Even if the subject matter has been streamed, unsealed and returned to the person being executed, it does not mean that the person being executed may no longer perform the obligations determined by the legal instrument in force, and does not mean that the subject matter has lost its enforceability. As long as the claimant’s claims are not fully repaid, the enforcement court may, in accordance with the authority or on the application, take enforcement measures against the enforced property of the executed person, including the unblocked and refunded property.

 

 

Case introduction:

 

1. Qinghai Bank Co., Ltd. (formerly Xining Commercial Bank, hereinafter referred to as “Qinghai Bank”) and Qinghai Donghu Hotel Tourism Co., Ltd. (hereinafter referred to as “Donghu Company”) have a loan guarantee contract dispute, which was made by Qinghai High Court ( 2007) Qingmin Erchuzi No. 2 Civil Judgment, ordered Donghu Company to repay the principal and interest within a limited time and assume the guarantee responsibility with its collateral.

 

2. After the judgment came into effect, Donghu Company failed to fulfill its obligations, and Qinghai Bank applied to Qinghai High Court for execution. During the implementation, the Qinghai High Court commissioned the evaluation agency to evaluate all the land and above-ground buildings of Donghu Company, and conducted three overall auctions, all of which were auctioned for unattended bidding. After the Qinghai High Court ruled to end this implementation procedure, and lifted the seizure of Donghu company property.

 

3. After Qinghai Bank applied for, the Qinghai High Court resumed its implementation in September 2013. However, Donghu Company stated in the reconsideration reply that the Qinghai High Court was not properly restored and should not re-cover the property that has been auctioned and returned to the person being executed. Re-auction. The Supreme Court held that the reason for the defense of Donghu Company was not established.

 

 

Referee points and ideas:

 

According to the second paragraph of Article 28 of the Supreme People's Court's Provisions on the Auction and Sale of Property in the Civil Execution of the People's Court, the execution of the subject matter of the case is returned to the person subject to execution, and does not mean that it is executed. A person may no longer perform the obligations set out in the legal instrument in force, nor does it mean that the subject matter is therefore unexecutable. The subject matter is the responsible property of the debtor and can still be used to pay off the debt. As long as the claimant’s claims are not fully repaid, the people’s court may, in accordance with the law, take enforcement measures against the enforced property of the executed person, including the unblocked and returned property.

 

In this case, the subject matter of the case was not realized in the previous auction procedure, and the executor did not pay off all the debts with other assets. Only the re-evaluation and auction of the subject matter involved in the case can realize the creditor’s credit, so Donghu’s The reason for the defense cannot be established.

 

 

Summary of practical points:

 

The past events are not forgotten, the post of the future, we summarize the practical points of the case as follows, for practical reference. At the same time, the application executor and the people's court are also invited to pay attention to the implementation method of debts or sales after the auction. In conjunction with the Supreme Court ruling instrument, in the implementation of the practice, the following should be focused on:

 

1. In order to protect the legitimate rights and interests of the applicant, the effective implementation of the method should be selected.

 

During the execution, the property of the person to be executed should first choose the auction process. If the auction is not successful, you can directly pay for the debt. However, the mandatory obligation to meet debts must meet the following conditions: (1) the person being executed has no money to pay; (2) the property of the person being executed cannot be auctioned and sold; (3) the executor agrees to accept the debt; (4) the debt The value should generally be assessed by the relevant authorities.

 

In addition, if the parties and the relevant rights holders agree, the property seized, seized or frozen may be sold. If no one should buy the property, and the application executor or other enforcement creditor refuses to accept it or fails to deliver the debt according to law, the people's court shall cancel the seizure, seizure, and return the property to the person subject to execution.

 

Therefore, the application executor should pay close attention to the property status of the person being executed. If there is a slap, it is necessary to make a trade-off of whether or not to accept the property debt, and then make further choices.

 

At the same time, if the case is resumed, even if the property has been returned to the person being executed after the auction, the property can be applied again for enforcement.

 

Second, for bidders, the issue of revolving should be clearly implemented.

 

Article 233 of the Civil Procedure Law stipulates that “after the completion of the execution, the judgments, rulings and other legal documents that have been executed shall be wrong and shall be revoked by the people’s court. The ruling is to order the return of the person who obtained the property; if it refuses to return, it is enforced." Although the situation of such execution is rare, the damage to the bidder is enormous. Therefore, the bidder should know this risk in advance. If it happens in reality, there is no clear legal provision in this case, and the system can be used to provide relief through good faith. Therefore, the most realistic way is to choose a settlement agreement with the relevant parties and make certain concessions. .

 

 

Related Laws:

 

Provisions of the Supreme People's Court on the Auction and Sale of Property in the Civil Execution of the People's Court [Law [2004] No. 16]

 

Article 28 For the real property or other property rights still being photographed in the second auction, the people's court may, in accordance with the provisions of Article 19 of these Provisions, pay the price to the executor or other executing creditors for debt. If the application executor or other enforcement creditor refuses to accept or fails to deliver the debts according to law, the third auction shall be conducted within 60 days.

 

If the third auction is auctioned and the applicant or other enforcement creditor refuses to accept or refuses to accept the real property or other property rights, the people's court shall issue a sale announcement within seven days from the end of the third auction. If the buyer is willing to buy the property at the reserve price of the third auction within 60 days from the date of the announcement, and the application executor or other enforcement creditor still does not accept the property debt, it shall be unblocked and frozen. The property is returned to the person subject to enforcement, except for other enforcement measures that may be taken against the property.

 

The following is a detailed discussion and analysis of the Supreme Court's judgment in the case that “the issue of the property that has been returned to the person subject to execution after the auction is still enforceable”.

 

The Supreme Court held in the judgment document that Donghu Company also stated in the reconsideration reply that the Qinghai High Court resumed its improper implementation and should not re-enclose and re-auction the property that has been auctioned and returned to the person being executed. In this regard, the Court believes that the Executive Court shall, in accordance with the provisions of Article 28, paragraph 2, of the Provisions on the Auction and Sale of Property in the Civil Execution of the People's Court, unblock the contents of the case and return it to the person subject to execution. It does not mean that the executor may no longer fulfill the obligations set out in the legal instrument in force, nor does it mean that the subject matter is therefore unexecutable. The subject matter is the responsible property of the debtor and can still be used to pay off the debt. As long as the claimant’s claims are not fully repaid, the people’s court may, in accordance with the law, take enforcement measures against the enforced property of the executed person, including the unblocked and returned property. In this case, the subject matter of the case was not realized in the previous auction procedure, and the executor did not pay off all the debts with other assets. Only the re-evaluation and auction of the subject matter involved in the case can realize the creditor’s credit, so Donghu’s The reason for the defense cannot be established.

 

Source of case:

 

Supreme People's Court: "Qinghai Donghu Tourism Co., Ltd. and Qinghai Bank Co., Ltd. Other Execution Application Reconsideration Implementation Determination" [(2014) Rescuing Word No. 19]