enforcement, which is not improper.
Therefore, according to the Supreme Court's decision, "a legally valid written sales contract has been signed before the court seizure"."Sealed up time" should be understood as the time of the first seizure of the house involved.
Does the seizure in Article 28 of the 2. Provisions on Objection and Reconsideration of Execution only refer to the seizure in execution? Does it include the preservation seizure in litigation? Does it include the waiting seizure?
In the retrial case of (2020) Xinmin Zhong No. 149 (2021) Supreme Famin Shen No. 1519 Hu Muxiang and Guoyao Xinjiang Korla Pharmaceutical Co., Ltd. and other applicants for execution objectionThe retrial applicant (the defendant in the first instance, the appellee in the second instance, and the outsider in the execution case) Hu Muxiang believed that:Property preservation in (I) litigation is an interim measure, and the disputed claim has not yet been determined and does not ipso facto enter the enforcement procedure. The action of the execution objection is for the seizure measures that occurred in the execution procedure, does not involve litigation preservation, and determines the time of the seizure of the house involved in the case shall be subject to the time when the execution ruling is issued. (II) new evidence, the People's Court of Yuyao City, Zhejiang Province (2015) Yong Yu Simin Chuzi No. 12-1 Civil Ruling Letter and the Notice of Assistance in Execution can prove that the house involved in the case was waiting for seizure when it was preserved on March 3, 2015. At this time, the preservation did not take effect, and the second instance determined that the seizure preservation time was wrong on March 3, 2015.
The Supreme Court held that:Article 28 of the Provisions on Objection and Reconsideration of Execution does not distinguish whether the seizure is a seizure in execution. Whether it is a preservation seizure in litigation or a seizure in execution, it has the effect of publicity, and its effect is not only extended to the seized person, but also to a third party.Moreover, Article 4 of the Provisions of the Supreme People's Court on Seizure, Seizure and Freezing of Property in Civil Execution of the People's Court stipulates that "if property preservation measures are taken before litigation, in litigation and in arbitration, they will be automatically converted into seizure, seizure and freezing measures in execution after entering the execution procedure", the seizure in litigation preservation will be automatically converted into seizure in execution after entering the execution procedure. Hu Muxiang believes that the seizure in Article 28 of the Provisions on Objection to Implementation and Reconsideration is limited to the seizure in the execution procedure, and his application for retrial cannot be established because the law is unfounded, and this court will not support it.
During the retrial review, Hu Muxiang applied for retrial with the Civil Ruling No. 12-1 of the People's Court of Yuyao City, Zhejiang Province (2015) Yong Yu Simin Chuzi and the Notice of Assistance in Execution as new evidence, and believed that the seizure of the house involved in the case was waiting for seizure. However, the above documents did not clearly record that the seized house included the house involved in the case.Even if the seizure of the house involved in the case is a waiting seizure, the waiting seizure is an enforcement measure implemented by the people's court based on the effective enforcement ruling. It does not have legal effect before the seizure effect is automatically produced in accordance with the law, but has the legal effect of pre-seizure.Hu Muxiang submitted new evidence in his retrial application to prove that he received the notice of occupancy of the house involved in the case in January 2017 and occupied the house involved in the case. Even if the evidence can prove his claim, because Hu Muxiang's possession of the house involved in the case occurred after the seizure of the house involved in the case, the original judgment found that Hu Muxiang did not comply with the "legal possession of the real estate before the seizure by the people's court" as stipulated in the second paragraph of Article 28 of the "Regulations on Objection and Reconsideration", and it was not improper to determine the facts and apply the law. Hu Muxiang's application for retrial with new evidence sufficient to overturn the original judgment cannot be established, and the court will not support it.
Therefore, according to the decision of the Supreme Court, the seizure in Article 28 of the Provisions on Objection and Reconsideration of Enforcement is not limited to the seizure in the enforcement procedure, but also includes the preservation seizure and post-turn seizure in litigation.
Key words:
Provisions, seizure, enforcement, housing, people's court, time, preservation, reconsideration, sales contract.
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