Zhongcheng Qingtai Real Estate Perspective: Answers to Several Questions of the People's Court of Shandong High Court on the Trial of Cases of Objection to Execution

In the process of real estate cooperative development and construction, if the person to be executed is a real estate development enterprise, and the real estate to be executed is a commercial house registered under its name, it is not uncommon for the house buyer to raise execution objections to the commercial house registered under the name of the real estate development enterprise; secondly, in the process of commercial house transaction, it often takes a long period from the signing of the contract to the completion of the real estate transfer. In this process, it is common for houses to be sealed up or traded houses to be sealed up by other creditors due to the disconnection of houses. Under the above circumstances, how outsiders should file enforcement objections and enforcement objections will be given a glimpse of the "Answers to Several Questions on Trial of Enforcement Objections" issued by the First Civil Court of Shandong High Court.

Attached: Answers to Several Questions of the People's Court of Shandong High Court on the Trial of Cases of Objection to Execution

In order to properly hear cases of objection to execution, unify the standards of judgment, and improve the quality and efficiency of trials, in accordance with the provisions of relevant laws and judicial interpretations, the answers to several questions concerning the trial of cases of objection to execution are as follows:

1. an outsider makes a claim for confirmation of rights and payment at the same time in the enforcement objection, how to deal with it?

A: If an outsider, in the case of an objection to the execution, makes a claim for confirmation of ownership and payment directly related to the civil rights and interests on which the outsider claims to exclude the execution, the people's court may hear it together, and whether the relevant request is supported and whether the execution is excluded shall be made clear in the specific judgment. Other requests made by outsiders that are not directly related to the civil rights and interests excluded from enforcement shall not be dealt with together.

How to deal with the termination of the enforcement procedure during the trial of 2. enforcement objection cases?

Answer: During the trial of the case of execution objection, the execution procedure is terminated due to the cancellation of the application by the applicant for execution and the realization of the creditor's rights of the applicant for execution. If the plaintiff does not withdraw the lawsuit, it shall be ruled to dismiss the lawsuit according to law.
   

3. an outsider files an enforcement objection on the grounds that he has the right to priority compensation, how to deal with it?

Answer: If an outsider files a claim for execution objection to exclude execution on the grounds that he has a legal priority such as a security right in the subject matter of execution and a priority right to be paid for the construction project price, since the legal priority only affects the order of payment and does not belong to the reason for excluding execution, the outsider should generally be informed to resolve the matter through the execution objection reconsideration procedure or the distribution plan objection procedure.
    

4. an outsider files an enforcement objection based on the lease right, how to deal with it?

A: If an outsider, on the grounds that there is an outstanding housing lease relationship with the person being executed, excludes execution on the basis of a leasehold request, the case shall be treated differently:

If the (I) lessee has objections to the enforcement court's denial of the establishment or existence of the lease right in the course of enforcement, and requests to prevent the transfer of possession on the grounds that it enjoys the lease right to the house being executed, the people's court shall accept it;

(II) the lessee has signed a legal and effective written housing lease contract with the executed person before the execution of the house seizure, and has paid the rent in accordance with the agreement and actually legally occupied and used it, it shall be supported;

(III) the lessee has signed a legal and effective written housing lease contract with the executed person before the establishment of the mortgage right of the executed house, and has paid the rent in accordance with the agreement and actually legally occupies the use, it shall be supported.
   

How is Article 28 of the 5. "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts" understood and applied?

Answer: If the buyer files a lawsuit against the execution of the real estate registered in the name of the person subject to execution, Article 28 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court" shall be applied. A request for an outsider to exclude enforcement shall be supported if the four conditions set out in this article are met:

(I) the outsider and the person subject to execution have signed a legal and valid written housing sales contract before the real estate is sealed up;

(II) the outsider has actually taken possession of the immovable property before the immovable property is seized;

(III) outsiders have paid the full price. The outsider shall provide evidence such as bank transfer vouchers, and if the outsider claims that the payment is a large amount of cash delivery but there is no other evidence to support it, the fact of payment shall not be confirmed in principle.

(IV) outsiders did not go through the transfer registration procedures for their own reasons. If the outsider has submitted a request for transfer registration to the seller, or submitted the application materials for transfer registration to the housing registration institution, and failed to handle the transfer registration due to other reasonable and objective reasons, it can be regarded as "not due to the outsider's own reasons".
   

How is Article 29 of the 6. "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts" understood and applied?

Answer: If the buyer files an objection to the execution of the commercial housing registered under the name of the executed real estate development enterprise, Article 29 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objection and Reconsideration Cases by the People's Court" shall be applied. A claim by an outsider to exclude enforcement shall be supported if the three conditions set out in this article are met:

(I) the outsider and the executed person have signed a legal and valid written sales contract before the house is sealed up;

(II) outsiders buy commercial housing for living and the housing area is to meet the basic living needs;

(III) the price paid by an outsider exceeds 50% of the total price agreed upon in the contract, or the price paid is close to 50%, and the remaining price has been paid to the applicant for enforcement in accordance with the contract or delivered for enforcement at the request of the people's court.
   

How to deal with an 7. case where an outsider files an enforcement objection based on a mortgage?

Answer: For the expiration of the debt repayment period between the outsider and the person subject to execution, the outsider has signed a legal and effective house-to-house debt settlement agreement with the person subject to execution before the property is sealed up and actually legally occupies the executed house, and there is no evasion In cases such as execution or evasion of debts, 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 Courts by the People's Courts. The people's court shall conduct a substantive examination on whether the creditor's rights and debts involved in the mortgage with housing are legal and effective, and pay attention to whether the case involves the rights and interests of consumers, the protection of vulnerable groups, the basic survival rights of citizens and other factors, and comprehensively review and judge the legal effect and legal consequences of the mortgage with housing.

If the outsider is the contractor of the construction project or the actual builder, and there is a legal and effective construction contract with the executed person, and the repayment period of the project payment has expired, the outsider has entered into a legal and effective debt-for-property agreement with the executed person based on the construction project price, according to which the corresponding consideration has been paid, and the request to exclude the execution can generally be supported.
   

8. an outsider files an enforcement objection lawsuit based on the status of the co-owner of the subject matter of enforcement, how to deal with it?

A: If the parties have no dispute over the subject matter of execution as common property, the common share can be clearly distinguished, and the subject matter can be divided, the outsider can request the exclusion of execution for the corresponding share. If the execution of the subject matter is indivisible or the division will result in a significant impairment of value, execution cannot be excluded, and the case may realize the right in the execution procedure by dividing the price or exercising the right of first refusal after the realization of the subject matter.
   

9. an outsider files an objection to the execution of a motor vehicle, ship and other special movable property, how to deal with it?

Answer: If the buyer claims to have civil rights and interests in special movable property such as motor vehicles and ships registered in the name of the person subject to execution, and requests to exclude execution, and at the same time meets the following three conditions, it shall be supported:

(I) an outsider has signed a legal and valid sales contract with the person subject to execution before the seizure;

(II) the outsider has paid the corresponding price before the seizure;

(III) outsiders have actually occupied and used the movable property before the seizure.

10. an outsider files an enforcement objection lawsuit on the grounds that there is a motor vehicle or ship affiliated business relationship with the person subject to execution, how to deal with it?

Answer: If the buyer claims that there is an affiliated business relationship with the person subject to execution for special movable property such as motor vehicles and ships registered in the name of the person subject to execution, it shall be dealt with separately:

(I) motor vehicles and ships are purchased by outsiders, operated under the name of the person subject to execution, and can confirm that the outsiders are the actual right holders, they shall be supported;

(II) motor vehicles and ships are purchased by the person subject to execution and handed over to outsiders for affiliated operation, they will not be supported.
 

Eleven, the outsider claims that the executed person's account funds are the wrong remittance, the implementation of the objection to the lawsuit, how to deal?

A: For the attribution of rights to monetary funds, the cash holder and bank account registrant should generally be presumed to be the right holder based on the apparent state of 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.
   

12. How to deal with a lawsuit filed by an outsider based on the status of an anonymous shareholder?

Answer: "The provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts" Article 25, paragraph 1, paragraph 4, stipulates: "Equity shall be determined in accordance with the registration of the administrative department for industry and commerce and the information publicized by the enterprise credit information publicity system." If an outsider claims a right on the basis of his status as an anonymous shareholder and requests the exclusion of enforcement, he may refer to the provisions of this article.
   

Thirteen, the parties against the enforcement of the enforcement of the action, how to deal?

Answer: If the parties only file an enforcement objection against the enforcement act, and do not request the exclusion of the enforcement of the substantive rights and interests of the subject matter of the enforcement, the ruling shall not be accepted; if it has been accepted, the ruling shall reject the prosecution and inform the parties to follow the provisions of Article 225 of the the People's Republic of China Civil Procedure Law through the enforcement objection reconsideration procedure.

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