Before the promulgation of the Provisions on Reconsideration of Enforcement Objections, how did the

This is the 235th article in the total of case study articles on the combination of civil entities and procedures

The subject matter is Article 159 of the Enforcement Objection Lawsuit of an Outsider and Article 49 of the Real Estate.

Application of the law: Article 17 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

Where the person subject to enforcement purchases the property of a third party that needs to be registered for transfer, and has already paid part or all of the price and is actually in possession of the property, and although the property rights transfer registration formalities have not been completed, the person applying for enforcement has already paid the remaining price to the third party or the third party agrees that the remaining price will be paid in priority from the sale price of the property, the people's court may seal, seize or freeze it.

The yellow handwriting is basically a third person, either the plaintiff or the defendant. Generally, it is the person subject to execution

The red handwriting indicates that the defendant or plaintiff in the dispute will lose the case or lose the case in part

In a security relationship, the guarantee liability to the creditor should be performed within the scope of its own liability property. In this case, the liability property usually refers to the scope of the general liability property of the secured party.

When the disputed property is a special property, such as a special property that was seized in a lawsuit against the execution of an objection by an outsider. Since the claims belong to the same rank and there is no order, how will the court decide?

Today, we will analyze the theoretical principles of how to deal with general liability property and special liability property in cases through a case of revision of judgment by the Supreme People's Court

Defining the scope of liability property is a common practice to preserve the rights of the debtor or guarantor. Under normal circumstances, the property of liability does not have a specific direction. Creditors in equal rank may demand equal performance from the debtor or guarantor at the same time.

When dealing with creditor-debtor relationships at the same level, but the laws based on them belong to different fields. In this case, if the different classifications of the property for which liability is not distinguished, it will be difficult to evaluate.

In the case of an objection to the enforcement of an outsider, the property in dispute is usually characterized by the explicitness, particularity, and exclusivity of the property pointed to by the outsider who is obstructed from enforcement.

It also stems from the fact that the above-mentioned outsiders have a single remedy path and property direction. Therefore, under the framework of considering the facts of the case and complying with other legal provisions, the court should rule that the person not involved in the case has the power to exclude enforcement.

July 1, 2013Chen Xinling and Chen Shengming (the third party in the first instance, second instance and retrial of the lawsuit against the enforcement objection of an outsider).Sign the Divorce Agreement. Divorce by agreement, agreeing on the return of a certain houseChen XinlingAll, the bank mortgage loan is jointly borne by both parties in the future of the house transactionChen ShengmingUnconditional cooperation is required.

August 11, 2013Chen Shengming, Chen XinlingAs ** directionLiu Aisheng (obstruction of execution) (plaintiff of the first instance, appellant of the second instance, and applicant for retrial of the lawsuit against the enforcement objection by an outsider).The house involved in the sale of the case. The total purchase price is 5.9 million yuan; Liu AishengA deposit of 200,000 yuan should be paid on the day of signing the agreement, and a total of 3.8 million yuan should be transferred in five transactions from August 12 to August 22, 2013Chen Xinlingbank account, a total of 4 million yuan for the purchase of the house.

On July 18, 2014, the Xiamen Intermediate People's Court basedDu Danqing (the executor of the application for permit) (the defendant of the first instance, the appellee of the second instance, and the respondent of the retrial of the objection to the execution of the case by an outsider).As a lender withChen ShengmingA judgment was rendered for the existence of a guarantee relationship in the loan contract of another personShengda CompanyRepaymentDu DanqingBorrowing 3 million yuan and interest, Zhang AiminChen Shengming, Zhang Lei and others are jointly and severally liable for the above debts.

On October 22, 2013, the Court shall:Du DanqingThe application for property preservation was sealedChen Xinling and Chen ShengmingAgreed premises.

Liu AishengFiling an objection to interim measures.

The court dismissed itLiu AishengObjections.

Liu AishengDissatisfied, he filed a lawsuit against the execution of the case by an outsider.

Request: Immediately stop the enforcement and lift the seizure and freezing of the house.

Court of First Instance: Xiamen Intermediate People's Court (2014) Xia Min Chu Zi No. 1440

Result: Liu Aisheng's claim was dismissed

Rationale:

1.Internal property agreements shall not be opposed to external preservation

The house was the joint property of Chen Shengming and Chen Xinling when the loan guarantee relationship between Du Danqing and Chen Shengming occurred on June 18, 2013, and the division of the ownership of the house between Chen Shengming and Chen Xinling at the time of their divorce on July 1, 2013 was an act of internal property division and could not be used against Du Danqing, and Du Danqing still had the right to demand that property preservation measures be taken for the share of the house belonging to Chen Shengming.

2.It does not comply with the provisions of Article 17 of the "Provisions on Seizure".

In this case, although Liu Aisheng paid part of the price of the disputed property and took possession of the disputed property, the property rights of the disputed property in this case were still registered in Chen Shengming's name, and Liu Aisheng had not paid the full price of the disputed property, which did not fall under the circumstances that the court could not seal, seize or freeze.

Liu Aisheng appealed

Court of Second Instance: Fujian High Court (2015) Min Min Zhong Zi No. 853

Result: The appeal was dismissed and the original judgment was upheld

Rationale:

After Liu Aisheng, Chen Shengming and Chen Xinling signed the Real Estate Sale and Purchase Agreement on August 11, 2013, they paid 4 million yuan for the purchase of the house, and when the court of first instance seized the house on December 2, 2013, there was still 1.9 million yuan of the purchase price unpaid, that is, the purchase price of 5.9 million yuan could not be paid in full. Liu Aisheng's request does not meet the conditions for lifting the seizure as provided for in article 17 of the "Provisions on Seizure".

Liu Aisheng applied for a retrial

Retrial Court: (2017) Zui Gao Fa Min Zai No. 355

Results:

1. Revoke the first-instance judgment;

2. Revoke the second-instance judgment;

3. The disputed property shall not be enforced

Rationale:

1. The difference between Du Danqing and Liu Aisheng as creditors

2. Liu Aisheng has the right to claim for the removal of the nuisance or the elimination of the danger on the basis of lawful possession.

Article 462 of the Civil Code.

If the immovable or movable property in possession is encroached upon, the person in possession has the right to request the return of the original property; For acts that impede possession, the possessor has the right to request that the nuisance be removed or the danger eliminated; Where damage is caused by encroachment or obstruction, the person in possession has the right to claim compensation for damages in accordance with law.

If the possessor's right to claim the return of the original thing is not exercised within one year from the date of the misappropriation, the right to claim shall be extinguished.

3. The seizure of the house involved in the case directly harmed Liu Aisheng's lawful rights

Although Chen Shengming's act of giving the house involved in the case to Liu Aisheng and obtaining the price of the house objectively caused part of his liability property to be converted from physical form to monetary form, the scope of his liability property was not improperly derogated from because of this, and Du Danqing's rights as a creditor were not impaired as a result, and he still had the right to claim the corresponding rights for Chen Shengming's due share of the house price.

On the contrary, when the Real Estate Sale and Purchase Agreement involved in the case was legally established and had been actually performed, the seizure of the house involved in the case and the use of it as the subject of the enforcement of Du Danqing's creditor's rights not only objectively and improperly expanded the scope of Chen Shengming's liability property, but also directly damaged Liu Aisheng's legitimate rights.

4. Errors in the application of law

Article 17 of the Provisions on Attachment is the criterion for judging the formal examination of the objection of the outsider in the enforcement procedure, not the final confirmation of the rights of the outsider, and the content of the substantive civil rights of the outsider is the scope of the trial of the enforcement objection. The court of first instance used this provision as the legal basis for hearing the case, confusing the difference between the examination of an enforcement objection and the trial of an enforcement objection.

This case brings us a number of practical summaries, which are explained as follows:

1. The judicial interpretation of the Provisions on Seizure falls within the scope of formal review

1.When an outsider raises an objection to enforcement, the court shall adopt the provisions of the Provisions on Attachment when judging the facts.

2.The Provisions on Attachment cannot be invoked as a legal provision for value judgment in the specific trial of an outsider's enforcement objection.

3.The Provisions on Attachment are an either/or factual judgment provisions, which can only be applied to the factual judgment before the court accepts the lawsuit for enforcement objection by an outsider.

There is a specific article on this issue that has been clarified in the previous article, and you can read it in a link. The enforcement rights and interests asserted by the parties to the SPC cannot exceed the rights and interests enjoyed by the person subject to enforcement.

2. Liability property can be distinguished from the general and the special.

There are the following good points to draw from the above distinctions.

It can more intuitively divide the disputed property into more detail to provide support for evaluation and judgment.

In this case, Liu Aisheng and Du Danqing respectively had different creditor-debtor relationships with Chen Shengming. How to sort out the differences between them, the Supreme Court has taken the right oneLiability property is divided into general and special categoriesIt effectively solves the problem of how to distinguish the legal relationship between the same kind and the same level. Provide a path for the next step of legal evaluation.

3. The channels for relief after the verdict in the cases of Liu Aisheng and Du Danqing are different.

In this case, if Liu Aisheng loses the case, there is no way for him to continue the remedy. The judgment that Du Danqing lost the lawsuit, Du Danqing did not fail to enforce the property. From the perspective of the principle of balance of interests, it is not allowed to implement a more socialist core socialist embodiment.

Fourth, the application of the law is in consideration

This case occurred before the promulgation of the Provisions on Reconsideration of Enforcement Objections. At that time, there was no specific law to refer to.

Now we can also quote it and continue to think about whether Liu Aisheng can block enforcement based on Article 28 of the Provisions on Enforcement Objection Reconsideration.

Article 28 In the course of the enforcement of monetary creditor's rights, if the buyer raises an objection to the immovable property registered in the name of the person subject to enforcement, and the following circumstances are met and the right can be excluded from enforcement, the people's court shall support it:

1) A legal and effective written sales contract has been signed before the people's court seals it up;

2) The immovable property has been lawfully taken possession of before it is sealed by the people's court;

3) The full price has been paid, or part of the price has been paid in accordance with the contract and the remaining price is delivered for enforcement in accordance with the requirements of the people's court;

4) The buyer has not completed the registration of the transfer of ownership for reasons not attributable to the buyer.

Legal possession There is no problem with paying most of the money and paying the rest

In order to handle the registration of the transfer, it was not specifically reflected in the case. It is estimated that Liu Aisheng must have an opinion, and whether Chen Shengming cooperates or not is the key to the problem.

Classification of liability property.

General Liability Property.

Special Liability Property.

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