1. To judge whether there is a seizure situation exceeding the standard in the execution case, we should first find out the amount of the execution target of the case, and then entrust a professional evaluation agency to evaluate the value. Further judging whether the seized property exceeds the amount of the execution target
In the execution ruling No.47 of the case of Yao Hui private lending dispute, application for recognition and enforcement of court judgment and arbitral award (215) heard in the Supreme People's Court, the Supreme Law holds that, first of all, to judge whether there is an excessive seizure in the execution case, the amount of the execution target of the case should be ascertained first. In the execution objection procedure of this case, there is a dispute between the two parties about the amount of the execution target involved in the case. This fact is of great significance for judging whether the seizure exceeds the standard, and Hainan High Court has determined that there is no seizure exceeding the standard in this case without examination, which has constituted that the facts are unclear. Secondly, the evaluation report submitted by the executed person's Innovation Bookstore, because it is unilaterally entrusted or has exceeded the validity period, is indeed not suitable as the basis for judging whether it exceeds the standard or not. However, this case was put on file for execution in July 215, and the executor Yao Hui has applied for evaluation. Now, the executor Innovation Bookstore advocates over-standard seizure, and the Hainan Higher People's Court should immediately entrust an evaluation of the property involved, and determine whether there is over-standard seizure according to the entrusted evaluation price.
2. If the parties put forward the seizure exceeding the standard, the people's court should not only look at the evaluated price of the subject matter, but also consider the interest for delayed performance, the land use right transfer fee owed by the person subjected to execution, various taxes and fees, auction commission, auction of the subject matter transfer fees, etc. And the proportion that can be lowered in accordance with the law when determining the auction reserve price.
In the reconsideration ruling of the execution case of Ningxia Fulong (Zhejiang) Catering and Entertainment Co., Ltd. and Guangsha Construction Group Co., Ltd. (213) in the Supreme People's Court, the Supreme Court held that the case really exceeded the amount of the execution target simply from the evaluation price of the subject matter, but whether the seizure of the excess part should be lifted should also be determined in combination with the specific circumstances of the case. The enforcement court has the right to consider such factors as delayed performance interest, unpaid land use right transfer fee, various taxes and fees, auction commission, transfer fees of the auction target, and the proportion that can be lowered according to law when determining the auction reserve price. At the same time, the subject matter of this case "Fulong Hotel" is a project under construction, which should not and is not convenient to be divided according to the plan. As for the exclusion of some properties that were disposed of by the executor without authorization or by other courts from the auction target, it was caused by the illegal registration of property rights by Chen Minfu, the legal representative of the executor. Since it has become a fait accompli and is difficult to deal with, it is deducted from the auction target, which does not mean that the auction project under construction is a suitable subject. Therefore, it is not improper for the enforcement court in this case to seal up and dispose of the subject matter as a whole.
in the execution ruling of Tangshan renda real estate development co., ltd. and Han Wenjun execution review case (217) No.18, the Supreme Court held that whether there is an excessive amount of seizure should be measured between the value of the execution target and the value of the seizure target. The applicant for reconsideration proposed that the amount to be executed was 37 million yuan, and the land with a value of nearly 6 million yuan was sealed up in excess of the bid, but no corresponding evidence was provided to confirm it, and the execution target determined in the execution certificate of this case was 55 million yuan, as well as premium, liquidated damages for delay, lawyer's fees, notarial fees for execution certificates and other reasonable expenses. Therefore, it is difficult to establish the facts and reasons that the applicant for reconsideration claims that the amount to be executed is 37 million yuan and the amount exceeding the standard is sealed up without evidence, and our hospital does not support it.
3. Waiting for seizure is not a formal seizure in nature, so it does not have the effect of formal seizure, and there is no problem of excessive seizure.
In the case of enterprise loan dispute, application for recognition and enforcement of court judgment and arbitral award between Lanzhou General Machinery Manufacturing Co., Ltd. and Lanzhou New District Huiyin Microfinance Co., Ltd. tried in the Supreme People's Court, the Supreme Court held that, According to the first paragraph of Article 28 of the Provisions on the Attachment, Seizure and Freezing of Property in Civil Execution of People's Courts, other people's courts may wait for the attachment, seizure and freezing of property that has been attached, seized or frozen by people's courts. If the seal-up, seizure or freezing is lifted, the first registered seal-up, seizure or freezing will take effect automatically. According to this, waiting for seizure is not a formal seizure in nature, and it does not have the effect of formal seizure. Waiting for seizure only produces an expected effect, which is similar to the behavior with undetermined effect. No.2 Objection Ruling of Gansu Higher People's Court found that the "seizure effect has not yet appeared" of waiting for seizure measures was not improper. At the same time, the waiting for the seizure of the land use right under the name of Lantong Company by Gansu Higher People's Court is a litigation preservation measure, which is a temporary measure in nature and effect. Its main purpose is to prevent Lantong Company from transferring its property, but objectively it has not disposed of the preservation target. To take a step back, even if this case enters the execution procedure in the future, and the waiting seizure of the land use right under the name of Lantong Company in this case is transformed into a formal seizure, and then the legal effect of the formal seizure occurs, how much of the proceeds from the realization of the two land use rights seized can be used to realize the creditor's rights in this case depends on the execution of the previous seizure cases. In view of this, the measures taken by Gansu Higher People's Court to freeze the total deposits of 18,19,58 yuan in three bank accounts under the name of Lantong Company do not constitute repeated preservation. Lantong Company's reasons for the excessive preservation by Gansu Higher People's Court are inconsistent with the facts, and are unfounded in the law, so our court will not support them.
4. In the process of examining and executing the objection, the people's court should limit the amount of "obviously exceeding the standard" stipulated in the judicial interpretation in combination with the increasing creditor's rights and the possible price reduction during the judicial auction. We should be lenient
In the case of Nantong Yingfeng Real Estate Investment and Development Co., Ltd. and Shanghai Fengye Real Estate Development and Management Co., Ltd. and Nantong Yingfeng Real Estate Investment and Development Co., Ltd. jointly developing real estate contracts, applying for recognition and enforcement of court judgments and arbitral awards (215) No.28 execution ruling, the Supreme Court held that in this case, the subject matter sealed up by Jiangsu High Court was real estate. Because the real estate involved in the case has not been evaluated, it is impossible to accurately calculate its value, and the Jiangsu High Court can only comprehensively estimate the value of the seized property. Therefore, the limit of "the amount obviously exceeding the standard" stipulated in the judicial interpretation should be appropriately lenient. Considering that the amount of creditor's rights is still increasing, there is still a mortgage on the seized real estate, combined with the uncertainties of judicial auction and market fluctuations, from the current seized property, Jiangsu Higher People's Court has not obviously seized the property beyond the standard.
In the Supreme People's Court's case of Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and other private lending disputes, application for recognition and enforcement of court judgments and arbitral awards, the Supreme People's Court (215) Zhi Fu Zi No.12 execution ruling, the Supreme Court held that if the judgment on the value of the seized subject matter was not evaluated, It can be comprehensively determined by referring to the corresponding market price and taking into account the price reduction factors in the process of realizing judicial auction. If it is evaluated, the evaluation report can be used as the main basis for determining the value of the subject matter. According to the relevant provisions of the evaluation auction, the first auction takes 8% of the evaluation price as the reserve price, which can be further reduced by 2% for each auction. If the sealed subject matter is auctioned three times, the realized value can be as low as 16 million yuan. However, the total amount of Wang Jiayong's creditor's rights principal of 1 million yuan, interest and delayed performance interest is basically equivalent to the value of the seized real estate and the frozen equity of 1 million yuan. Therefore, there is no obvious over-standard seizure and freezing in this case.
5. although the sealed-up commercial house is a project under construction, it has obtained the pre-sale permit of commercial house and can be sold to the outside world. Its value should be determined by reference to factors such as the sales price of surrounding shops and the agreement of both parties in the loan contract.
In the civil loan dispute between Gansu Yongrui Real Estate Development Co., Ltd. and Gansu Yongrui Real Estate Development Co., Ltd. and Li Ximing, the case of application for recognition and enforcement of court judgment and arbitration award (216) No.3 enforcement ruling, the Higher People's Court of Gansu Province held that the seized commercial house was a project under construction and its value could not be equal to that of the completed commercial house. Yongrui Company did not provide sufficient evidence to prove the specific value of the commercial house and the amount exceeding the standard, so it ruled that the objection reason was not supported. However, after examination by the Supreme Court, it is considered that the seized property is a project under construction, but it has obtained the pre-sale permit of commercial housing and can be sold to the outside world. Combined with the sales price of surrounding shops and the agreement of both parties in the loan contract, the value of the seized 36,73.83 square meters property has obviously exceeded the amount of 2,45,554.8 yuan applied for preservation. On this basis, it is ruled that the part that obviously exceeds the standard should be lifted.
6. The key to the people's court's examination of the outsider's execution of the objection lawsuit is whether the outsider has enough rights to exclude enforcement. As for whether there is an over-standard seizure of property, it is an objection to the execution
In the civil ruling of the retrial case of Yang Junhua and Xing Shuangquan (215) Min Shen Zi No.215 heard in the Supreme People's Court, the Supreme Court held that because the purpose of the outsider's lawsuit of execution objection was to exclude the execution procedure, the people's court examined whether the outsider had the right to exclude the enforcement of the subject matter. However, in the process of execution, which Yang Junhua wants to prove, there is a problem of over-standard seizure of property, which is aimed at whether the execution behavior is illegal or not, and does not belong to the scope of review of the objection lawsuit filed by outsiders.
7. Objecting to the preservation ruling is a reconsideration case, and objecting to the specific implementation behavior of the court based on the preservation ruling is an execution objection case
In the execution ruling No.73 of the Supreme Law of Tangshan Kuntai Real Estate Development Co., Ltd. (216), which was tried in the Supreme People's Court, the Supreme Court held that since this case was Kuntai Company's objection to the specific seizure behavior rather than the general preservation ruling, it should be reviewed. It is correct for Hebei Higher People's Court to apply Article 225 of the Civil Procedure Law of the People's Republic of China to examine and handle this case and inform the parties that they have the right to apply for reconsideration. However, the case number of its reconsideration case, namely (216) Ji Zhifu No.123, is improper in executing the ruling and should be corrected to the case number of objection case. Following the case number of Hebei High Court, the application of Chongjian Company was established as (216) Supreme Law Enforcement Case No.399. After understanding the relevant situation, our court has corrected the case number to (216) Supreme Law Enforcement No.73, and conducted a review according to the reconsideration procedure.
8. In the litigation procedure, the review of objections and reconsideration to the preservation measures coincides with the litigation trial, and after the judgment takes effect and enters the execution procedure, Objections or reconsiderations on property preservation that have not been reviewed and concluded should be automatically converted into objections or reconsiderations on enforcement actions in the enforcement procedure
In the case of the Supreme People's Court's trial of Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and Chen Chunrui, Yunnan Jinfudi Real Estate Development and Management Co., Ltd. and other private lending disputes, applications for recognition and enforcement of court judgments and arbitral awards (215), the Supreme Court held that objections and reconsiderations on litigation preservation measures, First of all, according to Article 1 of the Civil Procedure Law of the People's Republic of China, litigation preservation is a preservation measure taken by the people's court to ensure the smooth execution of the judgment before the judgment of a civil case. Article 168 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of the People's Republic of China also clearly stipulates that the preservation ruling shall be automatically turned into the seizure, seizure and freezing measures under execution after it has not been revoked or dissolved by the people's court according to law. Therefore, litigation preservation measures are essentially enforcement of compulsory measures. Secondly, the objection and reconsideration of litigation preservation measures are essentially the objection and reconsideration of execution procedures. In the litigation procedure, the review of objections and reconsideration of preservation measures coincides with the litigation trial. After the judgment takes effect and enters the execution procedure, the objections or reconsideration of property preservation that have not yet been reviewed shall be automatically turned into objections or reconsideration of execution behavior in the execution procedure. Therefore, after entering the execution procedure, the objection and reconsideration of litigation preservation in this case have essentially turned into objection and reconsideration in execution.
9. If there is a mortgage on the sealed-up subject matter, the party who claims that the sealed-up subject matter exceeds the standard shall bear the burden of proof for the value of the sealed-up subject matter after deducting the mortgage.
In the case of Wang Shaojie, Zheng Zusu and other equity transfer disputes, application for recognition and enforcement of court judgments and arbitral awards (215), the Supreme Court held that in this case, When Sanming Intermediate People's Court sealed up the construction in progress of Fortune Garden, all the projects had been mortgaged to Youxi Sub-branch of China Industrial and Commercial Bank, and Yonglong Company and Zhang Hegan did not provide relevant evidence to prove the value of the construction in progress after deducting the mortgage creditor's rights. Therefore, it is not improper to execute the court's seal-up.
1. There should be a difference between the execution objection during the litigation preservation period and the seizure objection exceeding the standard in the execution stage. The people's court should properly and strictly grasp the seizure objection exceeding the standard during the preservation period, and allow the parties to provide the unilaterally entrusted appraisal opinions as a reference.
In the execution ruling No.14 of the Supreme Law Enforcement Review Case (217) of Xiong Daohai Construction Contract Dispute tried in the Supreme People's Court, the Supreme Court held that the litigation property preservation was limited to the requested scope. This case belongs to the execution of litigation property preservation ruling. The seizure, seizure and freezing of the property of Guizhou Jian 'an Company, the guarantor, should generally be limited to the property value determined by litigation property preservation ruling. At present, there is no clear stipulation in the law and judicial interpretation as to whether it is necessary for both parties to entrust or appoint a judicial authentication institution to evaluate the value of the seized or frozen property in the execution of the litigation property preservation ruling. Therefore, since the parties