First, the understanding and application of restricting high consumption
1. "Difficult execution" has always been a big problem that puzzles the people's courts, and it is also one of the most strongly reflected problems by the people. In particular, some people who have been executed, on the one hand, refuse to fulfill their obligations stipulated in the effective legal documents, on the other hand, squander money by engaging in various high-consumption behaviors, which not only infringes on the legitimate rights and interests of the applicants, but also poses a serious challenge to the seriousness and authority of the law. In view of the fact that China's credit information system is not perfect at present, in order to punish these "laolai", the Supreme People's Court has formulated "Several Provisions on Restricting the High Consumption of Executed Persons" on the basis of summing up the experience of various places.
2. The definition of the object of restricting high consumption must be determined by the legislative purpose of restricting high consumption measures. The reason why the law stipulates that the people's court can take measures to limit the high consumption of the executed person is because by limiting the high consumption behavior of the executed person, on the one hand, it can prevent the improper reduction of his property; On the other hand, it will have a certain deterrent effect on the person subjected to execution, prompting him to take the initiative to fulfill the obligations specified in the effective legal documents. In view of this, as long as the person subjected to execution fails to fulfill the payment obligations specified in the effective legal documents within the time limit specified in the enforcement notice, the people's court can limit his high consumption.
3. According to Article 26, Paragraph 1 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of People's Courts (Trial): "If the person subjected to execution fails to perform the obligations specified in the effective legal documents within the period specified in the enforcement notice, compulsory measures shall be taken." Generally speaking, the people's court should not take enforcement measures against the person subjected to execution within the time limit specified in the enforcement notice. If the person subjected to execution fails to perform within the time limit, compulsory execution may be implemented. Therefore, as one of the enforcement measures, when the time limit stipulated in the enforcement notice expires and the person subjected to execution fails to perform the obligations stipulated in the effective legal documents, he should take measures to limit high consumption.
4. Limiting high consumption is different from directly implementing measures. The purpose of direct execution measures such as seizure, seizure, freezing and auction is to control the property of the person subjected to execution as soon as possible and prevent it from hiding, transferring or disposing of the property. As an indirect coercive measure, restricting high consumption aims to exert psychological pressure on the executed person and urge him to fulfill his obligations actively, but "surprise" execution can not enhance its effect. Before taking measures to limit high consumption, giving the person subjected to execution time for automatic performance is beneficial for the person subjected to execution to make careful choices and give full play to the function of restricting the person subjected to execution from automatically performing obligations in the consumer guide.
5. In practice, in order to prevent the person subjected to execution from evading the high consumption restriction order, the people's court should grasp a basic principle, that is, no matter whether the person subjected to execution excessively consumes in his own name or in the name of others, or others excessively consume with the property of the person subjected to execution, as long as the person subjected to execution pays the expenses with his property, resulting in the decrease of his property, it should be prohibited. In addition, the person subjected to execution is a unit. After being restricted from high consumption, the person subjected to execution, its legal representative, principal responsible person and the person directly responsible for debt performance are prohibited from carrying out high consumption behavior with unit property. This provision contains two meanings: first, the person subjected to execution is a unit, and after being restricted from high consumption, the unit is prohibited from engaging in high consumption behaviors listed in the Regulations on Restricting High Consumption; Second, the person subjected to execution is a unit. After being restricted from high consumption, the legal representative of the unit, the principal responsible person and the person directly responsible for debt performance are prohibited from engaging in all kinds of high consumption behaviors listed in the Provisions on Restricting High Consumption with Unit Property.
6. In practice, the types of enforcement cases are diverse and the objects are complex. In some cases, the person subjected to execution actively cooperated with the people's court to declare and search for property, and the people's court's direct enforcement measures such as sealing up, distraining and freezing their property were enough to pay off the creditor's rights of the applicant executor, and it was not necessary to take measures to restrict high consumption of these persons subjected to execution; In some cases, the person subjected to execution has no property available for execution, and it is of no practical significance for the people's court to limit his high consumption. Therefore, the order to limit high consumption may not be applicable in all cases, so it is not suitable for universal distribution. In view of the fact that the executor of the application is most concerned about his own rights and the movements of the executor, the start of restricting high consumption should be based on the application of the executor. At the same time, considering that the people's court has certain initiative and decisiveness in the execution procedure, the people's court may, according to the needs of the case, decide to take measures to limit high consumption ex officio if necessary.
7. Restricting high consumption is a supplementary indirect enforcement measure, which should generally be taken when the people's court has exhausted the direct enforcement measures such as sealing up, distraining and freezing, and still cannot realize the creditor's rights, so as to balance the rights and interests of both the application executor and the person subjected to execution, not only to ensure and promote the effective legal documents to be respected and consciously performed, but also to prevent the rights and interests of the person subjected to execution from being infringed by the abuse of the measures to restrict high consumption. It is particularly noteworthy that the application of measures to restrict high consumption does not affect the application of other direct coercive measures. During the period of restricting high consumption, the people's court may take compulsory measures such as sealing up, distraining, freezing and auction to dispose of the property of the person subjected to execution in accordance with legal procedures.
8. Measures to limit high consumption will inevitably have a certain impact on the life or business of the person subjected to execution, and improper behavior may infringe on the legitimate rights and interests of the person subjected to execution. In view of this, when the people's court takes measures to limit high consumption, it should build a multi-level decision-making mechanism, that is, after the executive judge makes a decision, it should be reported to the person in charge of the executive board for review and signed by the president of the executive court to reflect the prudence and authority of the system.
9. During the period of restricting high consumption, if the person subjected to execution provides effective guarantee or reaches a settlement with the application executor, and the application executor agrees to lift the order restricting high consumption, the court may lift the order restricting high consumption. It should be noted that in these two cases, although the rights of the application executor are guaranteed, the people's court can only decide to lift the high consumption restriction order according to the application of the application executor, but can't lift the high consumption restriction order ex officio.
10. The behavior of the person subjected to execution who consumes in violation of the high consumption restriction order belongs to the behavior of refusing to perform the legally effective judgment or ruling of the people's court, and the provisions of Article 102, paragraph 1 (6) and Article 104 of the Civil Procedure Law of China shall be directly applied. If the person subjected to execution is a natural person, he shall be fined not more than 10,000 yuan and not more than 0/5 days in judicial custody; If the person subjected to execution is a unit, a fine of 1 10,000 yuan but not more than 300,000 yuan shall be imposed, and the main person in charge or the person directly responsible shall be sentenced to judicial custody on 15. Fines and detention can be applied separately or in combination. As for the circumstances and amount of fines, detention, detention and combined fines, the people's court shall determine them according to the local economic development level, the actual affordability of the person subjected to execution, the seriousness of the violation of the high consumption restriction order and other factors. In addition, if the person subjected to execution who is restricted from high consumption violates the order to restrict high consumption and the circumstances are serious enough to constitute a crime, he shall be investigated for criminal responsibility for refusing to perform the judgment or ruling in accordance with the provisions of Article 313 of the Criminal Law of our country.
Second, the realistic identification of restricting high consumption.
1, Dalian Intermediate People's Court (20 16) Liao 02 Zhiyi No.20 case, the court held that the execution basis of this case was a case of enterprise lease contract dispute, and in the litigation stage of this case, Zhou Xiqing transferred the equity of the executed person he held. During the execution of this case, Shuang Ying Company, the executor of the application, filed a written application to restrict consumption on the grounds that the dissenter was directly responsible for the debt performance of this case. After examination, our hospital found that there was nothing wrong with the promise of (20 15). 176 consumption restriction order. The dissenter only applied for lifting the compulsory enforcement measures restricting high consumption on the grounds that he was not a shareholder of Qianzihe Company, and the evidence was insufficient, so our court did not support it.
2. In case No.44 of the Higher People's Court of Guangxi Zhuang Autonomous Region (2018), the court held that Fengxin Company, the person subjected to execution, failed to fulfill all the payment obligations determined in the effective judgment, and no other property or clues were found for execution, so the height limit order issued to Fengxin Company was in line with the above-mentioned height limit regulations, and its effect was extended to the legal representative of Fengxin Company. If the legal representative of Fengxin Company uses personal property for personal consumption to carry out the acts specified in the preceding paragraph, he may apply to the enforcement court in accordance with the provisions of the second paragraph of Article 3 of the Regulations of the Supreme People's Court on Restricting the High Consumption and Related Consumption of the Executed Person. If the examination by the enforcement court is true, it shall be allowed. "The provisions of the application to the court, the court shall examine and decide whether to allow, did not infringe on their personal rights.
3. Just in case. The civil judgment No.71(2018) Liao 14 of Huludao Intermediate People's Court holds that the court's No.7 1984 (20 16) Liao 14 was tried by the Higher People's Court of Liaoning Province. The validity of our civil judgment (20 16) Liao 14 Minzhong 1984 is to be determined. When the person subjected to execution and his legal representative, principal responsible person, person directly responsible for debt performance and actual controller restrict consumption, they should consider whether there is any negative performance, evasion or resistance to execution, and the performance ability of the person subjected to execution. Restricting consumption is a punishment measure for the person subjected to execution and his legal representative, principal responsible person, person directly responsible for debt performance and actual controller. However, the court has not yet executed the effective judgment, so the order to restrict the high consumption of the dissident Li is revoked.
4. Baoding Intermediate People's Court (20 17) case No.4 1 Ji 06, the court held that restricting the high consumption of the executed person and its related personnel was a compulsory measure in the execution of the case by the people's court. On1October 2 1 day, Shunping County People's Court made a ruling (20 16) that Ji 0636No. 169 restricted the consumption of Cai, the shareholder of Anyuan Company, who was executed. No problem.
5. In Longyan Intermediate People's Court (2018) No.37 case, the court held that Lu Yongguang, the applicant for reconsideration, was the legal representative of Changfeng Machinery Factory in Yongding County, and it was not improper for the xinluo district People's Court to issue a consumption restriction order to Lu Yongguang, the legal representative of Changfeng Machinery Factory in Yongding County. Lu Yongguang, the applicant for reconsideration, did not propose specific consumption behaviors to the xinluo district People's Court for examination by Silla Court. Therefore, the (20 18) Min 0802 Zhi Yi 1 14 enforcement ruling made by xinluo district People's Court is legal and the applicable law is correct, which should be maintained.
6. In Beijing No.1 Intermediate People's Court (20 18) case1kloc-0/,the court held that according to the civil judgments of the first and second instance, Sun Jing was the legal representative of the company in the litigation stage, and Sun Jing should bear the main responsibility for the performance of the debts of the company, and the court of first instance restricted its execution. In view of the fact that the executive judge of the court of first instance has taken the initiative to correct the execution behavior, this court rejects Sun Jing's objection that the executive judge failed to serve the high-consumption restriction order to Qiyuan Company and its individuals in accordance with relevant laws and regulations.
7. Pingdingshan Intermediate People's Court (20 18) CaseNo. 124, Yu 04 held that according to the provisions of Item 1 of Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Refusing to Execute Judgments and Ruling Criminal Cases, it had refused to report or falsely reported its property, violated the people's court's orders to restrict high consumption and related consumption, and took fines and detention.
8. Taiyuan Intermediate People's Court (20 18) held in case Jin 0 1 that according to the ascertained facts, the labor contract between the dissident and Shanxi Tianxing Ruomu Bio-engineering Development Co., Ltd. had been terminated, and from the contents of the agreement, all documents of the dissident's employment in the company and entrusted performance of related duties had also been destroyed. Our hospital (20 18) Jin 0 1 84 Order on Restricting High Consumption takes measures to restrict high consumption on the grounds that the dissenter is the chief financial officer of the executed company, which is a factual error and should be corrected.
9. In the case of Zibo Intermediate People's Court (2018) No.41,the court held that the second paragraph of Article 3 of the Regulations of the Supreme People's Court on Restricting the High Consumption and Related Consumption of the Executed Person stipulated that the executed person is a unit, and the enforcement court may take measures to restrict consumption of its legal representative, principal responsible person, persons directly responsible for debt performance and actual controller. After the enforcement court served the enforcement notice and summons on him, the identity of the legal representative of the reconsideration applicant changed. During the execution of this case, the reconsideration applicant is still the chairman of the company. In view of the chairman's status of the applicant for reconsideration, and he served as the legal representative of the company during the execution period, the execution court found that he actually controlled the company and took corresponding measures to limit the consumption of the applicant for reconsideration, which was not improper and was upheld by the court. Regarding the reconsideration applicant's claim that the post of chairman has existed in name only, according to the industrial and commercial registration information, the chairman of the company has not changed, and this reconsideration reason of the reconsideration applicant is not supported by our hospital.
In casesNo. 10 and No.31kloc-0/7 of Beijing No.1 Intermediate People's Court, the court held that Zhang Yi, as the legal representative of the executed Sanwei Ji Zheng Company, was paid by the court with unit property when the company failed to fulfill its obligations specified in the effective legal documents. The consumption restriction order also stipulates: "Anyone who uses personal property for personal consumption and conducts consumption activities prohibited by this order shall apply to our hospital and can do so only after approval." If Zhang Yi uses his personal property for personal consumption, he shall apply to the enforcement court, but his request for lifting the consumption restriction order will not be supported by our court.
1 1, Qingdao Shibei District People's Court (20 18) Lu 0203 40 case, the court held that the measures to restrict consumption belong to the enforcement behavior of the people's court. After examining the execution objection put forward by Chen Bailin, the legal representative of Xunlong Company, and the evidence, the Labor and Personnel Dispute Arbitration Committee of Licang District of Qingdao made an award (20 176) No.65438 on August 5, 1965, confirming that the labor relationship between Chen Bailin and Xunlong Company was dissolved on June 4, 2002, because Xunlong Company's business license was revoked and its industrial and commercial registration was frozen and could not be changed. And it does not belong to the principal responsible person, direct responsible person, actual controller or shareholders or investors who affect the debt performance of Xunlong Company. Under the circumstance that he submitted evidence to prove the above facts and raised an execution objection, restricting the consumption of the legal representative of the executed person who has left his post for many years is not conducive to punishing the evasion of execution, nor is it conducive to building a social credit mechanism. The court supports his execution objection.