Provisions of the Higher People's Court of Beijing Municipality on Settling Enforcement Cases

 2018-06-20  60


· Document Number:No.336 [2011] of the Higher People’s Court of Beijing Municipality

· Area of Law: Judicial Assistance Legislative Affairs

· Level of Authority: Local Judicial Documents

· Date issued:10-31-2011

· Status: Effective

· Issuing Authority: Beijing Municipality

 

Notice of the Higher People's Court of Beijing Municipality on Issuing the Revised Several Provisions of the Higher People's Court of Beijing Municipality on Settling Enforcement Cases (for Trial Implementation)
(No.336 [2011] of the Higher People's Court of Beijing Municipality)
The No.1 Intermediate People's Court, the No.2 Intermediate People's Court and the Intermediate Railroad Transportation Court of Beijing Municipality; the people's courts of all districts and counties; and Beijing Railroad Transportation Court:
The revised Several Provisions of the Higher People's Court of Beijing Municipality on Settling Enforcement Cases (for Trial Implementation), as deliberated and adopted at the 15th (284th in total) session of the Judicial Committee of the Higher People's Court of this Municipality on October 31, 2011, are hereby issued for your diligent compliance and implementation. If you have any problem in the course of implementation, please report it to the Bureau of Enforcement of the Higher People's Court of this Municipality without delay.
Annex: Several Provisions of the Higher People's Court of Beijing Municipality on Settling Enforcement Cases (for Trial Implementation)
October 31, 2011
Several Provisions of the Higher People's Court of Beijing Municipality on Settling Enforcement Cases (for Trial Implementation)
To further regulate the settlement of enforcement cases and guarantee the quality of settled cases, these Provisions are formulated according to the Civil Procedure Law of the People's Republic of China and the relevant judicial interpretations and in light of the actual situations of the enforcement work of courts in this Municipality.
Article 1 Methods for settling an enforcement case include:
1. Completion of enforcement;
2. Reconciliation;
3. Termination;
4. Rejection of application;
5. Non-enforcement;
6. Entrusted enforcement;
7. Closing; and
8. Others.
Article 2 For the purpose of reporting the settlement of enforcement cases, in a payment enforcement case, “completion of enforcement” means that the requested amount has been fully paid; while in an enforcement case on delivery of an object or the completion of a designated conduct, it means that the object has been delivered or the designated conduct has been completed, or that the enforcee has made compensation even if the object is not delivered or the designated conduct is not completed. “Completion of enforcement” includes: voluntary fulfillment, compulsory enforcement and other forms.
“Voluntary fulfillment” means that, after a case is opened, the enforcee voluntarily fulfills all obligations as set forth in legal papers to the enforcement applicant, and the enforcement applicant approves that all obligations as set forth in valid legal papers have been fully performed.
“Compulsory enforcement” means, after a case is opened, the enforcing court takes compulsory enforcement measures to ensure the full performance of all obligations as set forth in valid legal papers.
“Other forms” means that all obligations as set forth in valid legal papers are fully performed under circumstances other than those described in Paragraphs 2 and 3 of this Article.
Article 3 For the purpose of reporting the settlement of enforcement cases, “reconciliation” could be reconciliation with full performance or the applicant's waiver of the remainder of the financial claim with partial performance.
“Reconciliation with full performance” means that the parties concerned reach a reconciliation agreement and the relevant obligations have been fully performed.
“Applicant's waiver of the remainder of the financial claim with partial performance” means that the parties concerned reach a reconciliation agreement under which part of the obligations have been performed and the applicant waives the remaining financial claim.
If the parties concerned in an enforcement case reach a reconciliation agreement on fulfillment by installment, the case can be settled by “reconciliation” only when all obligations have been fully performed or the applicant waives the remaining financial claim after partial obligations have been performed. Otherwise, the case shall be reported as a case settled by “termination of the enforcement process” under the settling method of “termination”.
Article 4 Enforcement cases which meet the requirements of Article 5 or 7 of these Provisions shall be reported as cases settled by “termination”. “Termination” includes termination of the enforcement process and termination in other forms.
Article 5 Under any of the following circumstances, an enforcing body may rule on the termination of the enforcement process:
1. The enforcee who is a natural person who has a difficult life, is unable to pay off the debt, has no source of income and has lost the ability to work;
2. The enforcee does not have any property for enforcement, and the enforcement applicant provides written consent for the termination of the enforcement process by the people's court;
3. The enforcement has been suspended for two years because the enforcee has no property for enforcement and it is verified that the enforcee indeed has no property for enforcement;
4. The enforcement applicant expressly indicates that it or he is unable to locate the property of the enforcee or provide any lead as to where it might be located and approves in writing a decision made as a result of property investigation by the people's court that the enforcee has no property for enforcement;
5. The enforee's property cannot be auctioned or sold, or nobody competes in bidding in two actions for a movable property or three auctions for an immovable or other property, the enforcement applicant refuses to accept the property or it cannot be used to repay debt, and the people's court determines through property investigation that the enforcee has no other property available for enforcement;
6. The enforcee which is a business corporation is cancelled, deregistered, revoked of its business license or closes business and has no property for enforcement, has no successor of its obligations and fails to add another enforcee or change the enforcee itself;
7. As a result of property investigation by the people's court, the enforcee has no property available for enforcement or has property inappropriate for enforcement, and the parties reach a reconciliation agreement of performance by installment; or
8. The enforcee does not have any property for enforcement, and the enforcement applicant is from a particularly indigent group, and the enforcing court has offered judicial assistance to the latter.
The enforcing body shall form a collegial panel to decide whether the case shall be settled by termination of the enforcement process.
Before ruling on a termination of the enforcement process under Item 1, 3, 5, 6, 7 or 8, Paragraph 1 of this Article, the enforcing body shall inform the enforcement applicant that it or he can raise an objection within the prescribed time. If the enforcement applicant does so, another collegial panel shall be formed to organize the parties concerned for a hearing on whether the enforcee has property for enforcement; if the enforcement applicant provides any information as to the enforcee's property, the enforcing body shall conduct an investigation again to verify and, if finding that the enforcee has property for enforcement, continue the enforcement process. If it is found as a result of hearing that the enforcee does not have any property for enforcement, and the enforcement applicant is unable to prove that the enforcee has property for enforcement, the enforcing body can make a ruling to terminate the enforcement process.
A ruling paper on termination of the enforcement process shall be signed by the president in charge of enforcement issues.
Article 6 “Property investigation by the people's court” as mentioned in Items 4, 5 and 7, Paragraph 1 of Article 5 means to investigate into the following matters at least:
1. If the enforcee is a corporate body or any other organization, the people's court shall inquire of the relevant financial institution about its bank deposits, inquire of the relevant real estate management department about real estate property registered in its name, inquire of the corporation registration organ about its equity, and inquire of the relevant vehicle management department about its vehicles.
2. If the enforcee is a natural person, the people's court shall ask his or her employer and neighbors about his or her property status or information, including his or her source of income and mature creditor's rights. If the property information obtained indicates that the enforcee has high income, the people's court shall make an investigation in the manner for investigating a corporate body.
If it is otherwise provided by law, judicial interpretations or the provisions of Supreme People's Court on property investigation by the people's courts, such provisions shall apply.
Article 7 Under any of the following circumstances, an enforcing body shall rule to terminate the enforcement of a valid legal paper taken as basis for enforcement:
1. The legal paper on which the enforcement is based is cancelled;
2. The enforcee who is a citizen is dead, has no estate for property and has no successor of obligations;
3. The right holder in a case on alimony, aliment orchild support is dead; or
4. Other circumstances under which the enforcing body decides to terminate enforcement.
Article 8 The method of “rejection of application” means that, for an enforcement case which has been accepted, the enforcing body shall reject the application if it finds as a result of examination that the case does not meet the acceptance conditions as prescribed in Article 18 of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of the People's Court (for Trial Implementation).
Article 9 The method of “non-enforcement” means that, after a case is opened, the enforcee submits an application for non-enforcement of the arbitral award or the creditor's notarized instrument and the enforcement examination body of the people's court approves the application upon examination.
Article 10 The method of “entrusted enforcement” means that the people's court has handled the entrusted enforcement formalities according to the requirements of the Provisions of the Supreme People's Court on Several Issues Regarding Entrusted Enforcement and has received a case-opening notice from the entrusted court.
Article 11 The method of “closing” means the following circumstances: referral of jurisdiction or withdrawal of application by the enforcement applicant due to the establishment of an objection to jurisdiction, discovery of the fact that the case has been opened by another court with jurisdiction over it, enforcement by a court at a higher level or enforcement by a designated court.
When the enforcee raises an objection to jurisdiction after an enforcement case is accepted, if the objection is established upon examination and the case is referred to a court with jurisdiction or the enforcement applicant withdraws application, the case shall be reported as a case settled by “closing”.
If it is discovered after an enforcement case is accepted that it has been opened by another court with jurisdiction over it, the case shall be reported as a case settled by “closing”.
Enforcement by a court at a higher level means that the a court at a higher level rules to take up enforcement, and the original enforcing court shall report the case as being settled by “enforcement by a court at a higher level” under the method of “closing”.
Enforcement by a designated court means that a court at a higher level designates another court for the enforcement of the case, and the original enforcing court shall report the case as being settled by “enforcement by a designated court” under the method of “closing”.
Article 12 Under any of the following circumstances, an enforcement case shall be reported as a case settled by “other” methods:
1. The enforcement applicant withdraws the application, and the enforcement body approves the withdrawal application by a ruling; or
2. Other circumstances as set forth by the relevant provisions of laws or judicial interpretations.
Article 13 To settle a case by way of ruling, the ruling paper shall be served upon the parties concerned.
Article 14 The handling person of an enforcement case shall, within five days after the case is settled upon approval, truthfully enter data on the settlement of the case into the judicial case management system (intranet) and the enforcement case information management system (internet). Data on the acceptance and settlement of cases on the intranet and the internet must be identical at 24:00 of the 20th day of each month.
Article 15 The power to interpret these Provisions remains with the Bureau of Enforcement of the Higher People's Court of Beijing Municipality.
Article 16 These Provisions shall come into trial implementation on the date of issue.