1. Understanding and application of restrictions on high consumption
1. "Difficulty in enforcement" has always been a major problem that plagues the People's Courts and is also one of the issues most strongly reflected by the people. . In particular, some persons subject to execution, on the one hand, refuse to perform their obligations stipulated in effective legal documents, and on the other hand, engage in various high-consumption behaviors to squander money, which not only infringes upon the legitimate rights and interests of the persons applying for execution, but also undermines the seriousness and authority of the law. presented serious challenges. In view of the fact that our country's credit reporting system is not yet perfect, in order to punish these "old people", the Supreme People's Court formulated the "Several Provisions on Restricting High Consumption of Persons Subject to Execution" based on summarizing the experience of various places.
2. The definition of objects that restrict high consumption must be determined by the legislative purpose of the measures to restrict high consumption. The reason why the law stipulates that the people's court can take measures to restrict the high consumption of the person subject to execution is that by restricting the high consumption behavior of the person subject to execution, on the one hand, it can prevent the improper reduction of his property; on the other hand, it will have certain consequences for the person subject to execution. The deterrence effect prompts them to proactively fulfill the obligations specified in the effective legal documents. In view of this, as long as the person subject to execution fails to perform the payment obligations specified in the effective legal document within the period specified in the execution notice, the people's court can restrict his high consumption.
3. According to Article 26, paragraph 1, of the "Regulations of the Supreme People's Court on Several Issues Concerning the Enforcement Work of People's Courts (Trial)": "The person subject to execution fails to perform within the period specified in the execution notice. "Generally speaking, the People's Court shall not take enforcement measures against the person subject to execution within the period specified in the execution notice." If the person subject 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 subject to enforcement fails to perform the obligations stipulated in the effective legal document, restrictions on high consumption should be adopted.
4. Restricting high consumption is different from directly implementing measures. The purpose of direct execution measures such as sealing, detaining, freezing, and auctioning is to control the property of the person subject to execution as soon as possible and prevent him from concealing, transferring, or disposing of the property. Restrictions on high consumption are an indirect coercive measure aimed at exerting psychological pressure on the persons subject to execution and prompting them to proactively perform their obligations, but "surprise" execution cannot enhance its effect. Before taking measures to limit high consumption, giving the person subject to execution time to perform automatically will help the person subject to execution make careful choices and give full play to the function of restricting the person subject to execution to automatically perform his obligations in consumption guidance.
5. In practice, in order to prevent the person subject to execution from evading the order restricting high consumption, the people's court should grasp a basic principle, that is, regardless of whether the person subject to execution excessively consumes in his own name or in the name of others, Or if others use the property of the person subject to execution for excessive consumption, as long as the person subject to execution uses his property to pay expenses, resulting in a reduction of his property, it should be prohibited. In addition, if the person subject to execution belongs to a unit and is restricted from high consumption, the person subject to execution and his legal representative, principal person in charge, and person directly responsible for affecting debt performance are prohibited from using the unit's property to engage in high consumption behavior. This provision contains two meanings: first, the person subject to execution is an employer, and after being restricted from high consumption, the employer is prohibited from engaging in high-consumption behaviors listed in the "Regulations on Restrictions on High Consumption"; second, the person subject to enforcement is from an employer, and after being restricted from high consumption, After consumption, the legal representative of the unit, the main person in charge, and the person directly responsible for affecting the performance of debts are prohibited from engaging in various high-consumption behaviors listed in the "Regulations on Restricting High Consumption with Unit Property".
6. In practice, the types of execution cases are diverse and the objects are complex.
In some cases, the persons subject to execution actively cooperated with the people's court to declare and search for their properties. The people's court took direct enforcement measures such as sealing up, detaining, and freezing their properties, which were sufficient to pay off the claims of the persons subject to execution, and there was no need to take measures to restrict high consumption of these persons subject to execution. ; In some cases, the person subject to execution has no property available for execution, and it has no practical significance for the people's court to restrict his high consumption. Therefore, orders to limit high consumption may not necessarily apply to all situations, so they are not suitable for general distribution. Since the person applying for execution is most concerned about his own rights and the movements of the person subject to execution, the initiation of restrictions on high consumption should be based on the application of the person applying for execution. At the same time, considering that the people's courts have certain initiative and decisiveness in enforcement procedures, the people's courts can decide to take measures to restrict high consumption according to the needs of the case and when necessary, ex officio.
7. Restricting high consumption is a supplementary indirect enforcement measure, which should generally be taken when the people's court has exhausted direct enforcement measures such as sealing, seizure, and freezing and is still unable to realize the creditor's rights to balance the application. The rights and interests of both the executor and the person subject to execution not only ensure and promote the respect and conscious performance of effective legal documents, but also prevent the rights and interests of the person subject to execution from being infringed by the abuse of measures to restrict high consumption. It is particularly worth noting 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, if the people's court discovers the property of the person subject to execution, it may take compulsory measures such as sealing up, detaining, freezing, and auctioning to dispose of the property of the person subject to execution in accordance with legal procedures.
8. Measures to restrict high consumption will inevitably have a certain impact on the life or business of the person subject to execution, and improper behavior may infringe upon the legitimate rights and interests of the person subject to execution. In view of this, when the people's courts take measures to restrict high consumption, they should build a multi-layered decision-making mechanism. That is, after the enforcement judge makes a decision, it should be reported to the person in charge of the enforcement bureau for review and signed by the president of the enforcement court to reflect the prudence of the system. and authority.
9. During the period of restricting high consumption, if the person subject to execution provides an effective guarantee or reaches a settlement with the person applying for execution, and the person applying for execution 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 person applying for execution are protected, the people's court can only decide to lift the high consumption restriction order based on the application of the person applying for execution, but cannot lift the high consumption restriction order ex officio.
10. The person subject to execution's consumption behavior in violation of the high consumption restriction order is an act of refusing to perform the legally effective judgment or ruling of the People's Court, and Article 102 of the Civil Procedure Law of the People's Republic of my country should be directly applied. The provisions of paragraph 1 (6) and Article 104. If the person subject to execution is a natural person, he shall be fined not more than 10,000 yuan and judicially detained for not more than 15 days; if the person subject to execution is an entity, he shall be fined not less than 10,000 yuan but not more than 300,000 yuan, and the principal person in charge or the person directly responsible shall be fined not more than 15 days. judicial detention. Fines and detention may be applied separately or combined. As for the circumstances and amount of fines, detention, detention, and combined fines, the People's Court shall determine the circumstances and amount of fines based on the local economic development level, the actual affordability of the person subject to execution, the severity of the violation of the high consumption restriction order, and other factors. In addition, if the person subject to high consumption restrictions violates the high consumption restriction order and the circumstances are serious enough to constitute a crime, he will be held criminally responsible for the crime of refusing to fulfill the judgment or ruling in accordance with the provisions of Article 313 of the Criminal Law of our country.
Second, the realistic identification of restrictions on high consumption
1. Dalian Intermediate People’s Court (2016) Liao 02 Zhi 1 No. 20 case, the court held that the basis for the execution of this case was a In the case of enterprise leasing contract disputes, during the litigation stage of this case, Zhou Xiqing transferred his equity in the person subject to execution. During the execution of this case, Shuangying Company, the applicant for execution, submitted a written application to restrict consumption on the grounds that the opponent was the person directly responsible for the performance of the debt in this case. After review, our court determined that the (2015) Dazhi Commitment made was not inappropriate. 176 Consumption Restriction Order. The opponent only applied for lifting the enforcement measures restricting high consumption on the grounds that he was not a shareholder of Qianzihe Company, the party subject to enforcement. The evidence was insufficient and this court would not support it.
2. In the Guangxi Zhuang Autonomous Region Higher People’s Court (2018) Case No. 44, the court held that the party subject to execution, Fengxin Company, failed to perform all payment obligations determined by the effective judgment, and no other available for execution was found. property or clues, so the height restriction order issued to Fengxin Company complies with the above height restriction regulations, and its effect extends 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 file a complaint with the enforcement court in accordance with the provisions of Article 3, Paragraph 2 of the "Regulations of the Supreme People's Court on Restricting High Consumption and Related Consumption of Persons Subject to Execution" Make an application. If it is found to be true upon review by the execution court, it shall be approved. "The provisions of the application to the court, the court should review and decide whether to allow it, and it does not infringe on his personal rights.
3. Just in case. Huludao Intermediate People's Court No. 71 (2018) Liao 14 Civil The judgment held that the civil judgment No. 1984 (2016) Liao 14 issued by this court has been heard by the Liaoning Provincial Higher People's Court and has entered the trial stage. When the legal representative, principal person in charge, person directly responsible for debt performance, or actual controller restricts consumption, they should consider whether there is any behavior of passive performance, evasion or resistance to execution, and whether the restriction on consumption affects the person subject to execution. and its legal representative, principal responsible person, person directly responsible for debt performance, and actual controller. However, this court has not yet implemented the effective judgment, so it revokes the high consumption restriction order against the dissenter Li.
4. Baoding Intermediate People’s Court (2017) Case No. Hebei 06 No. 41. The court held that restricting the high consumption of persons subject to execution and related persons is a compulsory measure in the enforcement cases of the People’s Court of Shunping County on October 10. On March 21, the ruling No. 169 of Hebei Order No. 0636 was made to restrict Cai Consumption, the shareholder of Anyuan Company.
5. In Longyan Intermediate People’s Court (2018) Case No. 37, The court held that the reconsideration applicant Lu Yongguang was the legal representative of Yongding County Changfeng Machinery Factory, and it was not inappropriate for the Xinluo District People's Court to issue a consumption restriction order to Lu Yongguang, the legal representative of Yongding County Changfeng Machinery Factory, due to family reasons. Yongguang did not submit specific consumption behaviors to the Silla District People's Court for review regarding health and other personal consumption behaviors. Therefore, the (2018) Min 0802 Enforcement 114 enforcement ruling made by the Silla District People's Court is legal and the applicable law is correct and should be granted. Maintained.
6. In Beijing No. 1 Intermediate Court (2018) Case No. 101, the court held that according to the first and second instance civil judgments, Sun Jing was the legal representative of Xianyuan Company during the litigation stage. The first-instance court should bear the main responsibility for the performance of the debts of Qiayuan Company. In view of the fact that the execution judge of the first-instance court has taken the initiative to correct the execution behavior, this court rejected Sun Jing’s claim that the execution judge failed to comply with relevant legal provisions to impose restrictions on Qiayuan Company and its individuals. Objection to the service of high consumption restriction order
7. Pingdingshan Intermediate People’s Court (2018) Case No. 124, Yu 04 held that according to the "Supreme People's Court's Judgment and Ruling on Refusal to Enforce Criminal Cases", it is applicable. According to the provisions of Article 2, Paragraph 1 of the Interpretation of Several Legal Issues, if he has refused to report or falsely reported his property, violated the People's Court's order restricting high consumption and related consumption, etc., and refused to implement compulsory measures such as fines and detention, he shall be deemed to have It is "other circumstances in which the person who has the ability to execute but refuses to execute, and the circumstances are serious" stipulated in Article 313 of the "Criminal Law Interpretation" of the NPC Standing Committee of the National People's Congress.
8. Taiyuan Intermediate People's Court (2018). ) Jin 01 case held that based on the identified facts, the labor contract between the opponent and Shanxi Tianxing Ruomu Bioengineering Development Co., Ltd. has been terminated. Judging from the content of the agreement, the opponent is employed in the company and is entrusted to perform relevant duties. All documents have also been destroyed. Our Court’s (2018) Jin 01 No. 84 Order on Restricting High Consumption took measures to restrict high consumption on the grounds that the objector was the financial director of the company subject to enforcement. This was an error in factual determination and should be corrected.
9. In the Zibo Intermediate People's Court (2018) Case No. 41, the court held that the second paragraph of Article 3 of the "Regulations of the Supreme People's Court on Restricting High Consumption and Related Consumption of Persons Subject to Execution" stipulates that the person subject to execution shall If the executor is an entity, the enforcement court may impose consumption restriction measures on its legal representative, principal responsible person, person directly responsible for affecting debt performance, and actual controller. After the enforcement court served the execution notice and summons to him, the identity of the legal representative of the reconsideration applicant changed. During the execution of this case, the reconsideration applicant was still the chairman of the company. In view of the status of the chairman of the board of directors of the review applicant and his role as the legal representative of the company during the execution period, the enforcement court found that he actually controlled the company and took corresponding measures to restrict consumption of the review applicant Zhang Lingling, which was not inappropriate, and this court upheld the decision. Regarding the reconsideration applicant’s claim that the position of chairman has ceased to exist in name only, according to the industrial and commercial registration information, the company’s chairman has not changed. This court does not support the reconsideration applicant’s reason for reconsideration.
In Case No. 10 and Beijing No. 1 Intermediate People’s Court (2017) No. 311, the court held that Zhang Yi, as the legal representative of Sanwei Jizheng Company, the person subject to execution, had no rights before the company When fulfilling obligations determined by effective legal documents, the court shall pay the unit's property. The consumption restriction order also stipulates: "Anyone who uses personal property for personal consumption or engages in consumption activities prohibited by this order should apply to our hospital and can only proceed after approval." If Zhang Yi uses personal property for personal consumption, he should An application was made to the enforcement court, but this court did not support its request to lift the consumption restriction order.
11. In the Qingdao Shibei District People’s Court (2018) Lu 0203 Case No. 40, the court held that consumption restriction measures were an enforcement action by the People’s Court. After reviewing the execution objections and evidence raised by Chen Bolin, the legal representative of Xunlong Company, an interested party, the Qingdao Licang District Labor and Personnel Dispute Arbitration Committee issued the (20176) No. 65438 Award on August 5, 2065, confirming that Chen Bolin The labor relationship with Xunlong Company was terminated on June 4, 2002. Because Xunlong Company's business license was revoked and its industrial and commercial registration was frozen, it cannot be changed. And it is not the main person in charge, directly responsible person, actual controller, or shareholder or investor that affects the performance of debts of Xunlong Company, the person subject to execution. When he submits evidence to prove the above facts and raises objections to execution, imposing consumption restrictions on the legal representative of the person subject to execution who has been out of office for many years and is only in name will not help sanction evasion of execution, nor will it be conducive to building a social credit mechanism. This court supports his enforcement objection.