Collective Access of Assets involving Civil Enforcement of Courts to China Beijing Equity Exchange for Judicial Auction

 2018-06-19  33


· Document Number:No. 289 [2013] of the Higher People's Court of Beijing Municipality

· Area of Law: Legislative Affairs

· Level of Authority: Local Judicial Documents

· Date issued:08-14-2013

· Effective Date:10-01-2013

· Status: Effective

· Issuing Authority: Higher People's Court of Beijing Municipality

 

Provisions of the Higher People's Court of Beijing Municipality on the Collective Access of the Assets involving Civil Enforcement of Certain Courts to China Beijing Equity Exchange for Judicial Auction (for Trial Implementation)
(No. 289 [2013] of the Higher People's Court of Beijing Municipality on August 14, 2013)
In order to implement the requirements of the Supreme People's Court that “the auction activities entrusted by a people's court shall be conducted at a uniform trading place or on a network platform determined by the relevant administrative department”, further regulate the entrusted auction work conducted by courts of Beijing Municipality, dispose the assets involving civil enforcement in an efficient and transparent manner, achieve the maximization of property values, guarantee the legitimate rights and interests of the parties, and safeguard judicial justice, these Provisions are formulated in accordance with the Several Provisions of the Supreme People's Court on the Assessments and Auctions Entrusted by People's Courts, and in light of the actual circumstances of the enforcement work of this Municipality.
I. General Provisions
Article 1 The Judicial Expertise and Auction Office (hereinafter referred to as the “JEAC”) and the Enforcement Bureau of the Higher People's Court of Beijing Municipality shall be responsible for administering and coordinating the judicial auction work of this Municipality in a unified manner.
Article 2 The judicial auction of the assets involving civil enforcement entrusted by the No. 1 Intermediate People's Court of Beijing Municipality, the People's Court of Chaoyang District, the People's Court of Haidian District and the People's Court of Daxing District (hereinafter referred to as “pilot courts”) shall be uniformly conducted on the litigation asset network trading platform of the China Beijing Equity Exchange (hereinafter referred to as the “CBEX”).
Article 3 Any auction institutions which are selected in the list of the Higher People's Court of Beijing Municipality may sign up for participating in the judicial auction work entrusted by pilot courts. The finally entrusted auction institutions shall be determined randomly by the JEAC of the Higher People's Court of Beijing Municipality among the auction institutions which sign up for participating in the judicial auction work.
Where the values of the properties under judicial auctions are relatively large or for cases with special circumstances and deemed necessary by entrusting courts, the JEAC may decide to select randomly three or more auction institutions for joint auction. The relevant rules will be prescribed separately.
Article 4 Where online auction is inappropriate to be conducted for any case with special circumstances, a pilot court shall report to the JEAC and the Enforcement Bureau of the Higher People's Court of Beijing Municipality for approval.
II. Division of Functions in Auction
Article 5 The JEAC of the Higher People's Court of Beijing Municipality shall perform the following main functions:
(1) Being responsible for the administration and guidance in the process of judicial auction, and coordinating in solving the problems in work.
(2) Selecting and determining auction institutions.
(3) Leading in organizing the formulation of auction announcements, auction rules, instructions for bidding, bidding agreement and other model auction documents.
Article 6 The Enforcement Bureau of the Higher People's Court of Beijing Municipality shall perform the following main functions:
(1) Supervising and guiding the entrusted auction work conducted by the enforcement departments of pilot courts.
(2) Urging the correction of the violations of these Provisions by the enforcement departments of pilot courts during the entrusted auction work.
(3) Handling the requests for instructions made by the enforcement departments of pilot courts on significant, difficult and complex issues.
(4) Coordinating in resolving the disputes arising from the auction work between the enforcement departments of pilot courts and other courts of this Municipality or courts in other locations.
(5) Other matters which shall be subject to the supervision and guidance of the Enforcement Bureau of the Higher People's Court of Beijing Municipality.
Article 7 The departments responsible for the relevant work of pilot courts shall perform the following main functions:
(1) Examining whether the materials transferred by the enforcement departments are complete.
(2) Conducting online report of auction institutions selected and determined by the JEAC of the Higher People's Court of Beijing Municipality.
(3) Beijing responsible for handling the formalities for entrusted auction.
(4) Notifying or coordinating with relevant departments of these courts in notifying the parties, known holders of security right , holders of preemptive right or other holders of preferential right, among others, of the relevant matters concerning participating in judicial auction.
(5) Transferring and delivering the relevant materials on judicial auction.
(6) Examining according to law the auction announcements and other documents drafted by auction institutions.
(7) Examining and determining according to law the scope of publishing of auction announcements.
(8) Coordinating and supervising the work of the CBEX and auction institutions.
(9) Beijing responsible for other procedural matters concerning entrusted auction.
Article 8 Auction institutions shall perform the following main functions:
(1) Contacting with the CBEX in a timely manner to communicate its acceptance of entrusted auctions.
(2) Reviewing the subject matters to be auctioned, being familiar with the subject matters to be auctioned, getting an accurate and complete knowledge of the status quo of the subject matters, and timely communicating and contacting with pilot courts when problems are found.
(3) Drafting auction announcements, auction rules, instructions for bidding, bidding agreement, letters of confirmation for the conclusion of auctions and other auction documents, and timely submitting the relevant documents to pilot courts for examination.
(4) Contacting announcement media, releasing auction announcement, and reporting to pilot courts in a timely manner.
(5) Conducting display, publicity and investment attraction of the subject matters to be auctioned, and accepting the consultation of interested bidders.
(6) Submitting the formal documents of auctions to the CBEX prior to the date of pre-display of the subject matters to be auctioned.
(7) Presiding over auction bidding.
(8) Issuing the reports on auction conclusion or reports on abortive auction.
(9) Other matters that shall be handled by the auction institutions.
Article 9 The CBEX shall perform the following main functions:
(1) Simultaneously releasing the auction announcements submitted by auction institutions on the website of the CBEX.
(2) Providing auction sites, arranging auction venues, and maintaining auction order.
(3) Being responsible for accepting bidders' signing up for registration, and organizing bidders to sign on relevant auction documents.
(4) Providing the relevant equipment and technical services related to online bidding.
(5) Acting as agents in collection and refund of deposits and handling the formalities thereof.
(6) Making a video and audio recording of the process of auctions, and submitting the audio and video products to auction institutions.
(7) Providing auction institutions with the auction quotation record lists.
(8) Issuing, as the circumstances may require, the certificates for floor trading disposal of litigation assets to pilot courts, auction institutions, buyers and other parties concerned.
(9) Other matters that shall be handled by the auction institutions.
III. Execution of Auction
Article 10 Auction institutions shall, prior to the release of auction announcements, submit to the CBEX letter of authorization for auction, assessment reports, the auction announcements which have passed the examination of the departments responsible for relevant work of pilot courts, and other relevant documents.
Article 11 Auction institutions shall, within the time limits as required by the departments responsible for relevant work of pilot courts, release auction announcements via designated media, and contact relevant entities to simultaneously release them on the “People's Courts Litigation Assets Website”, the “Beijing Court Website”, and the website of the CBEX.
Article 12 Auction institutions shall display and introduce to interested bidders the information on the subject matters to be auctioned, conduct publicity for investment attraction, and be responsible for providing materials and answering consultation inquiries. The display duration shall be not less than two days. Both the material subject matters and the evaluation reports, notification letters on circumstances of flaws and other documents and instruments related to subject matters shall be displayed.
Article 13 The Higher People's Court of Beijing Municipality shall designate special accounts for deposits, and authorize the CBEX to handle the formalities for collecting and refunding deposits on its behalf. Deposits shall be managed in strict accordance with financial and economic disciplines, and may by no means be embezzled, misappropriated or withheld.
After judicial auctions are concluded, the CBEX shall, within three working days, transfer the deposits of buyers to the designated accounts of pilot courts, and concurrently refund the deposits paid by other bidders.
Article 14 The CBEX shall be responsible for handling the bidding registration formalities, and organize bidders' signing of auction rules, instructions for bidding, bidding agreement and other auction documents. Bidders shall handle bidding formalities upon the strength of financial receipt vouchers for deposits and other relevant certification materials.
Where there are any special requirements for bidders' qualification, such requirements shall be indicated in the auction announcements and instructions for bidding.
Article 15 Before an auction is held, the CBEX shall notify the pilot court of the number of bidders and the total amount of the prepaid deposits.
The CBEX and pilot courts shall strictly keep confidential the information of bidders.
Article 16 Where qualified bidders are generated after expiry of the auction announcement periods, auction institutions shall execute auction biding at the CBEX. Auction institutions shall be responsible for presiding over the judicial auction activities, and the CBEX shall be responsible for providing auction sites, arranging auction venues, maintaining auction order, providing online bidding trainings, and providing auction quotation record lists and other services, and keep a visual record of the whole process of auctions.
Article 17 The departments responsible for the relevant work of pilot courts shall, five days prior to the start of auctions, notify or coordinate with the relevant departments of these courts in notifying the parties concerned, known holders of security right, holders of preemptive right or other holders of preferential right of the relevant matters concerning the participation in judicial auction on the dates when auctions are convened.
Article 18 Holders of preemptive right shall obtain the written confirmation of their bidding qualification by pilot courts, and may participate in bidding to claim for their preemptive right only after handling the bidding registration formalities as prescribed. Those failing to be present upon notification to participate in bidding or failing to handle bidding registration formalities though being present shall be deemed as waiving the preemptive right.
Article 19 Prior to the start of auctions, the departments responsible for the relevant work of pilot courts shall enter the reserved auction prices in the online bidding trading system of the CBEX, and publicize them upon the confirmation of the highest prices.
Article 20 Where an judicial auction is concluded, the CBEX shall organize the signing of the letter of confirmation for the conclusion of the auction and the auction quotation record list, and submit, within two working days, circumstances of signing-up for participating in bidding, the name list of the participating bidders, bidding documents, the bidding quotation record list, the video record of the auction process and other materials to the auction institution. The auction institution shall, within three working days, submit the Written Report on Auction Conclusion to the department responsible for the relevant work of the pilot court, and send a copy thereof to the CBEX.
Where a judicial auction fails to be concluded, the CBEX shall, within one working day, submit the circumstances of signing-up for participating in bidding, bidding documents and other materials to the auction institution. The auction institution shall, within two working days, submit the Written Report on Abortive Auction to the department responsible for the relevant work of the pilot court and send a copy thereof to the CBEX.
Article 21 The CBEX shall issue the certificates for floor trading disposal of litigation assets within two working days after it receives the Written Report on Auction Conclusion and transfers the deposits of buyers to the designated accounts of people's courts.
Article 22 The CBEX shall, according to the charging rates as prescribed by people's courts, uniformly collect auction commissions (including service fees) from buyers on behalf of these people's courts.
The CBEX shall, within three working days, pay to the relevant auction institutions the remaining commissions obtained after the deduction of trading service fees by the CBEX.
IV. Postponing, Suspension and Withdrawal of Auction
Article 23 Where a pilot court decides to postpone, suspend or withdraw a judicial auction according to law, it shall, after reporting the decision to the director of the enforcement bureau or the president in charge of enforcement of this court for approval, notify in writing the auction institution one working day prior to the start of the auction, report the relevant circumstances to the Enforcement Bureau of the Higher People's Court of Beijing Municipality for recordation, record such circumstances in the working records and include them in the enforcement dossiers.
Where the circumstances under which a pilot court decides to postpone, suspend or withdraw a judicial auction are special or urgent, the pilot court shall, after reporting the circumstances to the president in charge of enforcement of this court for approval, notify in writing the auction institution prior to the start of the auction, report the relevant circumstances to the Enforcement Bureau of the Higher People's Court of Beijing Municipality for recordation, and record such circumstances in the working records and include them in the enforcement dossiers.
An auction institution shall, after receiving the notice of a pilot court, notify the CBEX in a timely manner, and immediately stop the judicial auction, and the auction institution shall issue an announcement to explain the relevant circumstances through the website of the CBEX, and effectively make explanations to the bidder.
Article 24 Where the network failure, the malicious collusion between an auction institution or the CBEX and bidders or any other circumstance inappropriate for continuing auction occurs in the process of auction bidding, the pilot court may decide to suspend the auction on the spot according to law.
V. Legal Liability
Article 25 Where a pilot court finds an auction institution violates the relevant provisions in the process of an auction activity, it shall timely report the violation to the JEAC of the Higher People's Court of Beijing Municipality for pointing out and ordering the auction institution to make correction of such violation. If the circumstances of the violation of relevant provisions are serious or the auction institution refuses to make correction, the auction institution shall be given a warning, the entrustment shall be suspended, or the name of the auction institution shall be removed from the name list of the auction institutions entrusted by the people's court, and such violation shall be notified to the competent department of the industry.
Where a pilot court finds the CBEX fails to conduct an auction activity, fulfill the obligation of confidentiality or accept the supervision of people's courts as required, it shall timely report it to the JEAC of the Higher People's Court of Beijing Municipality for pointing out and ordering the CBEX to make correction thereof.
Article 26 Where an auction institution and the CBEX violates relevant laws or regulations during its practice, it shall assume corresponding responsibilities according to law.
VI Supplementary Provisions
Article 27 These Provisions shall come into force on October 1, 2013. Where these Provisions conflict with the relevant provisions of the Higher People's Court of Beijing Municipality during the period of trial implementation, these Provisions shall prevail.
Article 28 The departments responsible for the relevant work of pilot courts may, according to these Provisions, formulate the detailed rules for the implementation of the judicial auction work, which, however, may not contravene the content of these Provisions.
The power to interpret these Provisions shall remain with the JEAC and Enforcement Bureau of the Higher People's Court of Beijing Municipality.