Supreme People's Court
Selected Views on Enforcement Case Judgments
Volume 14
309. First Civil Division of the Supreme People's Court: Where a People's Court Enforces the Actual Constructor's Debtor's Debtor's Claim Against the Employer, the Subcontractor, Illegal Subcontractor and Other Debtors Have the Right to Raise Objections as the Debtor of the Debtor's Claim Subject to Enforcement (Volume 87)
【Main Points】:
The actual constructor shall request the employer to bear liability within the scope of the outstanding payment of the project education in accordance with Article 43 of the Judicial Interpretation (I) of the Construction Contract of the Construction Project in accordance with Article 43 of the People's Court, on the premise that the contractor owes the subcontractor, the illegal subcontractor the project money and the subcontractor, and the illegal subcontractor owes the actual constructor the project payment. After the employer directly performs the project price debt to the actual constructor, the subcontractor's and illegal subcontractor's construction project price claims against the employer and the actual constructor's construction project price claims against the subcontractor and illegal subcontractor shall be extinguished within the corresponding scope. Paragraph 1 of Article 501 of the Judicial Interpretation of the Civil Procedure Law of the People's Court and Article 26 of the Judicial Interpretation (I) of the Construction Contract of a Construction Project stipulate that the enforcement of the creditor's rights of the actual constructor as the party subject to enforcement against the contractor will directly affect the rights of intermediate debtors such as subcontractors and illegal subcontractors. Therefore, intermediate debtors such as subcontractors and illegal subcontractors have the right to raise objections as debtors of the subject of enforcement claims. Subcontractors, illegal subcontractors, and other intermediaries are "the other person" who has the right to raise objections as provided for in paragraph 2 of Article 501 of the Judicial Interpretation of the Civil Procedure Law. Where the subcontractor or illegal subcontractor raises an objection to the people's court's enforcement of the creditor's rights against the employer by the actual constructor who is the party subject to enforcement, and the applicant for enforcement requests that the objection be partially enforced, the people's court will not support it. If the applicant for enforcement is not satisfied with this, he shall file a separate subrogation lawsuit, and cannot file a lawsuit against enforcement.
310. First Civil Division of the Supreme People's Court: If another person raises an objection to the enforcement of its due creditor's rights, the applicant for enforcement cannot file an enforcement objection lawsuit (Volume 90)
【Main Points】:
Where the people's court enforces the judgment debtor's due creditor's rights against another person, and the other person has objections to the due creditor's rights, and the applicant for enforcement requests that the objection be partially enforced, the people's court will not support it. The person applying for enforcement may separately file a subrogation lawsuit, that is, request the people's court to subrogate the judgment debtor's claim against another person in his own name, or request the person subject to enforcement to claim the creditor's right against others. The people's court shall not accept the objection lawsuit filed by the applicant for enforcement; where it has already been accepted, the lawsuit shall be rejected.
311. First Civil Division of the Supreme People's Court: Effective judgments of the people's courts on the basis of housing sales contracts cannot automatically exclude compulsory enforcement (Vol. 91)
【Main Points】:
The effective judgment of the people's court on the payment of the property based on the sale of the house is not a judgment confirming the ownership of the house by the buyer of the house, and does not directly produce the legal effect of the transfer of ownership, and the buyer of the house does not directly obtain the ownership of the house, so the effective judgment cannot automatically exclude the enforcement of the house involved in the case. To examine whether the buyer of a house can request the exclusion of compulsory enforcement on the basis of an effective judgment on payment of goods, a determination should still be made in accordance with Article 28 or Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts; If the above conditions are not met, enforcement cannot be ruled out.
312. The First Civil Division of the Supreme People's Court: The account borrower cannot rule out compulsory enforcement
In trial practice, if the people's court freezes the account in the name of the person subject to enforcement due to the enforcement of the property of the person subject to enforcement, and the person not involved in the case requests the exclusion of compulsory enforcement on the grounds that he is the borrower of the frozen account and the actual owner of the funds in the account, can the people's court support his litigation claim?
[Discussion and Opinion of the Judges Conference of the First Civil Division of the Supreme People's Court]:
After the account of the person subject to enforcement is frozen by the enforcement court, if a person not involved in the case files an enforcement objection lawsuit on the grounds that he is the borrower of the account and the actual owner of the funds in the account, requesting that the enforcement be excluded, the people's court shall not support it except as otherwise provided by laws and administrative regulations.
Reason:
1. Article 224 of the Civil Code stipulates that "the creation and transfer of movable property rights shall take effect upon delivery, unless otherwise provided by law." "Paragraph 2 of Article 45 of the Measures for the Administration of RMB Bank Settlement Accounts (Order No. 5 of the People's Bank of China [2003]) stipulates that depositors may not lease or lend bank settlement accounts; Paragraph 1, Paragraph 4 of Article 65 also stipulates that depositors shall not lease or lend bank settlement accounts when using bank settlement accounts.
Second, as a special movable property and an unspecified object, currency is its basic attribute, currency possession is ownership, and the account borrower borrows the bank account in violation of regulations, and the resulting risks should be borne by himself.
Third, "laws and administrative regulations provide otherwise" mainly refers to the fact that laws or administrative regulations and other specific arrangements for special accounts have special funds, which do not actually belong to the account holder, and the corresponding funds can be unfrozen through legal procedures. For example, an ecological damage restoration compensation account opened in the name of a relevant foundation or government supervision account.
313. First Civil Division of the Supreme People's Court: Facts such as the payment of the purchase price by the purchaser should be strictly examined in the enforcement objection lawsuit (Volume 75)
【Main Points】:
The opposition lawsuit not only involves the interests of the outsider and the person subject to enforcement, but also the interests of the person applying for enforcement. When hearing enforcement objection litigation cases, people's courts should comprehensively consider the interests of different parties, fully protect the lawful rights and interests of all parties, and apply article 29 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts" to provide special protection for the rights of persons not involved in the case. In particular, with regard to the fact that the price paid by the purchaser exceeds 50% of the total price agreed in the contract, the transfer voucher of the purchase price shall be verified if the purchase price is paid by transfer, and the source of the purchase price shall be verified if the purchase price is paid in cash.
314. First Civil Division of the Supreme People's Court: Can the priority of a construction project be directly claimed in the enforcement procedure without litigation?
Answer: Article 35 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts stipulates that: "If a contractor who has entered into a construction contract with the employer requests that the price of the project contracted by it be compensated in priority for the price of the project discounted or auctioned in accordance with the provisions of Article 807 of the Civil Code, the people's court shall support it. Article 36 of the judicial interpretation further stipulates that "the contractor's priority right to be repaid for the construction project price in accordance with Article 807 of the Civil Code is superior to the mortgage right and other creditor's rights." Therefore, if the court receives an application from the contractor for exercising the priority right of a construction project that has not been confirmed by an effective legal document during the enforcement procedure, it may handle it in two situations:
First, if the person subject to enforcement has no objection to the amount of the project money applied for, and the construction project contract and related materials provided by the contractor are legal and valid after examination by the court, and it is not found that the contractor and the person subject to enforcement maliciously colluded to damage the interests of the state, the collective and the third party, it shall be allowed to be compensated in priority;
Second, if the person subject to enforcement has any objection to the amount of the project money applied for, the court shall inform the contractor to file a separate lawsuit, but the court's procedure for the distribution of the project price shall not continue until the litigation results are reached.
The specific amount of the project money covered by the priority of the construction project shall be determined by the adjudication institution or arbitration institution. This is because, according to the principle of separation of adjudication and execution, the enforcement agency is generally not allowed to adjudicate on substantive issues unless specifically authorized by law or judicial interpretation. From the perspective of legal nature, whether the contractor enjoys the priority right of construction project and the specific amount of the priority part are substantive issues, which should essentially be confirmed by the adjudication institution through litigation procedures or arbitration institutions through arbitration procedures. It is worth mentioning that in judicial practice, it is more common not for the parties to apply for enforcement of the construction project price without litigation, but for the parties to go through the dispute resolution procedure and obtain the enforcement name of the relevant construction price (court judgment, arbitration institution award, etc.), but these enforcement names either do not confirm whether the contractor enjoys the priority of the construction project at all, or do not clarify the specific amount of the priority part of the project payment. In the face of such a name for enforcement, the implementing agency is often in a dilemma. On the one hand, if the enforcement agency confirms the contractor's priority right and the specific amount of the construction project in the enforcement procedure, it is suspected of "pending trial by execution" and "self-trial and self-enforcement", which does not conform to the basic principle of separation of trial and execution, and cannot provide sufficient relief for the rights of the parties. On the other hand, if the specific amount of the priority part is confirmed by the enforcement agency, it is necessary to separately entrust the audit agency or appraisal agency to audit or appraise the project cost and the priority part therein, which will lead to the following problems: first, increase the litigation burden of the parties; second, it affects the efficiency of implementation; Third, it is easy to have contradictory audit results. In fact, in the adjudication document on the dispute over the construction cost, the adjudication agency shall confirm whether the contractor enjoys the priority of the construction project according to the application of the parties; If so, the exact amount should be confirmed. Therefore, at present, when the enforcement of the priority of the construction project is not clearly enforced, the enforcement agency may first inform the contractor to apply for retrial or separate litigation, and after the adjudication agency confirms the amount of the creditor's right with the priority of the construction project, it shall be enforced according to the determined amount.
[Source of opinion]: Q&A on Civil Trial Practice compiled by the First Division of Civil Trial of the Supreme People's Court
315. Executive Board of the Supreme People's Court: If the bidder regrets the auction after delaying the payment of part of the deposit, how to determine the validity of the auction.
[Minutes of the Judges' Conference]: The second opinion is adopted
The issue should be interpreted in the light of the provisions of the law in force. According to the Interpretation of the Civil Procedure Law, if other creditors of the person subject to enforcement who have obtained the basis for enforcement find that the property of the person subject to enforcement cannot pay off all the creditor's rights, they may apply to the people's court to participate in the distribution, and submit the request before the execution of the property of the person subject to enforcement is concluded. In this case, although the property of the person subject to enforcement has been transferred, the auction money has not yet been distributed, and it is still in the court account, which belongs to the property of the person subject to enforcement, and the creditor's rights have not been paid off. The next step of the enforcement court's distribution of the case money is still a stage of enforcement, and the enforcement has not yet been concluded. Therefore, the applications of other creditors to participate in the distribution before the distribution of the case money were not overdue.
[Source of opinion]: "Guidance on Enforcement Work" (Volume 74) edited by the Executive Bureau of the Supreme People's Court
316. First Circuit Court: Determination of the Qualification of the Third Party to Revoke the Subject of the Lawsuit (Minutes of the 9th Judges' Conference of the First Circuit Court of the Supreme People's Court in 2018)
【Legal Issues】:
Does Bank A have the standing to file a third-party revocation lawsuit?
[A said]: Bank A has no legal interest in the outcome of the original lawsuit, and it does not have the subject qualification to file a third-party revocation lawsuit.
The creditor's right enjoyed by Bank A against Company C is an ordinary creditor's right, not a creditor's right that should be given special protection in accordance with the law, and the exercise of this right will not be affected by the civil judgment of the original lawsuit, and the interest thus formed is only a de facto indirect interest, which is not legally implicated with the original lawsuit and cannot be determined as a legal interest. Therefore, Bank A does not have the qualifications to file a lawsuit for revocation by a third party.
[Argument B]: Bank A has a legal interest in the outcome of the original lawsuit, and has the subject qualification to file a lawsuit for revocation by the first party.
Before the original lawsuit was formed, Bank A had applied to the court to freeze the funds in the account involved in the case, and the court had deducted the funds after the judgment, and the original lawsuit ruled that Bank B had the priority right to be compensated for the funds in the account involved in the case, which affected the interests of Bank A and indeed had a legal interest in it.
[Judges' Conference Opinion]: Cai Jia said.
317. Guiding Case No. 125: Chen Zaiguo v. Liu Rongkun, Guangdong Shantou Fishery Products Import and Export Company, et al., applying for revocation of auction enforcement supervision
[Summary of the trial]:
Online judicial auction is a judicial auction conducted by the people's court through an internet auction platform, and is a compulsory enforcement measure. People's courts shall apply the provisions of the Civil Procedure Law and relevant judicial interpretations to handle disputes arising from online judicial auctions.
Case No.: :(2017) Supreme Court Zhi Jian No. 250
318. Reference case: Taizhou A Real Estate Co., Ltd. v. Zhang Moumao et al., a dispute over the invalidity of the contract
[Summary of the trial]:
The parties involved in the Enforcement Settlement and Guarantee Agreement violated the stipulation that the creditor's rights of outsiders to the case should be protected in priority by reducing the repayment amount confirmed by the effective judgment through settlement, so the original judgment found that the civil juristic acts of the parties to the above-mentioned settlement agreement maliciously colluding to harm the legitimate interests of others were invalid and improper.
Case No.: :(2021) Supreme Law Min Shen No. 6599
319. Reference case: Panzhou company and Guizhou company A and other enforcement supervision cases
[Summary of the trial]:
For enforcement funds that have been transferred, remitted, or delivered in cash to the applicant for enforcement, they do not belong to the property of the person subject to enforcement because the ownership of the property rights has changed. If the bank deposits and other enforcement funds that have been deducted from the account of the enforcement court, but the transfer, remittance or cash delivery to the applicant for enforcement has not been completed, the ownership of the property rights has not changed, and it still belongs to the property of the person subject to enforcement, and the enforcing court shall not pay it to the applicant for enforcement after receiving the ruling of the court to which it is transferred, but shall transfer it to the court or administrator that accepts the bankruptcy case and include it in the bankruptcy procedure for unified distribution. The standard for judging whether the proceeds obtained through auction, sale and other enforcement measures are no different from those for which the money is executed through other means is the "property of the person subject to enforcement", and the criterion for determining whether there is a change in the ownership of property rights should be used as the criterion to determine whether it should be included in the bankruptcy proceedings for unified distribution.
Case No.: :(2023) Supreme Court Zhijian No. 78
320. Reference case: A bank Hohhot branch executes a reconsideration case
[Summary of the trial]:
Effective legal documents in which parties apply to the people's court for enforcement shall have clear and specific payment content, otherwise the requirements for enforcement are not met. The main text of the effective judgment determines the subject matter of the pledge involved in the case, the scope of the exercise of the pledge and the specific amount calculation method, but because the liquidated damages to be borne by the person subject to enforcement in the calculation method are not clear, and do not meet the statutory circumstances that the payment content determined on the basis of enforcement should be specific and clear, the conditions for enforcement are not met at present. After the liquidated damages are determined and the payment content of the basis for enforcement is clarified, the applicant for enforcement may apply for enforcement again.
Case No.: :(2021) Supreme Court Zhi Fu No. 22
321. Reference case: A construction company in Beijing applied to a court for a lawsuit for wrongful enforcement of state compensation
[Summary of the trial]:
When applying Article 38 of the State Compensation Law of the People's Republic of China and Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Judicial Compensation Cases in Civil and Administrative Litigation, the situation where the enforcement period is long, the whereabouts of the person subject to enforcement is unknown, there is no property available for enforcement, and the current enforcement procedure has been terminated shall be understood as "other circumstances" as provided for in Article 19.
Case No.: :(2020) Supreme Law Commission Compensation Supervisor No. 273
322. Gazette case: Shenyang Branch of Bank of Dalian v. Fushun Yanfeng Building Materials Co., Ltd. and Zheng Kexu Case
[Summary of the trial]:
The drawer of the acceptance bill deposits the deposit of the deposit to the special account of the bank acceptance deposit as a guarantee for the acceptance bill business, and the nature of the act belongs to the establishment of a money pledge. When the drawer fails to pay the due bill and the bank fulfills the advance obligation, the bank has the right to be repaid in priority for the deposit based on the pledge. The pledge is a security interest, which is sufficient to preclude the enforcement of the claim in another case.
Case Number: :(2015) Min Ti Zi No. 175
Source of the case: Gazette of the Supreme People's Court, No. 10, 2016
323. Is the interest on the debt during the period of delay in performance calculated on the basis of monetary debts, including liquidated damages for overdue payment?
[Summary of the trial]:
On the issue of whether liquidated damages for late payment determined by effective legal instruments should be used as the basis for calculating interest on delayed performance of obligations. According to article 253 of the Civil Procedure Law, if the person subject to enforcement 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 for the period of delayed performance shall be doubled. As an indirect enforcement measure, the interest system for delayed performance is different from the liability for breach of contract that should be borne by the person subject to enforcement as determined by the effective legal document, and the premise for paying the interest on the debt during the period of delay in performance is that the person subject to enforcement fails to perform the obligation to pay money within the period specified in the legal document. According to the Reply of the Supreme People's Court on Issues Concerning the Calculation of Interest on Debts During the Period of Delayed Performance in Enforcement Work, which came into effect on May 18, 2009, the calculation of interest on debts during the period of delayed performance shall be based on the monetary debts determined in the legal documents. In this case, the enforcement basis determined the monetary obligations of the person subject to enforcement to pay the price of goods and liquidated damages for late payment, and until the expiration of the performance period determined in the legal documents, the monetary obligations to be performed by the person subject to enforcement include the payment for goods and the corresponding liquidated damages for late payment.
Case Number: :(2017) Supreme Court Zhijian No. 21
324. For debts arising during the marriage, when the property of the debtor is enforced, and the applicant for enforcement requests to add the former spouse of the person subject to enforcement as the person subject to enforcement, the court will not support it - the case of company enforcement supervision
[Summary of the trial]:
The change or addition of the person subject to enforcement in the enforcement procedure is essentially a direct determination through the enforcement procedure that the person outside the case other than the effective legal document bears the substantive liability determined in the effective legal document, which has a great impact on the parties to the enforcement case, and must follow the principle of legalism, that is, it should be limited to the scope of addition expressly provided for in laws and judicial interpretations, and cannot be added beyond the statutory circumstances, nor can it be directly cited from the relevant substantive adjudication rules for addition. However, if the people's court rejects the applicant's request to add the spouse of the person subject to enforcement as the person subject to enforcement, it does not determine whether the debt borne by the person subject to enforcement is a joint debt of the husband and wife or whether the spouse of the person subject to enforcement should bear the debt, and the applicant for enforcement may seek relief through other legal procedures.
Case No.: :(2015) Zhi Shen Zi No. 111
End of this topic.
Transferred from the same judgment rule for similar cases
![Article 56 of the Interpretation of the Civil Code on Guarantees[fig]](data:image/gif;base64,R0lGODlhAQABAIAAAP///wAAACwAAAAAAQABAAACAkQBADs=)