Suggestion process of cracking false lease operation

If a lease occurs after the mortgage, the transferee of the collateral is not bound; After the seizure, the lease behavior cannot resist the court's enforcement. Therefore, the lease after mortgage or seizure, whether true or false, does not belong to the category of false lease. False lease, including:

First, the property involved did not have a lease relationship before it was mortgaged or sealed up, but the person subjected to execution colluded with outsiders to fabricate false materials, so that the property involved had a lease relationship on the surface before it was mortgaged or sealed up.

Second, the property involved had a lease relationship before it was mortgaged or sealed up, but then the executor and the lessee maliciously signed a supplementary agreement (1) to extend the lease time, or (2) split the lease income into rent and management fee, or (3) signed a yin-yang contract and only disclosed the low rent contract.

(B) the * * nature of the fake lease

First, the lease time is very long, and second, the rent standard is very low (even paying off debts by rent or paying the rent in one lump sum).

(three) the purpose of the parties to set up a false lease

1. Make use of the "lease relationship" to make it more difficult to dispose of the collateral (seized objects), and force the creditors to make concessions, so as to agree to debt relief or give loose repayment terms.

2. Take advantage of low rent and long-term cheap use of collateral (seizure) for profit.

3. Use the "lease relationship" to reduce the disposal price of collateral (sealed objects); When the court auctions, they (or interested parties) have the opportunity to bid at a low price and profit from it.

4. Aliens occupy the property involved, and take the opportunity to claim improper benefits such as renovation compensation and relocation compensation for collateral (seized objects).

5. The person subjected to execution wants to "take care of" one of the creditors individually, or the latter forces the person subjected to execution to cooperate with the false lease and take the way of "paying off debts with rent" to pay off debts.

(4) Measures to prevent false leasing

1. Prevention of Mortgagee

The mortgagee shall go to the site to fix the purpose of the subject matter before handling the mortgage, including but not limited to: taking photos and taking videos; If there is a lease, if the lease contract is obtained, it shall be confirmed by the objector and the latest rent payment certificate shall be provided; If there is no lease, the mortgagor is required to confirm the use status of the property in writing (owned, idle, borrowed and used for personal use), and promises to obtain the consent of the mortgagee if it needs to be leased or disposed of in the future. Usually, the mortgagee is relatively strong in handling loans, and the mortgagor will basically cooperate with the above matters as long as he makes a request. _ After the loan is issued, the mortgagee shall also regularly check the condition of the collateral; If a new lease is found or the objector changes, the mortgagor shall be required to provide and confirm the lease information and objection information in time.

2. Matters needing attention of the applicant executor

Before applying to the court to seal up the property, the application executor shall make all necessary adjustments to the property involved, including but not limited to: taking photos and videos on the spot (which can prove the date of taking photos and videos); If the property involved has been used, the relationship between the user and the person subjected to execution (self-use, lease, loan and occupation) should be found out, and the evidence of "who is the current user" of the property involved should be collected (the lease contract should be obtained from the industrial and commercial bureau, the payment receipt should be obtained, and the on-site signs or nameplates should be recorded. ); If the property involved is idle or being rented, the application executor can contact or sign a contract with the lessor as a fake customer to obtain and fix the relevant facts (title certificate, lease contract version, collection account, etc.). ).

If the above preventive measures are taken, if the court seals up the property involved, the executor or the outsider jumps out to confront the execution with the "existing lease", the applicant executor will be confident. After the court makes a seizure order, the executor of the application shall, according to Article 9 of the Provisions of the People's Court on Seizing, Seizing and Freezing Property in Civil Execution, strongly request the judge to post an announcement at the scene of the property to be seized, and understand and fix the use of the property involved (self-possession, possession, borrowing, leasing and idling) by taking photos, asking questions and taking notes on the spot. Among them, the record shall specify the actual situation and use of the property, which shall be signed by the judge and the user; If it is found that part or all of the seized property is occupied by an outsider, the judge shall be reminded to ask the outsider's name (or name), domicile (or domicile), occupation reason, occupation period and other contents on the spot, and record them in the seizure record; If an outsider raises an objection, he shall be ordered to provide a lease contract and proof of rent payment. On the spot. The executor of the application shall record and video the process of on-site seizure and fix the evidence.

(five) professional skills to identify and crack the false lease.

If the "lessee" (hereinafter referred to as the "dissenter") raises an execution objection during the court's seizure or proposed disposal (evaluation and auction) of the property, if the application executor thinks that there is a suspicion of false lease, the following tactics can be adopted to identify and crack it.

The first measure: find out whether the dissident actually owns the property involved.

In practice, when the real lessee is unwilling to cooperate with the executed person to make a false lease, the executed person will collude with outsiders to sign the lease contract in advance in the form of "pre-lease" and raise an objection when the court executes it. But the lease contract is a practical contract. Article 31 of the Supreme People's Court's Provisions on Several Issues Concerning People's Courts Handling Objection Reconsideration Cases stipulates that the objector must actually possess and use the leased property to prevent the transfer of possession, except that he can provide a legal and effective lease contract. In the case that the leased property is still occupied by the person subjected to execution or a third party, neither the person subjected to execution nor the objector can object to the execution or prevent the transfer of the subject matter on the grounds that the lease contract has been signed but the property is expected to be recovered. _ 鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬鷬

The second measure: find out whether the property involved was used by dissidents before mortgage or seizure.

Solution: If other enterprises or individuals (1) use the property involved, or (2) pay taxes on the property involved, or (3) go through the relevant procedures for the property involved during the lease period stated by the dissenter (especially before the mortgage seizure), it can be preliminarily considered that there is a suspicion of false lease.

(1) For non-residential properties, evidence can be obtained by the following (conventional and unconventional) methods:

Investigation 1: Inquire about the enterprises registered at this address on the Internet, and then go to the Industrial and Commercial Bureau to retrieve the relevant enterprise files, from which: (1) search the site procedures (lease contract or site certificate) and fire control procedures to find out who the lessor, lessee or user is; (2) Find out the starting and ending time (if any) when these enterprises use the property involved; (3) Check whether the official websites or publicity materials of these enterprises disclose that they have produced, operated or worked at the above address.

Investigation 2: go to the scene to learn about the evolution of property use from the personnel of the adjacent units involved; Ask security guards, doormen, neighbors, etc. Find out when the dissident moved into the property involved.

Investigation 3: Go to the relevant departments to investigate who paid the taxes and fees of the property involved, such as utilities, sewage charges, environmental protection fees, property management fees, gas fees, telephone fees, TV fees, telecommunications fees, land use rights taxes, property taxes, debit accounts, etc.

Investigation 4: Go to the relevant departments to investigate who handled the procedures of lease filing, pollution discharge permit, decoration permit, fire protection permit, construction application permit and acceptance permit of the property involved.

(two) for residential property, evidence can be obtained in the following ways:

Investigation 1: consult local residents and villagers to understand the evolution of housing users; Ask security guards, doormen, neighbors, etc. Find out when the dissidents moved into the house.

Investigation 2: Go to the relevant departments to investigate who paid the utilities, garbage, gas, telephone, TV, telecom, land use right tax, property tax and deduction account of the house.

Investigation 3: Go to the local rental housing management center or the foreign population management center to inquire about the rental record information of the house.

Investigation 4: Go to the property management office to investigate the relevant situation of the house, such as who pays the property management fee, who reports the decoration, who lives, who holds the access card, the vehicle number plate of the resident, who pays the parking fee and who reports the decoration; You can even try to retrieve the surveillance video (if available).

Investigation 5: Ask the real estate agent to help you check whether there is any rental information of the house in the rental filing system.

The third measure: find out the state description of the property involved in the mortgage.

If the property involved is mortgaged, check the credit file to see the description of the property involved by the mortgagor and the loan officer when applying for mortgage (self-owned, self-used, borrowed, leased and idle respectively). If there is no disclosure in the file that the property involved was leased before mortgage, or even it is not clearly stated that there is no lease, it can be considered as a false lease.

The fourth measure: find out whether the dissidents have relatives, friends and superiors.

Those who can collude or cooperate with the person subjected to execution to engage in false leasing are basically relatives and friends, subordinates (such as secretaries and drivers), affiliated enterprises (people), or creditor-debtor relationships. Solution: As long as there is evidence that there is a special or intimate relationship between the dissident and the executed person, it can be further determined that there is a false lease.

(1) If the person subjected to execution or the dissenter is a legal person, evidence can be obtained in the following ways:

Investigation 1: Investigate the names of the actual controller and dissenter of the executed person, and investigate the names of the actual controller's spouse and adult children (through private detectives).

Investigation 2: Go to the Industrial and Commercial Bureau to collect the industrial and commercial files of the executed person and the dissenter respectively, and find out from them:

(1) shareholder (natural person or legal person);

(2) Names of all related parties, including but not limited to legal representatives, shareholders, senior managers, financial personnel, certificate holders, etc. ;

(3) If the shareholder is a legal person, continue to inquire about the shareholder composition of the legal person until it is found that all shareholders and executives are natural persons;

(4) Contact telephone number.

Survey 3:

(1) Check whether natural persons related to the dissenter, such as their actual controllers (including close relatives), shareholders (including close relatives), senior managers, finance, employees and agents (lawyers) are related to the executed person and the above-mentioned related persons;

(2) Find out the relationship between the parties through social security and taxation (individual tax) departments;

(3) Inquire and compare the aforementioned correlations through the Internet.

Investigation 4: Investigate whether there is a creditor-debtor relationship or other relationship between the executed person and the dissident through the legal website.

(2) If the dissident is a natural person, evidence can be obtained in the following ways:

Investigation 1: To understand the relationship between the dissident and the executed person (including its actual controller and shareholders), such as whether there are relatives, employees, drivers, secretaries, etc.

Investigation 2: Find out the relationship between the dissident and the executed person through the social security and taxation (individual tax) departments; Understand the dissident's work experience and tax payment.

Investigation 3: Investigate whether there is a creditor-debtor relationship or other relationship between the executed person and the dissident through websites such as laws and courts.

The fifth measure: question the defects in the lease relationship.

(1) Non-residential property

Inquiry 1: Has the dissident gone through the formalities of taking over the leased property? Whether it has not been renovated for a long time after renting; Whether the property involved has been used.

Question 2: the way of paying rent by dissidents; Whether there is a voucher for paying the rent; If payment is made by transfer, who is the payer and who is the payee? Whether there are receipts and invoices for the rent received (note: it is particularly suspicious to pay the rent in cash before the mortgage is seized, and then pay it by transfer).

Question 3: Do the objector and the person subjected to execution keep accounts of the expenditure and rent collection, and ask the judge to find the financial personnel of both parties to investigate and check the accounts face to face.

Question 4: For example, rationality

(1) If the lease was filed before the property involved or the dissenter rented other properties, why didn't it be filed this time or was it reissued after the mortgage was seized?

(two) whether the dissident has a place for production and business operation, and whether it is really necessary to lease the property involved;

(3) Whether the dissident pays rent in cash is contrary to his income, trading habits and common sense of life, and whether he can specify the time and place of rent handover, the handover person and the bank withdrawal record;

(4) Whether the dissident owes rent for a long time but the person subjected to execution does not recover it;

(6) Why is the rent of the property involved high before and low now?

(2) Residential property

Query 1. Query 2, same as non-residential category.

Question 3: Rationality, such as (1) whether the dissident lives in another house, how many relatives live together, and whether it is really necessary to rent the house involved; (2) Whether the distance between the work and study place of the dissident (including his close relatives) and the property work and school involved is reasonable; (3) Whether the age, occupation and economic ability of the dissidents (including their spouses) can afford the rent; (4) Whether the dissident pays the rent in cash is contrary to his income, trading habits and common sense of life, and whether he can explain the time, place, handover person and bank withdrawal record of the rent handover; (5) Whether the dissident owes rent for a long time and the person subjected to execution does not recover it; (6) Why is the rent of the property involved high before and low now?

The sixth measure: apply for judicial expertise (killing skills)

Judicial expertise includes: material formation time identification, handwriting (seal) identification, writing time identification, etc.

If the creditor suspects that the lease materials submitted by the dissenter are forged (such as backward date and false signature) or grafted (the signature page is true and the content page is false), it may apply to the court to separately (or choose) extract the signatures of the parties and paper materials from the lease contract, deposit receipt, rent receipt, objection letter, power of attorney, inquiry record and other materials. As long as it is fake, it is basically inescapable. As long as the creditor dares to apply for judicial expertise (inevitably a large sum of money will be paid in advance), the guilty executors and dissidents will generally be timid and give up confrontation. For the property involved in the case that there was a lease relationship before the mortgage or seizure, but the executor and the lessee maliciously re-signed a supplementary agreement to extend the lease time (1), or (2) split the rental income in two, or (3) sign a yin-yang contract and only disclose the false lease of the low-rent contract, it may be the most effective solution for the creditor to apply for judicial expertise-just identify the "low-rent contract".

The seventh measure: urge the judge to put pressure on relevant personnel.

At present, the court has increased the punishment for obstructing execution. If the creditor thinks that there is some evidence to prove that the so-called "lease" proposed by the dissenter is false, he can urge the judge to find security guards, doormen, aunts of neighborhood committees, property managers, financial personnel, dissidents, etc. Cooperate with the investigation and make a record of the inquiry, and seriously declare the legal responsibility of perjury or helping perjury to the above-mentioned personnel. As long as the judge breaks through one of them and obtains the true testimony, other false materials and lies will be easily seen through or debunked.

The eighth measure: through litigation relief channels.

If the false lease has been fixed in the form of arbitration, mediation or judgment, the creditor may file a lawsuit for cancellation by a third party, or advocate malicious collusion between the leasing parties (in an attempt to infringe upon the legitimate rights and interests of others through litigation, mediation, etc.). By reporting, appealing, applying for retrial, applying for non-enforcement of the arbitral award, etc., request the court to cancel or retry, revise the judgment, reject the objection's claim or not enforce the arbitral award. When exercising the above rights, the creditor must take the initiative. In addition to collecting evidence that is beneficial to you in the above way, you should also take the initiative to apply to the court for investigation and evidence collection. For example, if the rent is paid by transfer, the creditor can apply to the court for the transaction list of the accounts paid by both parties to the lease, so as to find out the whereabouts of the money (usually flowing back to the same account). In addition, when there is preliminary evidence to prove that there is a suspicion of false lease, creditors should dare to "burn their bridges" and apply for judicial appraisal of relevant materials.

The ninth measure: investigate the responsibility of false lease.

If it is confirmed by execution review, execution objection litigation or other litigation procedures that the person subjected to execution and the objector confront execution through fictitious lease relationship, the creditor must urge the court to impose fines and detention on the relevant responsible person in accordance with the provisions of Article 113 of the Civil Procedure Law; If it constitutes a crime of refusing to execute a judgment or ruling and illegally disposing of the crime of sealing up or distraining property, it shall be transferred according to law (or the creditor files a private prosecution) and investigated for criminal responsibility. If the creditor obstructs the execution by executing the objection, bringing a lawsuit against the execution objection or other litigation procedures because of the fictitious lease relationship between the person subjected to execution and the objector, he may also bring a lawsuit according to the provisions of Article 315 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law, and demand the person subjected to execution and the objector to pay economic compensation.