Zhu Mouhua's case: an outsider's enforcement objection case
- The application of the principle of proportionality in the auction of a single house
keyword
- execute
- Enforcement Objections
- The principle of proportionality
- Sole Housing Auction
- Basic rights of subsistence and residence
Basic facts of the case
In the case of the court enforcing the fine of the person subject to enforcement, Zhu Mouhua, who was not involved in the case, raised a written objection, saying that the court seized Qin's house in a room in Liujiang District, Liuzhou City, and planned to auction the above-mentioned house to pay the fine and illegal gains of the person subject to enforcement. The above-mentioned house is the only residential property jointly owned by the person subject to enforcement, Qin Mouhua, and Zhu Mouhua, who is not involved in the case, as husband and wife, believes that the court's compulsory enforcement act has seriously infringed on the basic survival and residential rights and interests of the outsider and the three minor children raised by the outsider, and is dissatisfied with the court's decision on the joint real estate, and hereby raises an objection to this. The court is requested not to enforce the (2022) Gui 0204 Zhi No. 445 Enforcement Ruling, and lift the seizure and auction of a room in Liujiang District, Liuzhou City.
After the trial, it was ascertained that on April 10, 2013, Zhu Mouhua, who was not involved in the case, and Qin, the person subject to enforcement, jointly purchased a house in Liujiang District, Liuzhou City, with an area of 98.23 square meters, a total purchase amount of 489081 yuan, a down payment of 30.07% of the total price, and 69.93% of the total house price, that is, 342,000 yuan, for bank mortgage loans. The house is the only real estate of Zhu Mouhua, who is not involved in the case, and Qin, who is subject to execution. The rights of the house involved in the case registered in the real estate register are Qin and Zhu. Zhu Mouhua, who is not involved in the case, and Qin Mouhua, who is not involved in the case, have three children, two of whom are minor children studying in nearby schools.
On December 29, 2021, the Liunan District People's Court of Liuzhou City, Guangxi Zhuang Autonomous Region (hereinafter referred to as the Liunan Court) sentenced Qin to one year in prison and a fine of 60,000 yuan for the crime of selling fake and shoddy products. Because Qin failed to pay the fine, the Criminal Trial Division of the Liunan Court transferred it for compulsory enforcement. In the case of the execution of the fine of the person subject to enforcement, the court ruled to seal the house in room 801 involved in the case, and issued an enforcement ruling (2022) Gui 0204 Zhi No. 445, ruling that the house in room 801 involved in the case should be auctioned.
On July 8, 2022, the Liunan Court issued the (2022) Gui 0204 Zhiyi No. 37 Enforcement Ruling, ruling that the objection request of Zhu Mouhua, who was not involved in the case, was rejected. On September 13, 2022, the Intermediate People's Court of Liuzhou City, Guangxi Zhuang Autonomous Region, issued the (2022) Gui 02 Zhi Fu No. 60 Enforcement Ruling, ruling to suspend the auction of a property in Liujiang District, Liuzhou City.
Reasons for the Adjudication
The effective judgment of the court held that according to Article 4 of the Provisions of the Supreme People's Court on the Sealing, Seizure and Freezing of Assets in Civil Enforcement by the People's Courts, "the people's court may seal up the residential houses necessary for the livelihood of the person subject to enforcement and his or her dependents, but shall not auction, sell or redeem debts". With regard to the appropriateness of the auction, the auction of the house involved in the case did not achieve the purpose of enforcement. In view of the fact that the house involved in the case is the only residence necessary for the reconsideration applicant's life, the small size of the house, the low value of the actual capital contribution, and the bank mortgage, if it is disposed of by auction and the corresponding share of 50% of the bank mortgage and the reconsideration applicant is paid, and then a resettlement plan is made to ensure the livelihood of the person subject to enforcement and the family members he supports, there is not much left, and the fine of 60,000 yuan may not be enforced. Regarding the necessity of auction, the auction of the house involved in the case is not a way to cause the least harm to the person subject to enforcement. Now that the person subject to enforcement, Qin X has been released from prison, the auction may be suspended, and the person subject to enforcement shall provide an enforcement guarantee or make other performance plans. With regard to the measurability of the auction, the damage caused by the auction of the property in question was disproportionate to the purpose of the execution. The applicant for reconsideration asserted that the house involved in the case was purchased by him and the person subject to enforcement during the existence of the marriage, and was the only living house jointly owned by the husband and wife on an average basis, that the two had no other real estate, and that the daily occupants of the house involved in the case were the person subject to enforcement, the applicant and their three minor children, two of whom were enrolled in the nearest local school, and were the only residence necessary for the family of five to live. The area of the house involved in the case is 98.23 square meters, and 69.93% of the total house price needs to be mortgaged by the bank, and the house involved in the case is a residential house and ordinary necessities necessary to ensure the minimum standard of living of the reconsideration applicant, the person subject to enforcement and their co-dependent families, and the auction of the house involved in the case will damage the basic rights of the reconsideration applicant and his family. In summary, the reasons for the reconsideration applicant to release the seizure and auction of the house involved in the case are partially established. This court upholds the reconsideration applicant's claim that the auction of the house involved in the case is necessary for the life of the person subject to enforcement and the family members he supports, and that the auction of the house necessary for him or her to be suspended.
Summary of the trial
When auctioning the only house in the name of the person subject to enforcement, the appropriateness, necessity and measurement of the auction shall be reviewed in turn in accordance with the principle of proportionality. The three sub-principles of the principle of proportionality can be used to standardize and review auction behavior in a "three-step method". First, it is difficult to achieve the purpose of enforcement in place by auctioning the house involved in the case, which does not conform to the principle of appropriateness; Second, where other alternative enforcement measures may be chosen to reduce the infringement of rights and interests, the principle of necessity is not met; Third, the harmful consequences of the auction of the house involved in the case to the rights and interests of the person subject to enforcement and persons not involved in the case are disproportionate to the purpose of the auction, which does not conform to the principle of measurement. If one of them does not meet the requirements, it is not appropriate to auction the only house in the name of the person subject to enforcement, so as to protect the basic survival and residence rights and interests of the person subject to enforcement.
Associate indexes
Articles 4 and 12, paragraph 1 of the Provisions of the Supreme People's Court on the Sealing, Seizure and Freezing of Assets in Civil Enforcement by the People's Courts
Article 20, paragraph 1 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
Enforcement basis: Criminal Judgment of Liunan District People's Court of Liuzhou City, Guangxi Zhuang Autonomous Region (2021) Gui 0204 Xingchu No. 615 (December 29, 2021)
Enforcement objection: Liunan District People's Court of Liuzhou City, Guangxi Zhuang Autonomous Region (2022) Gui 0204 Zhiyi No. 37 (July 8, 2022)
Enforcement Reconsideration: Liuzhou Intermediate People's Court of Guangxi Zhuang Autonomous Region (2022) Gui 02 Zhifu No. 60 (September 13, 2022)