don't panic after receiving the execution notice. 1 The notice of execution shall be delivered to the person subjected to execution within three days after receiving the materials.
Provisions of the Supreme People's Court on Several Time Limits for People's Courts to Handle Enforcement Cases
Article 1 A case in which the person subjected to execution has property available for execution shall generally be closed within 6 months from the date of filing the case; Non-litigation enforcement cases should generally be settled within 3 months from the date of filing.
if it is necessary to extend the execution period under special circumstances, it shall be reported to the president or vice president of our hospital for approval.
the application for extending the execution period shall be filed within 5 days before the expiration of the execution period.
article 2 the people's court shall determine the undertaker within 7 days after filing a case.
article 3 after receiving the case materials, if the undertaker thinks that the situation is urgent and compulsory measures need to be taken immediately, he can take corresponding compulsory measures immediately after approval.
article 4 the undertaker shall, within 3 days after receiving the case materials, issue a notice of execution to the person subjected to execution, notify the person subjected to execution to declare the property in accordance with the relevant provisions, and order the person subjected to execution to perform the obligations specified in the effective legal documents.
if the person subjected to execution transfers, conceals, sells or destroys the property within the prescribed performance period, the people's court shall immediately take measures to control the execution after receiving the notice.
after receiving the notice of court execution, the person subjected to execution shall truthfully declare his property and cooperate with the court in execution. If he refuses to implement it, the court will take compulsory measures to implement it.
don't panic when you receive the enforcement notice. 1. The parties may directly file a lawsuit against the notice of demolition within a time limit.
First of all, "Notice of Ordering Demolition of Illegal Buildings within a Time Limit" or "Decision of Demolition within a Time Limit" (hereinafter referred to as "Decision of Restraining Demolition") is generally an independent and specific administrative act.
Moreover, the content of the demolition restriction decision is mainly to order the administrative counterpart and the parties to dismantle the building within a time limit, which sets a positive obligation for the counterpart, and this obligation has the possibility of being enforced.
the decision to restrict the demolition is unfavorable to the relative person, has direct legal effect, and is an administrative act that can be reconsidered and litigated. Once this administrative act is made, its adverse impact on the counterpart has already been produced, and it has the final legal effect, so the administrative counterpart and the parties have independent litigation rights on the decision to limit the demolition, (22) Supreme Law Word No.248) (219) Supreme Law Application No.3347).
Therefore, the parties need not be too alarmed when receiving the notice of demolition restriction, and we still hope to take effective relief through legal channels.
2. I will sue immediately after receiving the notice of demolition within a time limit. If it is still demolished, can I sue again?
For individual "forced demolition" behavior, of course, the administrative counterpart has the right to appeal, and may also file a reconsideration or lawsuit. However, in practice, there are some disputes about whether the "forced demolition" can be brought for reconsideration or litigation after the "restricted demolition decision" is made.
in practice, the actual handling of a large number of cases of forced demolition after making the decision of demolition within a time limit is: the parties started the relief procedure (administrative litigation or administrative reconsideration) for the "decision to restrict demolition" made by the administrative organ, but in the course of the relief procedure, "forced demolition" occurred again, resulting in the results of the parties exercising the relief right of "forced demolition". Furthermore, the parties have both "decision to restrict demolition" and "forced demolition"
The fundamental reason for this situation is that the administrative organ violated the provisions of Article 44 of the Administrative Law and the Administrative Enforcement Law, and illegally implemented the administrative enforcement of "forced demolition" when the "decision to restrict demolition" has not yet taken legal effect.
according to article 44 of the administrative enforcement law: "if illegal buildings, structures and facilities need to be demolished by force, the administrative organ shall make an announcement, and the parties concerned shall dismantle them by themselves within a time limit.
if the party concerned does not apply for administrative reconsideration or bring an administrative lawsuit within the statutory time limit and does not demolish it, the administrative organ may forcibly demolish it according to law. "
The time limit stipulated in this article is the legal time limit, that is, it sets more preconditions than the general administrative compulsory demolition of illegal buildings, structures and facilities, that is, after the expiration of the legal time limit, if the person subjected to execution fails to dismantle it by himself or bring an administrative reconsideration or administrative lawsuit, the administrative organ with the power of enforcement can enforce it by itself according to law. (refer to the Supreme People's Court (215) No.28 Administrative Judgment)
In other words, the parties concerned should be ordered to demolish the illegally built houses within a time limit. Only when the legal reconsideration or litigation period expires and the parties fail to take legal procedures to safeguard their rights and interests can they be forcibly removed according to law.
However, some administrative organs violated the above provisions and illegally carried out forced demolition, which led the parties to file reconsideration and litigation on forced demolition again during the reconsideration and litigation of the Decision on Restricting Demolition, resulting in "conflict" in the exercise of relief rights. How to deal with this situation?
In some cases, the parties concerned filed reconsideration and litigation on the "decision to restrict demolition" and "compulsory demolition" respectively, and the people's court and the reconsideration organ filed a case and tried it separately.
However, in other cases, the adjudication organ thinks that the "restricted demolition decision" is the basis and premise of the "forced demolition", and the "forced demolition" is the implementation of the "restricted demolition decision", not an independent specific administrative act. Since the administrative counterpart has filed reconsideration and litigation on the "decision to limit demolition", it is impossible to seek relief for "forced demolition" alone (refer to (217) Supreme Court Administrative Ruling No.3854).
this problem should be analyzed in different situations. According to the statement in the Supreme Court case (219), the Supreme Court application number is 13434:
"On the one hand, there is no need to accept and review the suspected forced demolition on the basis of the above notice; (22) On the other hand, if the accused forced demolition itself goes beyond the scope of the above decision, the object of execution is wrong, or the retrial applicant directly causes illegal infringement of personal and property, and the retrial applicant also requests compensation, then the case is necessary for review and acceptance. "
in other words, the determination of the relationship between "decided to restrict demolition" and "forced demolition" and the way to exercise the right of relief must be obtained through comprehensive judgment of the facts of the case. The key point is to analyze the relationship between "demolition restriction decision" and "forced demolition", mainly from the following aspects:
1. Whether the forced demolition behavior is beyond the scope of the demolition restriction decision and whether it is carried out according to the object and area of the demolition restriction decision;
2. Whether the forced demolition behavior is implemented according to the demolition period determined by the demolition restriction decision;
3. If the subject of forced demolition is wrong, the accused forced demolition is beyond the scope of the above decision, the object of execution is wrong, or personal and property are illegally infringed, then forced demolition can be prosecuted separately.
I would like to remind you that when we received a notice of demolition within a time limit and filed an administrative reconsideration or administrative lawsuit, we were forcibly demolished. At this time, it is necessary to review whether the "forced demolition behavior" is legal according to the review standards mentioned above, and then initiate legal proceedings against its illegal points. But if we don't know the specific handling process, we should actively consult lawyers and get their help. Lawyers should help us formulate correct relief strategies and don't sue at will, so as not to waste valuable litigation rights.
don't panic when you receive the execution notice. 1. What should I do if I receive the enforcement notice?
1. According to the Provisions of the Supreme People's Court on Several Time Limits for People's Courts to Handle Enforcement Cases, a case in which the person subjected to execution has property available for execution shall generally be settled within 6 months from the date of filing the case; Non-litigation enforcement cases should generally be settled within 3 months from the date of filing. If it is necessary to extend the execution period under special circumstances, it shall be reported to the president or vice president of our hospital for approval. The application for extending the execution period shall be filed within 5 days before the expiration of the time limit.
2. legal basis: article 225 of the civil procedure law of People's Republic of China (PRC). If the parties or interested parties think that the enforcement act violates the law, they may file a written objection to the people's court responsible for enforcement. If a party or interested party raises a written objection, the people's court shall conduct an examination within 15 days from the date of receiving the written objection. If the reason is established, it shall make a ruling to cancel or correct it; If the reason cannot be established, the ruling shall be rejected.
Second, after receiving the detention notice
1. In the case of administrative detention, family members can visit the detainees; If it is a criminal detention, you can entrust a lawyer to meet and understand the case in time, and the lawyer can meet and correspond with the criminal suspect or defendant in custody. Provide legal aid and consultation for the parties to obtain bail pending trial and defense.
2. Article 33 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates that a criminal suspect has the right to entrust a defender from the day when he is interrogated for the first time by the investigation organ or takes compulsory measures; During the investigation, only lawyers can be entrusted as defenders. The defendant has the right to entrust a defender at any time.
when interrogating a criminal suspect for the first time or taking compulsory measures against him, the investigation organ shall inform him that he has the right to entrust a defender. The people's procuratorate shall, within three days from the date of receiving the case materials transferred for examination and prosecution, inform the criminal suspect that he has the right to entrust a defender.
the people's court shall, within three days from the date of accepting the case, inform the defendant of the right to entrust a defender. If a criminal suspect or defendant requests to entrust a defender while in custody, the people's court, the people's procuratorate and the public security organ shall promptly convey it.
if a criminal suspect or defendant is in custody, his guardian or near relative may also entrust a defender. After accepting the entrustment of a criminal suspect or defendant, the defender shall promptly inform the case-handling organ.