Property preservation refers to the compulsory measures taken by the people's court to restrict the disposition of the parties' property or the disputed subject matter in order to ensure the execution of the judgment that will take effect in the future or avoid property losses before or after the prosecution of the interested parties.
Second, what measures are there for property preservation?
According to the provisions of the Civil Procedure Law, property preservation can be sealed up, detained, frozen or other methods prescribed by law.
1, seized; It refers to a property preservation measure that the people's court seals the property that needs to be preserved after counting to prevent any unit or individual from disposing of it. Seizure refers to a property preservation measure that the people's court moves the property that needs to be preserved to a certain place and detains it to prevent any unit or individual from disposing of it.
When the people's court takes property preservation measures to seal up or detain property, it shall properly keep the sealed-up or detained property. The parties concerned may be responsible for keeping the seized articles, but may not use them.
2. freezing; It refers to a property preservation measure that the people's court informs the relevant financial units according to law that the respondent may not withdraw or transfer its deposits. No unit or individual may use the funds frozen by the people's court according to law. Property that has been sealed up or frozen shall not be sealed up or frozen again.
3. Other ways permitted by law; Including ordering the respondent to provide a guarantee. Ordering the respondent to provide a guarantee refers to the property preservation measures that the people's court orders the guarantor to issue a written guarantee or the respondent provides a bank guarantee or a physical guarantee. For example, the respondent owes the applicant a loan of 5 million yuan, and guarantees the applicant to repay 5 million yuan with a building of considerable value. In this case, the people's court can lift the security measures of freezing the bank deposits of the respondent, so that the respondent can operate normally. In addition, detention, extraction of the respondent's labor income, prohibition of the respondent's agency, etc. , also belongs to the way of property preservation.
When the people's court takes preservation measures for seasonal commodities, fresh, perishable and other items that are not suitable for long-term preservation, it may order the parties concerned to deal with them in time, and the people's court shall preserve them; When necessary, the people's court shall sell it and keep the price.
The Supreme People's Court's judicial interpretation of the implementation work has very clear and specific provisions on the above implementation methods, and property preservation measures can be implemented in accordance with relevant implementation provisions.
Three, property preservation must meet what conditions?
1, it must be an emergency, and the legal property rights and interests of the applicant will be irretrievably damaged if property preservation is not taken;
2. The interested party must apply to the people's court where the property is located, and the court takes the initiative to take property preservation measures without authority;
The applicant must provide a guarantee, otherwise the court will reject the application.
4, the case must have the content of payment, this is a lawsuit of payment;
5. It must be the behavior of one party that may make the judgment difficult to execute;
6. The application must be made during the proceedings. When necessary, the court may also decide to take litigation property preservation measures ex officio;
7. The applicant provides a guarantee. If the court has not ruled to provide a guarantee, this restriction shall not apply.
IV. Proceedings for property preservation
I. In the proceedings
1. The concept of property preservation in litigation
Property preservation in litigation refers to the compulsory measures taken by the people's court to restrict the disposition of the parties' property or the disputed subject matter after accepting the case and before making a judgment.
It takes several months or even longer for the people's court to accept civil cases before making an effective judgment. law
After the court decision takes effect, if the debtor fails to perform his obligations, it will take some time for the creditor to apply for enforcement. In this process, if the debtor conceals, transfers or squanders disputed property or property used for execution afterwards, it will not only intensify the contradictions between the parties, but also make the effective judgment unenforceable. Some controversial items, such as fruits and aquatic products, are perishable and must be treated and protected in time.
Save the price to reduce the loss of the parties.
2. Applicable conditions of property preservation in litigation
Property preservation in litigation shall meet the following conditions:
First, a lawsuit against disputed property that requires property preservation must be a lawsuit of payment, that is, the right of claim in this case has the content of property payment.
Second, the future effective judgment cannot be executed or is difficult to execute due to subjective and objective factors. Subjective factors include: the parties have the behavior of transferring, destroying or hiding property or may take such behavior; The objective factor is that the subject matter of litigation is perishable, and if preservation measures are not taken in time, it will cause great losses.
Third, property preservation in litigation occurs after the civil case is accepted and before the court makes an effective judgment. In the procedure of first instance or second instance, if the case has not been concluded, you may apply for property preservation. If the court decision has come into effect, the parties may apply for enforcement, but may not apply for property preservation.
Fourth, property preservation in litigation should generally be submitted by the parties in writing. If the parties do not apply, the people's court may also order the adoption of property preservation measures when necessary. However, people's courts rarely make rulings on property preservation ex officio, because according to the provisions of the State Compensation Law, if people's courts make mistakes in taking property preservation ex officio or executing it first, they shall be liable for compensation according to law.
Fifth, the people's court may order the parties to provide a guarantee. The people's court may, according to the application of the applicant, order the applicant to provide a guarantee before taking property preservation measures in litigation. The amount of guarantee provided shall be equivalent to the amount requested for preservation. If the applicant fails to provide a guarantee, the people's court may reject the application. If the property preservation error in the lawsuit causes losses to the respondent, the respondent can directly obtain compensation from the property guaranteed by the applicant.
Second, before litigation
Pre-litigation property preservation means that in an emergency, if the court does not take property preservation measures immediately, the legitimate rights and interests of interested parties will be irretrievably damaged, so the law gives interested parties the right to apply to the people's court for property preservation measures before prosecution.
Pre-litigation property preservation is an emergency preservation measure to protect interested parties from irreparable losses.
According to Article 10 1 of the Civil Procedure Law, the applicable conditions for property preservation before litigation are:
1. The application for pre-litigation property preservation must have the content of payment, that is, the applicant's future litigation request has the content of property payment.
2. In case of emergency, failure to take corresponding preservation measures immediately may cause irreparable losses to the legitimate rights and interests of the applicant.
3. The interested party applies for pre-litigation property preservation. Interested parties, that is, people who have disputes with the respondent or think that their rights have been infringed by the respondent.
4. The applicant for pre-litigation property preservation must provide guarantee. If the applicant fails to provide a guarantee, the people's court shall reject the application for property preservation filed by the applicant before the prosecution.
According to the provisions of the Civil Procedure Law and the Supreme Court's Opinions on the Application of the Civil Procedure Law, property preservation before litigation and property preservation during litigation must pay preservation fees, which shall be implemented with reference to the Measures for Litigation Fees of People's Courts.
The applicant for pre-litigation property preservation, that is, the interested party, must bring a lawsuit or arbitration within 30 days after the people's court takes preservation measures, so that disputes related to the preserved property can be resolved through trial. If the interested party fails to bring a suit in a people's court or apply to an arbitration institution for arbitration within 30 days, the people's court shall lift the property preservation measures.
Three. Pre-litigation behavior
China's Patent Law, Trademark Law, Copyright Law and other laws stipulate that in order to safeguard the legitimate rights and interests of the applicant, the intellectual property right holder or interested party may apply to the court to take measures to order the respondent to stop the infringement of the patent right, trademark right or copyright, that is, "stop the infringement before litigation", which is called "pre-litigation behavior preservation" in procedural law. Paris convention for the protection of industrial property
Article 9 and Article 10 stipulate that the obligee has the right to take appropriate legal remedies against "illegally affixing trademarks or trade names", "counterfeiting marks of origin and producers" and "unfair competition" in order to effectively stop these illegal acts, including the right of interested parties to apply for stopping pre-litigation property preservation.