"Property preservation" refers to the people's court's adoption of compulsory measures restricting the disposition of the parties' property or the subject matter of the dispute before or after the interested parties file a lawsuit, in order to ensure that the effective judgment can be enforced in the future or to avoid property losses.
Netizen consultation:
Under what circumstances can I apply for property preservation?
Lawyer answers:
The conditions for applying for property preservation are as follows:
1) The situation must be urgent, and failure to take property preservation will cause irreparable damage to the applicant's legitimate property rights and interests;
2) The interested party must submit an application to the people's court where the property is located, and the court shall take the initiative to take property preservation measures without its authority;
3) The applicant must provide a guarantee, otherwise the court will reject the application;
4) The case must have payment content, which is a lawsuit for payment;
5) must be made by the conduct of one of the parties that is likely to make the judgment difficult to enforce;
6) The application must be made in the course of the proceedings;
7) The applicant provides a guarantee.
Lawyer adds:
The difference between pre-litigation property preservation and litigation property preservation:
1. The subject of the application is different. Pre-litigation property preservation is submitted to the people's court by the interested party before the lawsuit is filedProperty preservation in litigation is when a party applies for property preservation during the litigation. The applicant shall submit an application for property preservation in litigation, and when necessary, the people's court may employ preservation measures ex officio. An application for pre-litigation property preservation is submitted by an interested party, and the court must not employ preservation measures ex officio.
2. The time for applying for property preservation is different. An application for property preservation in litigation shall be submitted after the case is accepted and before the judgment takes effect;An application for pre-litigation property preservation must be filed with the competent people's court before filing a lawsuit.
3. The requirements for whether the applicant provides a guarantee are different. Where the people's court orders the provision of a guarantee for property preservation in litigation, the applicant must provide a guarantee, and if the guarantee is not provided, the application is rejected. If the applicant is not ordered to provide a guarantee, the applicant may not provide a guarantee, and if the people's court takes preservation measures ex officio, the relevant interested parties may also not provide a guarantee. For pre-litigation property preservation, the applicant must provide a guarantee, and if the guarantee is not provided, the application shall be rejected.
Article 103 of the Civil Procedure Law of the People's Republic of China: In cases where it may be difficult to enforce a judgment or cause other harm to a party due to the conduct of one of the parties or other reasons, the civil court may, upon the application of the other party, rule to preserve the property, order the party to perform certain acts, or prohibit the party from doing certain acts;Where the parties do not submit an application, the people's court may also rule to adopt preservation measures when necessary.
The people's court may order the applicant to provide a guarantee when taking preservation measures, and if the applicant does not provide a guarantee, rule to reject the application.
After the people's court accepts the application, it must make a ruling within 48 hours if the situation is urgent;Where a ruling is made to employ preservation measures, enforcement shall begin immediately.
Profile of Mr. Pan Wentao
Shandong Yiheng (Weifang) Law Firm is a practicing lawyer. He graduated from Shandong University in 2005 with a major in law, passed the national judicial examination in 2006, and has more than 10 years of experience in legal work and corporate management of Fortune 500 companies, listed companies and companies to be listed, and has rich experience in handling corporate disputes.