|
Welcome Guest
|
|
You are using Guest Account
|
|
||||||||||||||||||||||||||||||||||
|
These Provisions are formulated in accordance with the "Civil Litigation Law of the People's Republic of China" and other laws, as well as in combination with the practical experiences of the people's courts in civil enforcement so as to further regulate the sealing, distraint and freezing measures in civil enforcement, and maintain the lawful rights and interests of the parties concerned. Article 1. A people's court shall, when sealing up, distraining or freezing the movable properties, real properties or other property rights of an enforcee, make an order, and serve it to both the enforcee and the person applying for enforcement. A people's court shall, if in need of the assistance of a relevant entity or individual when taking the sealing, distraining or freeze measure, make a notice for assistance in enforcement, and serve it along with a copy of the ruling to the person assisting in enforcement. The ruling on the sealing, distraining or freezing measure and the notice for assistance in enforcement shall become legally effective once it has been served. Article 2. A people's court may seal up, distrain or freeze the movable properties occupied by an enforcee, as well as the real properties, certain movable properties and other property rights registered under the name of the enforcee. The ownership of an unregistered building and of the land use right shall be determined on the basis of the approval document for the land use right, and other relevant evidence, as well. With respect to the movable properties occupied by a third person or the real properties, certain movable properties or other property rights registered under the name of the third person, if the third person confirms in writing that the properties belong to the enforcee, the people's court may seal up, distrain or freeze such properties. Article 3. After a legal document which is considered as the basis for enforcement becomes effective and before an application is filed for enforcement of the said legal document, the creditor may apply to the people's court with jurisdictional power over the enforcement for preservation of the debtor's properties. The people's court may make an order on preservation by analogy to Article 92 of the Civil Litigation Law, and such order on preservation shall be enforced immediately. Article 4. Where a measure of preserving properties is taken before litigation, in litigation or arbitration, it shall be automatically converted into the sealing, distraining or freezing measure in enforcement after entering the enforcement procedure, and the contents in Article 29 of these Provisions on the time limit for sealing, distraining and freezing measures shall apply. Article 5. The people's court shall not seal up, distrain or freeze the following properties of a the enforcee: (1) clothes, furniture, kitchenware, tableware and other necessities for family life, which are necessary for the life of the enforcee and his dependent family members; (2) living expenses necessary for the enforcee and his dependent family members. If there is a lowest local rate for security of living, the necessary living expenses shall be determined according to such rate; (3) articles necessary for the enforcee and his dependent family members to complete compulsory education; (4) unpublicized inventions or unpublished works; (5) auxiliary devices and medical articles necessary for the physical handicap of the enforcee and his dependent family members; (6) medals of the enforcee, and his other articles of honor and commendation; (7) properties immune from being sealed up, distrained or frozen, as prescribed in a treaty, agreement, or other document having the nature of a treaty or agreement, which is concluded in the name of the People's Republic of China, the Government of the People's Republic of China or a governmental department of the People's Republic of China with a foreign country or international organization in accordance with the "Law of the People's Republic of China on the Procedures for Conclusion of Treaties"; (8) other properties prescribed in laws or judicial interpretations which shall not be sealed up, distrained or frozen. Article 6. The people's court may seal up the dwelling necessary for the life of the enforcee and his dependent family members, but shall not auction, sell off it or use it to pay a debt. Article 7. The people's court may, upon application by the person applying for enforcement, enforce the premises and articles in excess of necessary daily life of the enforcee and his dependent family members on the premise of guaranteeing the dwelling necessary for lowest rate of living and the common necessaries of life for the enforcee and his dependent family members. Article 8. A people's court may, when sealing up or distraining movable properties, directly control the properties. If the people's court delivers the movable properties which have been sealed up or distrained to any other person for control, it shall attach a strip of sealing on the movable properties or sufficiently indicate the sealing or distrainment in any other appropriate method. Article 9. A people's court shall, when sealing up real properties, attach a strip of sealing or make an announcement, and may draw relevant certificates and licenses of the property rights for preservation. A people's court shall, when sealing up, distraining or freezing registered real properties, certain movable properties or other property rights, notify the relevant registration organ to handle the registration procedures. If such properties have not been registered, they shall not counteract other registered sealing, distraining or freezing measures. Article 10. A people's court shall, when sealing up a building whose ownership has not been registered, notify the administrator or actual occupier of the building, and put up an announcement on an eye-catching position. Article 11. A people's court shall, when distraining a motor vehicle whose ownership has not been registered, record the engine number of the motor vehicle on the distrainment list. If, during the period when the vehicle is distrained, the obligee requests making registration of ownership, the people's court shall permit such request and timely handle the distrainment registration accordingly. Article 12. Where any property which has been sealed up or distrained is not appropriate to be kept in custody by the people's court, the people's court may designate the enforcee to be responsible for the custody; if the property is not appropriate to be kept in custody by the enforcee, the people's court may entrust a third person or the person applying for enforcement to keep in custody. With respect to the property which is kept in custody by the enforcee who is designated by the people's court, if its value will not be heavily affected due to continuing use, the enforcee may be permitted to continue using it; if the property is kept in custody by the people's court or by an entrusted third person or by the person applying for enforcement, the custodian may not use it. Article 13. A people's court shall, when sealing up, distraining or freezing any property occupied by an obligee of guarantee, usually designate the said obligee to be the custodian; if the property is kept in custody by the people's court, neither the pledge nor the lien of such property shall be eliminated due to transfer of occupation. Article 14. A people's court may seal up, distrain or freeze the properties jointly owned by the enforcee and other person(s), but shall notify the joint owners in time. Where the joint owners divide their jointly owned properties by agreement, and have been confirmed by the creditors, the people's court may ascertain such division to be effective. The effectiveness of the sealing, distraining or freezing measure shall cover the portion of properties owned by the enforcee after division by agreement; meanwhile, the people's court shall make an ruling on canceling the sealing, distraining or freezing measure over the portion of properties owned by other joint owners. Where any of the joint owners brings a lawsuit for dividing properties or the person applying for enforcement brings in subrogation a lawsuit for dividing properties, the people's court shall grant permission, and suspend enforcement of the properties during the period of lawsuit. Article 15. With respect to the properties of the enforcee, which are occupied by a third person for the benefit of the enforcee, the people's court may seal up, distrain or freeze them; if such properties are designated to continue to be under the third person's custody, the third person shall not deliver them to the enforcee. The people's court may seal up, distrain or freeze the properties owned by the enforcee but lawfully occupied by a third person for his own benefits, and the third person may continue occupying and using such properties, but may not deliver such properties to the enforcee. Where the third person borrows the properties of the enforcee gratuitously, he shall not be restricted by the preceding paragraph. Article 16. Where an enforcee sells his property to a third person, and the third person has paid part of the price and has actually occupied the property, but the ownership is reserved by the enforcee pursuant to the contractual stipulations, the people's court may seal up, distrain or freeze the properties; if the third person requests for continuing the performance of the contract, the people's court shall make an ruling on rescinding the sealing, distraining or freezing measure after the third person has paid all the remaining price to the people's court within a reasonable time. Article 17. Where an enforcee sells to a third person all his properties which are necessary to be registered due to transfer of ownership, and the third person has paid partial or the total price and has actually occupied the properties, but has not gone through the registration for transfer of ownership, the people's court may seal up, distrain or freeze the properties; if the third person has paid the total price and actually occupied the properties, but has not gone through the registration for transfer of ownership, and if the third person has no fault for failing to gone through the said registration, the people's court shall not seal up, distrain or freeze the properties. Article 18. Where an enforcee purchases any property from a third person, has paid partial price and actually occupied the property, but the third person reserves the ownership pursuant to contractual stipulations, and moreover, the person applying for enforcement has paid the remaining price to the third person or the third person has agreed in writing that the remaining price may be paid in priority from the price of the property, the people's court may seal up, distrain or freeze the property. Where the third person rescinds the contract in accordance with the law, the people's court shall grant permission, and the sealing, distraining or freezing measure which has been taken shall be cancelled, provided that the people's court may, upon application by the person applying for enforcement, enforce the creditor's rights of the enforcee over the third person, which are formed due to payment of the price. Article 19. Where an enforcee purchases the property of a third person which is subject to registration of transfer of ownership, and has paid partial or total price and actually occupied the property, the people's court may seal up, distrain or freeze the property if the person applying for enforcement has paid the remaining price to the third person or the third person agrees on payment of the remaining price in priority with the money from selling off the property although the enforcee has not made registration of transfer of ownership. Article 20. When sealing up, distraining or freezing the properties of an enforcee, the enforcers shall make a transcript stating the following contents: (1) time of commencing and ending the enforcement measure; (2) localities, varieties and quantity of the properties; (3) custodian of the properties; and (4) other particulars to be stated. The enforcers and the custodian shall sign their names on the transcript. If any person prescribed in Article 224 of the Civil Litigation Law is on site, such person shall also sign his name on the transcript. Article 21. The properties of an enforcee, which have been sealed up, distrained or frozen, shall be limited to the sum of the enforcement expenses and the amount of creditor's rights determined in the legal document, which can be sufficiently repaid with the price of such properties, but shall not be sealed up, distrained or frozen in obvious excess of the amount of the subject matter. The people's court shall, in case finding that the properties are sealed up, distrained or frozen in excess of the amount of the subject matter, timely cancel upon application of the enforcee or upon its powers the excessive part of the properties which have been sealed up, distrained or frozen, unless such properties are undividable, and the enforcee has no other enforceable properties or his other properties are insufficient to repay the debts. Article 22. The effectiveness of the sealing or distraining measure shall cover the accessory of the properties which have been sealed up or distrained, and the natural interest, as well. Article 23. The effectiveness of sealing up a building on ground shall cover the land use right within the scope of using the building on ground, and the effectiveness of sealing up the land use right shall cover the building on ground, with the exception that the land use right and the ownership of the building on ground separately belong to the enforcee and other person(s). Where the building on ground and the land use right are not registered by the registration organ, they shall be separately subject to registration of the sealing measures. Article 24. Where the properties which have been sealed up, distrained or frozen are lost or damaged, the effectiveness of the sealing, distraining or freezing measure shall cover the substitute of and indemnity for the properties. The people's court shall timely make an order on sealing up, distraining or freezing the said substitute and indemnity. Article 25. If, when a notice for assistance in enforcement by taking sealing, distraining or freezing measure is served to the registration organ, the registration organ has accepted the application of the enforcee for registration of his transfer of the ownership of real properties, certain movable properties or other properties, and has not ratified the registration, it shall assist the people's court in enforcement. The people's court shall not take sealing, distraining or freezing measure over the properties whose registration has been ratified by the registration organ and which have been transferred by the enforcee. If, when a notice for assistance in enforcement by taking sealing, distraining or freezing measure is served to the registration organ, another people's court has served to the registration organ a notice for assistance in registration of transfer of ownership, the registration organ shall handle the registration of transfer of ownership in priority. Article 26. Any act committed by an enforcee in respect of transferring or setting up encumbrance or impeding the enforcement with regard to the properties which have been sealed up, distrained or frozen shall not counteract the person applying for enforcement . Where, without permission of the people's court, a third person occupies the properties which have been sealed up, distrained or frozen or commits any other act of impeding the enforcement, the people's court may, upon application of the person applying for enforcement or upon its powers, cancel such occupation or eliminate the impediment. Where the sealing, distraining or freezing measure taken by a people's court is not announced, its effectiveness shall not counteract a third person in good will. Article 27. Where a people's court seals up or distrains the mortgaged properties set up by the enforcee at the maximum amount of mortgage, it shall notify the mortgagee. The amount of the mortgagee's creditor's rights guaranteed by mortgage shall no longer increase as of the mortgagee's receipt of the notice sent by the people's court. Where the people's court has evidence to prove that the mortgagee knows the fact about the sealing or distrainign measure although it did not notify the mortgagee, the amount of creditor's rights guaranteed by mortgage shall no longer increase as of the time when the mortgagee knows the fact. Article 28. With respect to the properties which have been sealed up, distrained or frozen by a people's court, other people's courts may seal up, distrain or freeze them in sequence. If the sealing, distraining or freezing measure has been cancelled, the sealing, distraining or freezing measure registered in earlier sequence shall become effective automatically. Where other people's courts seal up, distrain or freeze the registered properties in sequence, they shall notify the relevant registration organ to assist in sequential registration, and the people's court taking the sealing, distraining or freezing measure shall permit other people's courts to consult relevant documents and records. Other people's courts that seal up, distrain or freeze unregistered properties in sequence shall make transcripts, and both the enforcers of the people's court enforcing the sealing, distraining or freezing measure and the enforcee shall sign their names, or notify in writing the people's court enforcing the sealing, distraining or freezing measure. Article 29. The period for a people's court to freeze the bank deposits or other funds of an enforcee shall not exceed six months, the period for sealing up or distraining movable properties shall not exceed one year, and the period for sealing up real properties or freezing other property rights shall not exceed two years, unless otherwise prescribed in laws or judicial interpretations. Where a person applying for enforcement applies for extension of period, the people's court shall go through the procedure of extending the period of sealing, distraining or freezing measure prior to the expiry of such measure, provided that the extended period shall not exceed a half of the period prescribed in the preceding paragraph. Article 30. Where, at expiry of the period of a sealing, distraining or freezing measure, a people's court has not gone through the procedure for extension of the period, the sealing, distraining or freezing measure shall be nullified. Where the properties which have been sealed up, distrained or frozen are auctioned, sold off or used to repay debts, the sealing, distraining or freezing measure shall be nullified. Article 31. In case of any of the following circumstances, the people's court shall make an order on canceling the sealing, distraining or freezing measure, and serve the order to the person applying for enforcement, the enforcee or a person outside the case: (1) The properties of a person outside the case are sealed up, distrained or frozen; (2) The person applying for enforcement withdraws the application for enforcement or waives his creditor's rights; (3) The properties which have been sealed up, distrained or frozen fail to be auctioned or sold off, and neither the person applying for enforcement nor other creditors agree to accept the repayment of debts with the properties; (4) The debts have been repaid; (5) The enforcee provides guaranty, and the person applying for enforcement agrees on cancellation of the sealing, distraining or freezing measure; or (6) other circumstances under which the people's court considers that the sealing, distraining or freezing measure shall be cancelled. A people's court shall, when canceling a sealing, distraining or freezing measure enforced by means of registration, send a notice for assistance in enforcement to the registration organ. Article 32. Orders on preservation of properties and orders for advance enforcement shall be enforced in accordance with these Provisions. Article 33. These Provisions shall come into force on January 1, 2005. In case any judicial interpretation promulgated by this Court before these Provisions come into force is inconsistent with these Provisions, these Provisions shall prevail. |
||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||
|
Copyright 2002 NovexCn.com
|