Civil Procedure Law Judicial Interpretation 2021

Property litigation preservation, refers to the court hearing the case, in order to prevent the party (the defendant) to transfer, conceal, sell the property before making a judgment, ex officio to the property protection measures, in order to ensure that in the future, after the judgment comes into force can be successfully implemented.2018 Property Litigation Preservation Judicial Interpretation of the Supreme People's Court on the People's Courts to deal with the case of property preservation a number of Provisions on Issues (Adopted at the 1696th meeting of the Trial Committee of the Supreme People's Court on October 17, 2016, and effective from December 1, 2016) In order to protect the legitimate rights and interests of the parties and interested parties in accordance with the law, and to regulate the handling of property preservation cases by the people's courts, these provisions are formulated in accordance with the Chinese People's **** and the National Civil Procedure Law and other laws, and in conjunction with the practice of adjudication and execution. Article 1 parties and interested parties apply for property preservation, shall submit an application to the people's court, and provide relevant evidence and materials. The application shall contain the following matters: (a) the identity of the person applying for preservation and the person to be preserved, the address of service, contact information; (b) the request and the facts and reasons based on; (c) the amount of the request for preservation or the subject matter of the dispute; (d) clear information about the property to be preserved or specific clues to the property to be preserved; (e) information about the property to be provided as security for the preservation of the property or the proof of the credibility of the security or the reasons for not providing security; (f) the reasons for not providing security; and (g) the reasons for not providing security; and (h) the reasons for not providing security; and (i) the reasons for not providing security; (ii) the reasons for the application for property preservation. (vi) other matters to be set out. After the entry into force of the legal instrument, before entering into the execution procedure, the creditor's application for property preservation shall state the production organization, symbol and main content of the legal instrument in force, and attach a copy of the legal instrument in force. Article 2 the people's court for property preservation, by the filing of the case, the trial body to make a ruling, generally should be transferred to the executive body for implementation. Article 3 the arbitration process, the parties apply for property preservation, shall be submitted through the arbitration institution to the people's court application and notice of acceptance of arbitration cases and other relevant materials. If the people's court decides to take the preservation measures or decides to reject the application, it shall deliver the ruling to the parties and notify the arbitration institution. Article 4 the people's court accepts the application for property preservation, it shall make a ruling within five days; the need to provide security, it shall make a ruling within five days after the provision of security; ruled to take preservation measures, it shall within five days to start the implementation. In urgent cases, a ruling must be made within forty-eight hours; where a ruling is made to take preservation measures, execution shall begin immediately. Article 5 the people's court in accordance with the provisions of article 100 of the civil procedure law shall order the person applying for preservation to provide security for the preservation of property, the amount of security shall not exceed thirty percent of the amount of the request for preservation; application for preservation of property is the subject of the dispute, the amount of security shall not exceed thirty percent of the value of the subject of the dispute. If an interested party applies for pre-litigation property preservation, it shall provide a guarantee equivalent to the amount of the request for preservation; if the situation is special, the people's court may deal with it at its discretion. During the period of property preservation, the security provided by the applicant for preservation is not sufficient to compensate for the losses that may be caused to the person being preserved, the people's court may order it to add the corresponding security; refuses to add, it can be ruled to lift or partially lift the preservation. Article 6 application for preservation or third party to provide property security for property preservation, shall issue a certificate of guarantee to the people's court. The certificate of guarantee shall set out the guarantor, the guarantee, the scope of the guarantee, the guaranteed property and its value, the guarantee liability and other content, and with relevant evidence. The third party for property preservation to provide guarantee security, shall submit to the people's court guarantee. The certificate of guarantee shall set out the guarantor, guarantee, guarantee, guarantee scope, guarantee liability and other content, and with relevant evidence. For property preservation guarantee, the people's court, upon examination, that violates the property law, security law, company law and other relevant legal prohibitions, shall order the applicant for preservation to provide other guarantees within a specified period of time; overdue, ruled that the application be rejected. Article 7 The insurer shall issue a certificate of guarantee to the people's court if it provides security for the property preservation by way of signing a property preservation liability insurance contract with the applicant for preservation. The certificate of guarantee shall state that the insurer shall compensate the loss suffered by the insured person due to the preservation of property due to the error of the application for property preservation, etc., and attach relevant evidential materials. Article VIII of the financial regulatory authorities approved the establishment of financial institutions in the form of independent guarantee for the property preservation, the people's court shall be permitted according to law. Article 9 parties apply for property preservation in litigation, the people's court may not require the provision of security in one of the following circumstances: (a) the recovery of alimony, maintenance, fostering, pensions, medical expenses, labor compensation, compensation for work-related injuries, and compensation for personal injury in traffic accidents; (b) marital and family disputes in the case of domestic violence and financial difficulties; (c) public interest litigation initiated by the people's procuratorate involving (iii) public interest litigation initiated by the People's Procuratorate involving compensation for damages; (iv) request for compensation for damages due to the infringement suffered by a person who has acted for the sake of justice; (v) the facts of the case are clear, the relationship between the rights and obligations is clear, and the possibility of preservation error is small; (vi) the applicant for preservation is a financial institution and its branches, such as a commercial bank, insurance company and so on, which are approved to be set up by the financial supervisory authority and have the ability to pay debts independently. After the entry into force of the legal instrument and before entering into the execution procedure, the people's court may not require the provision of security if the creditor applies for property preservation. Article 10 parties and interested parties applying for property preservation, shall provide the people's court with clear information on the property being preserved. The parties in the litigation for property preservation, for objective reasons can not provide clear information on the property being preserved, but provides a specific property clues, the people's court may decide to take property preservation measures. Article 11 the people's court in accordance with the provisions of paragraph 2 of article 10 of this provision to make a ruling on preservation, in the process of implementation of the ruling, the person applying for preservation can be established to the network implementation of the search and control system of the enforcement court, apply in writing through the system to query the property of the person being preserved. Where the person applying for preservation submits an application for inquiry, the execution court may utilize the network execution search and control system to inquire into the property within the scope of the ruling on preservation or the amount of preservation, and take corresponding measures of seizure, detention and freezing. Where the people's court fails to inquire into the property available for preservation by utilizing the network execution search and control system, it shall inform the person applying for preservation in writing. Article 12 the people's court inquires into the property of the person under preservation information, shall be kept confidential according to law. In addition to the property preserved in accordance with law, shall not disclose other property information of the person being preserved, and shall not be used outside the property preservation and enforcement of the relevant information. Article 13 the preserved person has more than one property for preservation, in the case of the preservation of the purpose can be realized, the people's court shall choose to its production and business activities have less impact on the property for preservation. The people's court for the preservation of plant, machinery and equipment and other production and business property, designated by the preserved person for custody, shall be allowed to continue to use. Article 14 of the preserved property is motor vehicles, aircraft and other special movable property, in addition to the whereabouts of the preserved person is unknown, the people's court shall order the preserved person to report in writing on the ownership of the movable property and the possession and use of the situation, and to be verified. Article 15 the people's court shall, in accordance with the ruling on the preservation of property to take appropriate measures of seizure, detention and freezing. Where the overall value of the land, houses and other real estate available for preservation is significantly higher than the amount stated in the preservation ruling, the people's court shall take measures of seizure, detention and freezing of the corresponding part of the value of the real estate, unless the real estate is not divisible in terms of use or the division of the real estate will seriously diminish its value. Where measures are taken to freeze funds in a bank account, the people's court shall specify the specific amount to be frozen. Article 16 the people's court in the property preservation to take the seizure, detention, freezing measures, the need for the relevant units to assist in the registration formalities, the relevant units shall be in the ruling and assistance in the implementation of the notice immediately after the delivery. For the same property has more than one ruling and notice of assistance in execution, shall be in accordance with the time of delivery for registration procedures. Article 17 the interested party applies for pre-litigation property preservation, in the people's court to take preservation measures within thirty days of filing a lawsuit or apply for arbitration, pre-litigation property preservation measures are automatically converted to litigation or arbitration in the preservation measures; into the implementation of the program, the preservation measures are automatically converted to the implementation of the sealing, seizure, freezing measures. Pursuant to the preceding paragraph, the automatic conversion to preservation measures in litigation or arbitration or to seizure, detention or freezing measures in execution, the period is calculated consecutively, and the people's court does not need to re-create the ruling. Article 18 of the application for preservation of property preservation shall apply for renewal of seven days before the expiration of the period of preservation to the people's court; late application or failure to apply, bear the legal consequences of not renewing the preservation of property preservation. When the people's court carries out property preservation, it shall inform the person applying for preservation in writing of the date of expiration of the period of preservation and the matters in the preceding paragraph relating to the application for renewal of preservation. Article 19 during the retrial review, the debtor applies for the preservation of the effective legal instrument determines the payment of property, the people's court shall not accept. During the retrial, the original legal instrument in force to suspend the implementation of the parties to apply for property preservation, the people's court shall accept. Article 20 of the property preservation period, the preserved person requesting the preserved property disposal, the people's court, after examination, that does not harm the legitimate rights and interests of the applicant for preservation and other enforcement creditors, may be permitted, but shall supervise the preserved person in accordance with a reasonable price in the specified period of time for the disposal, and control of the corresponding price. If the preserved person requests to dispose of the preserved property that is the subject of the dispute, the consent of the person applying for preservation shall be required. The people's court permits the preserved person to dispose of the preserved property on its own, shall notify the applicant for preservation; if the applicant for preservation does not agree, the applicant may file an objection in accordance with the provisions of article 225 of the civil procedure law. Article 21 the preservation court in the first to take the seizure, detention, freezing measures for more than one year after the preserved property is not disposed of, in addition to the preserved property is the subject matter of the dispute, in the first waiting for the seizure, detention, freezing of the implementation of the court may request the preservation of the preservation of the court to the preserved property transferred to the implementation of the court. However, if the judicial interpretation has other special provisions, its provisions shall apply. The preservation court and the first waiting for the seizure, detention, frozen execution court on the transfer of the property under preservation dispute, can be reported to the * * * the same higher court to designate the property of the execution of the court. The *** same higher court shall designate the execution court on the basis of the specific circumstances of the case, such as the type and location of the property being preserved, the relationship between the amount of each claim and the value of the property being preserved, and urge it to dispose of the property being preserved within the designated period of time. Article 22 In a property dispute case, the people's court shall rule that the people's court shall authorize the release of the preserved property if the preserved person or a third party provides sufficient and effective security to request the release of the preserved property. If the preserved person requests the release of the property that is the subject of the dispute, the consent of the person applying for preservation shall be required. Article 23 after the people's court to take property preservation measures, one of the following circumstances, the person applying for preservation shall promptly apply for the release of preservation: (a) to take pre-litigation property preservation measures within thirty days of not filing a lawsuit or apply for arbitration; (b) the arbitration institution does not accept the application for arbitration, permit the withdrawal of the application for arbitration, or according to the withdrawal of the application for arbitration; (c) the application for arbitration or the request for arbitral awards (c) the arbitration application or request is rejected by the arbitration award; (d) other people's courts do not accept the lawsuit, or permit the withdrawal of the lawsuit or handle the lawsuit as withdrawn; (e) the lawsuit or lawsuit request is rejected by the other people's courts; (f) the person applying for the release of the preservation of the other circumstances that the application for the release of the preservation of the people's courts. The people's court shall, upon receipt of the application for lifting the preservation, rule on lifting the preservation within five days; in case of emergency, it must rule on lifting the preservation within forty-eight hours. The applicant for preservation fails to timely apply for the people's court to lift the preservation, shall compensate for the losses suffered by the preserved person due to the property preservation. The preserved person applies for lifting the preservation, the people's court after examination that conforms to the provisions of the law, shall within the period stipulated in paragraph 2 of this article ruling to lift the preservation. Article 24 of the property preservation ruling in the implementation, the people's court finds that the content of the preservation ruling is inconsistent with the actual situation of the property being preserved, shall be revoked, changed or corrected. Article 25 the application for preservation, the person under preservation of the preservation ruling or dismissal of the application ruling, may from the date of delivery of the ruling within five days of the people's court to apply for reconsideration of the ruling once. The people's court shall examine the application for reconsideration within ten days from the date of receipt. Where an application for reconsideration is filed against a ruling on preservation, the people's court shall, upon examination, rule that the ruling be revoked or changed if the reasons are valid; where the reasons are not valid, it shall rule that the ruling be rejected. The ruling on the dismissal of the application for reconsideration, the people's court, upon examination, the grounds are established, the ruling is revoked, and take preservation measures; if the grounds are not established, the ruling is dismissed. Article 26 the application for preservation, the preserved person, the interested party that the implementation of the preservation ruling in the implementation of the act of execution in violation of the provisions of the law to file a written objection, the people's court shall, in accordance with the provisions of article 225 of the civil procedure law, review and deal with. Article 27 the people's court for the litigation dispute other than the subject matter of the property preservation, outsiders to the preservation ruling or preservation ruling in the process of implementation of the implementation of the act of dissatisfaction, based on the substantive rights of the preserved property put forward written objections, the people's court shall, in accordance with the provisions of Article 227 of the Civil Procedure Law, review and deal with and make a ruling. If the outsider or the person applying for preservation is not satisfied with the ruling, he or she may, within fifteen days from the date of delivery of the ruling, file an objection to the execution with the people's court. After the people's court ruled that the outsider's objection is established, the application for preservation within the period prescribed by law did not file a lawsuit against the implementation, the people's court shall, within seven days from the date of the expiration of the deadline for prosecution of the property being preserved to lift the preservation. Article 28 In maritime litigation, the maritime claimant applies for the preservation of maritime claims, and the Law of the People's Republic of China on Special Procedures for Maritime Litigation and relevant judicial interpretations shall apply. Article 29 These provisions shall come into force from December 1, 2016 onwards. The judicial interpretations published before the implementation of these provisions are inconsistent with these provisions, these provisions shall prevail.