Rules for adjudication of over-standard seizure for reconsideration or execution of objection review

The people's court adopts preservation measures for the debtor's property, aiming at ensuring the realization of the creditor's rights and ensuring that the creditor's rights can be fully compensated when the price actually changes. At the same time, in order to avoid damaging the legitimate rights and interests of the debtor, the first paragraph of Article 21 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in Civil Execution of People's Courts stipulates that the seizure, seizure and freezing of the property of the person subjected to execution shall be limited to the amount sufficient to pay off the creditor's rights and execution expenses determined by legal documents, and those that obviously exceed the standard shall not be seized, seized or frozen. Therefore, it is particularly important to scientifically examine whether the party's application for reconsideration or execution objection is reasonable and justified. Through the retrieval of polymerization and non-litigation cases, our lawyers have sorted out the ruling rules of execution objection exceeding the standard as follows:

1. To determine whether there is excessive seizure in the execution of a case, we must first find out the amount of the subject matter of the execution of the case, and then entrust a professional appraisal institution to conduct a value assessment to determine whether the seized property exceeds the amount of the subject matter of execution.

In the Supreme People's Court's case of application for recognition and enforcement of court judgment and arbitration award (20 15), No.47, the Supreme Law holds that, first of all, to determine whether there is excessive seizure in the enforcement case, the amount of the subject matter of the case should be ascertained first. In the execution objection procedure of this case, both parties have disputes over the amount of the execution target involved. This fact is of great significance for judging whether the seizure exceeds the standard, and Hainan High Court has determined that there is no seizure exceeding the standard in this case without examination, which has constituted unclear facts. Secondly, the evaluation report submitted by the innovation bookstore of the person subjected to execution, because it is unilaterally entrusted or has exceeded the validity period, is really not suitable as the basis for judging whether it exceeds the standard. However, this case was put on file for execution on July 20 15, and the application executor Yao Hui has applied for evaluation. Now the executed person Innovation Bookstore advocates over-standard seizure, and Hainan Higher People's Court should immediately entrust an evaluation of the property involved, and determine whether there is over-standard seizure according to the entrusted evaluation price.

2. If the parties put forward the detention exceeding the standard, the people's court should not only look at the assessed price of the subject matter, but also consider the factors such as delayed performance interest, land use right transfer fee owed by the person subjected to execution, various taxes and fees, auction commission, transfer fee of the auction subject matter and so on. And the proportion that can be lowered according to law when determining the auction reserve price.

In the reconsideration ruling No.6 of the execution case of Ningxia Long Fu (Zhejiang) Catering and Entertainment Co., Ltd. and Guangsha Construction Group Co., Ltd. (20 13) tried in the Supreme People's Court, the Supreme Court held that the case did exceed the amount of the execution subject matter simply from the evaluation price of the subject matter, but whether the seizure of the excess part should be lifted should also be determined in combination with the specific circumstances of the case. The enforcement court has the right to consider factors such as delayed performance interest, unpaid land use right transfer fee, various taxes and fees, auction commission, transfer fee of auction target, and the proportion that can be lowered according to law when determining the auction reserve price. At the same time, the subject matter of this case, "Long Fu Hotel", is a project under construction, which should not be divided according to the plan. As for excluding some of the property disposed of by the executor without authorization or by other courts from the auction target, it is caused by the illegal registration of property rights by Chen, the legal representative of the executor. Since it has become a fait accompli and is difficult to handle, it is deducted from the auction target, which does not mean that the auction project under construction is the appropriate target. Therefore, it is not improper for the enforcement court of this case to seal up and dispose of the subject matter as a whole.

In the Supreme Court's Execution RulingNo. 18 in the case of Tangshan Renda Real Estate Development Co., Ltd. and Han Wenjun Execution Review (20 17) heard in the Supreme People's Court, the Supreme Court held that whether the amount of seizure is too large should be measured between the value of the execution target and the value of the seizure target. The applicant for reconsideration proposed that the amount of land to be executed was 370 million yuan, and the value of the land exceeding the bid was nearly 600 million yuan, but no corresponding evidence was provided to confirm it, and the execution target determined in the execution certificate of this case was 505 million yuan, as well as reasonable expenses such as premium, liquidated damages for delay, lawyer's fees and notarization fees for the execution certificate. Therefore, it is difficult to establish the facts and reasons that the reconsideration applicant claims that the amount to be executed is 370 million yuan and the amount exceeding the standard is seized without evidence, and our hospital does not support it.

3. Waiting for seizure is not a formal seizure in essence, and it does not have the effect of formal seizure. There is no problem of excessive detention.

In the case of loan dispute between Lanzhou General Machine Manufacturing Co., Ltd. and Lanzhou New Area Yin Hui Microfinance Co., Ltd. (20 14) No.25, which was heard in the Supreme People's Court, the Supreme Court held that according to the first paragraph of Article 28 of the Provisions of the People's Court on Civil Enforcement of Attachment, Seizure and Freezing of Property, the people's court lifted the attachment of the seized, seized and frozen property. Accordingly, the pending seizure is not a formal seizure in nature and does not have the effect of formal seizure. Waiting for the attack only produces an expected effect, similar to the behavior with uncertain effect. No.02 objection ruling of Gansu Higher People's Court found that there was nothing wrong with the "seizure effect has not yet appeared" pending seizure measures. At the same time, waiting for the Higher People's Court of Gansu Province to seal up the land use right under the name of Lantong Company is a litigation preservation measure, which is a temporary measure in nature and effect. Its main purpose is to prevent Lantong Company from transferring its property, but objectively it has not disposed of the subject matter of preservation. To take a step back, even if the case enters the execution procedure in the future, the pending seizure of the land use right under the name of Lantong Company in this case will be transformed into a formal seizure, and then the legal effect of the formal seizure will occur. How much of the realization proceeds of the two seized land use rights can be used to realize the creditor's rights in this case depends on the execution of the previous seizure case. In view of this, the measures taken by Gansu Provincial Higher People's Court to freeze the deposits in three bank accounts under the name of Lantong Company totaling 1.8 1.9058 million yuan do not constitute repeated preservation. The reasons given by Lantong Company for excessive preservation by Gansu Provincial Higher People's Court are inconsistent with the facts and have no basis in law, so our court will not support them.

4, the people's court in the process of reviewing the implementation of the objection, should be combined with the increase of creditor's rights, the possible price reduction in the judicial auction and other factors, the judicial interpretation of the provisions of the "significantly more than the standard amount" restrictions, should be appropriately lenient.

In the case of Nantong Yingfeng Real Estate Investment and Development Co., Ltd., Shanghai Ye Feng Real Estate Development and Management Co., Ltd. and Nantong Yingfeng Real Estate Investment and Development Co., Ltd. and Shanghai Ye Feng Real Estate Development and Management Co., Ltd. (20 15) tried in the Supreme People's Court, the Supreme Court held that the subject matter sealed up by Jiangsu High Court was real estate, not real estate. Because the property involved has not been evaluated, it is impossible to accurately calculate its value, so the Jiangsu Higher People's Court can only comprehensively estimate the value of the seized property. Therefore, the boundary of "the amount obviously exceeds the standard" stipulated in the judicial interpretation should be appropriately lenient. Considering that the amount of creditor's rights is still increasing and the seized property is still mortgaged, combined with the uncertainty of judicial auction and market fluctuation, from the current seized property, Jiangsu Higher People's Court has not obviously seized the property beyond the standard.

In the case of Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and other private lending disputes, applying for recognition and enforcement of court judgments and arbitral awards, the Supreme People's Court (20 15) holds that the judgment that the value of the sealed-up subject matter has not been evaluated can refer to the corresponding market price and consider the price reduction in the process of judicial auction. If it is evaluated, the evaluation report can be used as the main basis for determining the value of the subject matter. According to the relevant regulations of auction evaluation, the reserve price of the first auction is 80% of the evaluation price, and each auction can be further reduced by 20%. If the sealed subject matter is auctioned for three times, the realized value can be as low as 654.38+0.6 billion yuan. However, the total amount of principal, interest and deferred performance interest of Wang Jiayong's creditor's rights is basically equivalent to the value of the seized real estate and frozen equity of 654.38 billion yuan. Therefore, there is no obvious over-standard seizure or freezing in this case.

5. The sealed-up commercial house is a project under construction, but it has obtained the pre-sale permit of commercial house and can be sold to the outside world, and its value shall be determined by referring to the sales price of surrounding shops, the agreement of both parties in the loan contract and other factors.

In the case of Gansu Yongrui Real Estate Development Co., Ltd. vs. Gansu Yongrui Real Estate Development Co., Ltd. and Li Ximing Private Lending Dispute, Application for Recognition and Enforcement of Court Judgments and Arbitral Awards (20 16) heard in the Supreme People's Court, the Higher People's Court of Gansu Province held that the sealed commercial house was a project under construction, and its value could not be equal to that of the completed commercial house. Yongrui Company did not provide sufficient evidence to prove the specific value and excessive amount of the commercial house, so it ruled that the objection was not supported. However, after review, the Supreme Court held that the seized property is a project under construction, but it has obtained a pre-sale permit for commercial housing and can be sold to the outside world. Combined with the sales price of the surrounding shops and the agreement of both parties in the loan contract, the value of the seized 36,703.83 square meters property has obviously exceeded the 200,405,554.8 yuan applied for preservation. On this basis, the part of the ruling that obviously exceeds the standard shall be lifted.

6. The key to the people's court's review of the execution objection of the outsider lies in whether the outsider enjoys the right to exclude the execution of the subject matter. As for whether there is excessive seizure of property, it is an objection to execution.

In the case of the Supreme People's Court and Xing Shuangquan applying for retrial (20 15), No.2105, the Supreme Court held that because the purpose of the execution objection lawsuit filed by the outsider was to exclude the execution procedure, the people's court examined whether the outsider had enough rights to exclude the execution, and Yang Junhua tried to prove that there was excessive seizure of property in the execution process, which was aimed at the execution behavior.

7. The objection to the preservation ruling is a reconsideration case, and the objection to the specific execution behavior of the court based on the preservation ruling is an execution objection case.

In the Supreme Court's Execution Ruling on Tangshan Kuntai Real Estate Development Co., Ltd. Construction Project Contract Dispute Case (20 16) heard in the Supreme People's Court, the Supreme Court held that since this case was Kuntai Company's objection to the specific seizure behavior rather than a general preservation ruling, it should be set up to conduct an execution objection case for review. It is correct for Hebei Higher People's Court to apply Article 225 of People's Republic of China (PRC) Civil Procedure Law to examine and handle this case and inform the parties that they have the right to apply for reconsideration. However, the case number of the reconsideration case is (20 16). 123, the execution of the ruling is improper and should be corrected to the objection case number. Following the case number of Hebei Higher People's Court, our hospital established Chongjian Company's application as (20 16) Supreme Law Enforcement No.399. After understanding the relevant situation, our hospital has corrected the case number to (20 16) Supreme Law Enforcement No.73 and conducted a review according to the reconsideration procedure.

8. In the procedure of litigation, objection review and reconsideration of protective measures overlap with litigation trial. After the judgment comes into effect and enters the execution procedure, the property preservation objection or reconsideration that has not been reviewed will automatically turn into the objection or reconsideration of the execution behavior in the execution procedure.

In the case of the Supreme People's Court (20 15) Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and other private lending disputes applying for recognition and enforcement of court judgments and arbitral awards, the Supreme Court held that objections and reconsideration of litigation preservation measures can be automatically transformed into objections and reconsideration of enforcement actions. First of all, according to Article 100 of the Civil Procedure Law of People's Republic of China (PRC), litigation preservation is a preservation measure taken by the people's court to ensure the smooth execution of the judgment before the judgment of a civil case. Article 168 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of People's Republic of China (PRC) also clearly stipulates that the preservation ruling shall be automatically converted into the measures of sealing up, distraining and freezing being implemented after it is revoked or dissolved by the people's court according to law. Therefore, litigation preservation measures are essentially the enforcement of compulsory measures. Secondly, the objection and reconsideration of litigation preservation measures is essentially the objection and reconsideration of execution procedures. In the procedure of litigation, objection review and reconsideration of preservation measures overlap with litigation trial. After the judgment comes into effect and enters the execution procedure, the property preservation objection or reconsideration that has not been reviewed will automatically turn into the objection or reconsideration of the execution behavior in the execution procedure. Therefore, after entering the execution procedure, the objection and reconsideration of litigation preservation in this case have essentially changed into the objection and reconsideration in execution.

9. If the sealed-up subject matter is mortgaged, the party claiming exceeding the standard shall bear the burden of proof for the value of the sealed-up subject matter after deducting the mortgage.

In the case of the Supreme People's Court (20 15) concerning the dispute over equity transfer, application for recognition and enforcement of court judgments and arbitral awards, the Supreme Court held that in this case, when Sanming Intermediate People's Court sealed up the project under construction of Fortune Garden, all the projects had been mortgaged to Youxi Sub-branch of Industrial and Commercial Bank of China, and Yonglong Company and Zhang Hegan did not provide relevant information at that time.

10. There should be a difference between the execution objection during the litigation preservation period and the objection of exceeding the standard seizure in the execution stage. The people's court shall properly and strictly grasp the objection to the over-standard seizure during the preservation period, and allow the parties to provide unilateral entrusted appraisal opinions as reference.

In the case of execution review of Xiong Daohai's construction contract dispute heard in the Supreme People's Court, in the execution ruling of the Supreme Law (20 17)No. 14, the Supreme Law held that the litigation property preservation was limited to the scope of the request or the property related to this case. This case belongs to the enforcement of litigation property preservation ruling. The seizure, seizure and freezing of the property of the guarantor Guizhou Jian 'an Company should generally be limited to the property value determined by the litigation property preservation ruling. At present, there is no clear stipulation in the law and judicial interpretation on whether it is necessary for both parties to entrust or designate a judicial appraisal institution to evaluate the value of the seized or frozen property during the execution of the litigation property preservation ruling. Therefore, if a party entrusts a qualified judicial appraisal institution to evaluate the price of the real estate involved, and uses the evaluation opinions to support his claim, it is not against the law for the enforcement court to adopt it after examination and determine that it has seized the property in excess.

1 1. The principle of handling over-standard seizure is: after the enforcement department verifies the price of the seized property, it will make a notice of assistance in execution.

In the execution ruling No.37 of the Supreme Law of Nantong Xinhua Construction Group Co., Ltd. (20 17), which was tried in the Supreme People's Court, the Supreme Court held that according to the spirit stipulated in Article 21 of the Provisions of the Supreme People's Court on the Attachment, Seizure and Freezing of Property in Civil Execution of People's Courts, if the seized property obviously exceeds the value determined by the preservation ruling, the attachment of surplus property should be lifted in time. In the objection procedure, Tianzhirun Company advocated to seal up the property exceeding the bid amount, and submitted the appraisal report of the value of some of the sealed-up property for other purposes, but Nantong Xinhua Company refused to recognize this, and both parties disputed the value of the sealed-up property. It is generally understood that such disputes should be resolved in the process of objection review, and whether to lift part of the seizure should be substantively determined. In the objection procedure, the Hebei Higher People's Court did not make a substantive judgment on whether the amount of the seized property in this case was too large, but only pointed out the principle of handling the dispute over the amount of the seized property in this case, that is, the enforcement department verified the price of the seized property and made a notice of assistance in execution again. This kind of treatment is not in line with the function and purpose of the objection procedure generally understood, and it is also unreasonable, but it may be used as an alternative treatment in specific circumstances.

12, the nature of the property preservation system determines that it is impossible to accurately calculate its value when sealing up, so it is impossible to deny the legitimacy of sealing up without an accurate judgment basis for the price of the seized property.

In the Supreme Court's Execution Ruling on Nantong Xinhua Construction Group Co., Ltd. (20 17) heard in the Supreme People's Court, the Supreme Court held that the subject matter of this case is real estate, not property with a definite amount such as deposits. The nature of the property preservation system determines that its value cannot be accurately calculated when it is seized, and it can only be estimated by combining various factors. Therefore, when there is no accurate basis to judge the price of the seized property, it cannot be denied.