If we limit high consumption, how can we break it? You can change the legal representative and then apply to the court. It is necessary to prove that the original legal representative will not have a significant impact on the company's operation and management after leaving office (i.e. the executor) or be directly responsible for debt performance. Then, with the approval of the court, it can be dissolved.
situation
Case number: (2020) Su Zhifu No.24
We believe that after the Intermediate People's Court of this case made a consumption restriction order, the legal representatives of the executed persons, Kangdexin Optoelectronic Company and Kangdexin Materials Company, were changed from the reconsideration applicant to Feng. The debts involved in the execution of this case were formed before Xiao Peng became the legal agent, and Xiao Peng actually left his post before the execution of this case. The existing evidence is not enough to prove that after Xiao Peng no longer serves as the legal representative of Kangdexin Optoelectronic Company and Kangdexin Materials Company, he can still have a significant impact on the company's operation and management or be directly responsible for debt performance. He is neither the actual controller of the person subjected to execution nor the person directly responsible for the debt performance in this case. Therefore, the request of Xiao Peng, the applicant for reconsideration, to lift the measures restricting his consumption was established, and our court supported it.
It can be seen that:
The original legal representative of the executed unit has changed, and the original legal representative has proved that he is "not the actual controller of the unit and the person directly responsible for the debt performance" and has actually left his post. After examination, the court lifted the order to restrict high consumption. Further deduction, if the legal representative can prove that he is nominal, neither a shareholder nor an actual controller, it is more likely to lift the ban.
Legal basis: the Supreme People's Court's Opinions on Further Strengthening the Concept of Honesty and Civilization in Implementation.
17. Several situations of lifting consumption restrictions. After the people's court has taken measures to restrict the consumption of the person subjected to execution, if the person subjected to execution and its relevant personnel apply for dissolution or temporary dissolution, they shall be dealt with according to the following circumstances:
1. After the consumption of the executed unit is restricted, if its legal representative, principal responsible person, person directly responsible for debt performance and actual controller propose to engage in consumption behavior with personal property on the grounds of private consumption, it will be approved after examination.
2. After the consumption of the executed unit is restricted, its legal representative and principal responsible person really change due to the needs of operation and management. If the original legal representative or principal responsible person applies for lifting the consumption restriction measures, it shall prove that he is not the actual controller of the unit or the person directly responsible for affecting the debt performance. If the people's court finds it true after examination, it shall allow it, and the legal representative and principal responsible person after the change shall take measures to restrict consumption according to law.
3. Individuals whose consumption is restricted need to go to other places due to serious illness, funeral of close relatives, execution or cooperation of official duties, participation in foreign affairs activities or important examinations, etc., and apply to the people's court for temporary lifting of restrictions on flying and high-speed rail. After strict examination and approval by the president of our hospital, a temporary termination period of no more than one month can be given. When applying for cancellation of restrictions, the materials to be submitted are:
1. Report on the publicity of enterprise credit information, which proves that it no longer serves as the legal representative of the executed unit; At the same time, he does not hold the company's equity, has no position, and is not the actual controller;
2. The annual report of the executed entity, the register of shareholders and the effective judgments of other cases (if any);
3. Separation certificate, explanation, payment of endowment insurance, etc. Prove that you have been fired.
Practice of handling cases
The author's team handled a case of lifting the consumption restriction order in 2020. Let's share: after we filed a retrial application in the Provincial High Court, when we were accepted and started the trial, we simultaneously requested to lift the consumption restriction order of the customer executives.
The reasons are as follows: (1) the legal documents on which the "consumption restriction order" is based are under retrial and may be re-identified; * * * No longer serves as the legal representative of the applicant, and it will not affect the debt performance, and it will have little impact to continue to restrict its consumption; The consumption restriction of one and a half years has had a great negative impact on my work and life. Please ask your hospital to lift it. At the same time, the applicant understands that if it is really necessary to restrict the consumption of the applicant's current legal representative according to law after your hospital has lifted the consumption restriction order against * * * *, the applicant has no objection (the latter supplement is a promise made according to the requirements of the court).
Shortly after submission, the court lifted the restrictions on the original legal representative; We are also ready for the new legal representative to be restricted, but fortunately, the new legal representative is not actually restricted in consumption. It is estimated that the court is waiting to see if the retrial will overturn the original judgment. Fortunately, the retrial successfully overturned the original judgment, and we all won the case; Therefore, all coercive measures were cancelled.