Full text quick view!The Supreme People’s Court issued an interpretation on judicial compensation for execution

2022-04-30 0 By

Fully safeguard the legitimate rights and interests Specification execution power of the Supreme People’s Court issued execute judicial compensation explanation on February 8, the Supreme People’s Court issued a “Supreme People’s Court on the application of law enforcing judicial compensation cases, the explanation of some issues (interpretation” [2022] no. 3, hereinafter referred to as the “explanation”), the interpretation effective as of March 1, 2022.The Interpretation is guided by Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, deeply carries out Xi Jinping Thought on the rule of law, adheres to the work philosophy of “compensate when compensation is needed, and do good things well.” According to the State Compensation Law of the People’s Republic of China and other legal provisions, combined with the actual work of the people’s Courts in the trial and enforcement of state compensation,To make unified norms for the application of law in the trial of judicial compensation cases.Since the 18th NATIONAL Congress of the CPC, under the strong leadership of the CPC Central Committee with Comrade Xi Jinping at its core, the people’s courts have overcome difficulties and forged ahead to meet the periodic goal of “basically resolving difficulties in enforcement” as scheduled. They have paid close attention to the construction of a system of enforcement norms, effectively restrained and standardized enforcement power, and achieved significant results in enforcement work.At the same time, with the development of national compensation trial and enforcement practice, new situations and problems in the field of judicial compensation enforcement continue to emerge, and the people’s new requirements and expectations for the protection of rights continue to improve.In order to respond to social concerns in a timely manner, highlight social fairness and justice, and strengthen judicial protection of human rights, the Supreme People’s Court formulated the Interpretation.There are twenty articles in the interpretation, mainly including the conditions of judicial compensation investigation, the connection between compensation procedure and enforcement relief and supervision procedure, the identification of compensation liability, the scope and standard of damage compensation, etc.Based on the practice of judicial compensation implementation, the Interpretation focuses on solving the difficulties, pain points and blocking points that have long plagued national compensation trials, and actively responds to the new requirements and expectations of the people.The promulgations of the Interpretation will play an important role in the fair and timely trial of judicial compensation cases, the full protection of the legitimate rights and interests of compensation claimants, and the promotion of the standard and orderly implementation of the people’s courts.According to introducing, this “explanation” is the Supreme People’s Court and executive compensation commission office in 2016, the Supreme People’s Court on the trial of civil and administrative litigation in judicial compensation cases to explain some issues of applicable law, on the basis of summarizing experience of enforcing judicial compensation and execution work practice, common drafting.Next, the Supreme People’s Court will earnestly study and implement xi thought of rule of law, the “explanation” earnestly implement the work, and take this opportunity to further promote the development of national compensation trial and execution work quality, fully protect the legitimate rights and interests of citizens, legal persons and other organizations, to the people in every perception of fairness and justice judicial cases.The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law to the Trial of Cases Involving Judicial Compensation Enforcement, which was adopted at the 1857th Meeting of the Judicial Committee of the Supreme People’s Court on December 20, 2021, is hereby promulgated and shall come into force as of March 1, 2022.Method of the Supreme People’s Court on February 8, 2022, no. 3 [2022] of the Supreme People’s Court about enforcing judicial compensation cases to explain some issues of applicable law (on December 20, 2021 the Supreme People’s Court trial committee by the 1857th meeting, effective as of March 1, 2022) for the correct implementation judicial compensation cases,To protect the lawful rights and interests of citizens, legal persons and other organizations, this Interpretation is formulated in accordance with the State Compensation Law of the People’s Republic of China and other legal provisions and in light of the actual work of the people’s courts in adjudication and enforcement of state compensation.Article 1 the people’s court in the implementation process of effective judgment or written order or other legal document, the error take property survey and control, disposal and execution measures such as delivery, distribution, or coercive measures, such as a fine or detention, and violation of legitimate rights and interests of citizens, legal persons and other organizations and damage, the victim apply for compensation in accordance with the provisions of article 38 of the state compensation law, apply to this explanation.Article 2 Where any citizen, legal person or other organization applies for compensation for damage caused by any of the following wrongful execution acts, the people’s court shall accept the application according to law:(2) it is found that the person subjected to execution has property available for execution, but the execution is deliberately delayed or fails to be carried out, or the execution should be resumed according to law but fails to be carried out;(3) illegally executing the property of an outsider to the case, or illegally delivering the money or goods executed to another party or an outsider to the case;(4) failing to protect, according to law, the lawful rights and interests of the aforesaid right holder, such as the priority of compensation, by taking enforcement measures against such property as mortgage, pledge, lien and retained ownership;(5) unlawful execution of other property for which preservation or execution measures have been taken by the people’s court according to law;(6) willfully failing to perform or negligent in performing supervision duties over the property sealed up, seized or frozen in the course of execution;(7) failing to dispose in time or illegally taking enforcement measures against property which is not suitable for long-term preservation or is easily depreciated;(8) illegally auctioning, selling off, or paying debts in kind, or failing to appraise according to law, or failing to auction according to law;(9) illegally canceling an auction, selling off or paying debts with property;(10) illegally taking measures such as being included in the list of persons subject to enforcement for trust-breaking, restricting consumption or restricting exit from the country;(11) Other acts of taking enforcement measures or compulsory measures due to violation of law or fault.Article 3 Where the original creditor assigns his claim, his right to apply for state compensation based on the claim shall be transferred accordingly, except where the assignment is not allowed in light of the nature of the claim, the agreement between the parties or legal provisions.Article 4 Where a people’s court entrusts another people’s court with the execution of matters such as sealing up, distraining or freezing, and citizens, legal persons or other organizations apply for compensation for damages caused by wrongful execution, the people’s court shall be entrusted as the organ liable for compensation.Article 5 Any citizen, legal person or other organization who applies for compensation for wrongful execution shall file the claim after the conclusion of the execution procedure; any claim filed before the conclusion of the execution procedure shall not be accepted.(1) Compulsory measures such as fine or detention have been revoked according to law, or personal injury has been caused in the process of enforcement;”(2) the property subjected to execution is confirmed not to belong to the person subjected to execution according to law through legal proceedings, or the people’s court has confirmed that the act of execution is illegal in an effective legal document;””(3) it has been more than five years since the date of filing the case for execution, and it has been ruled that the current execution procedure has been terminated and the person subjected to execution has no property for execution;”(4) other circumstances under which compensation may be applied for before the termination of the execution procedure.Where the claimant applies for compensation after the termination of the execution procedure in accordance with the provisions of the preceding paragraph, the execution procedure period shall not be included in the limitation of claim for compensation.Article 6 citizens, legal persons and other organizations in the execution objection, reconsideration or perform supervision program during the period of review, relevant enforcement measures or compulsory measures for compensation, the people’s court shall not accept, have to accept the rejected, and told him in the above program after the end can claim for compensation in accordance with the law according to the provisions of this interpretation of article 5 of the application.Citizens, legal persons and other organizations who, in the execution procedure, do not object to, apply for reconsideration or apply for supervision over the execution of the relevant enforcement measures or compulsory measures shall not be affected in their right to apply for compensation according to law.Article 7 If an effective legal document made through the procedure of objection to execution, reconsideration or supervision of execution has been determined as to whether the execution act is lawful, the effective legal document may be used as the basis for the compensation commission of the people’s court to determine the legality of the execution act.Where the claimant claims contrary to the legality of the execution and provides corresponding evidence to prove it, the compensation commission of the people’s court shall examine the legality of the execution and make a determination.Article 8 An act of execution made on the basis of the then valid basis for execution or the basic facts ascertained according to law shall not be ascertained as wrongful execution under any of the following circumstances:(2) the substantive causes of the person subjected to execution which are sufficient to oppose the execution occurred after the execution measures were completed or have been confirmed according to law;(3) the entity right enjoyed by an outsider to the object of execution, which is sufficient to exclude execution, is confirmed through legal procedures after the execution measures are completed;(4) After the people’s court has made a ruling approving the execution of an administrative act and implemented it, the administrative act is altered, annulled, confirmed to be illegal or invalid according to law;(5) the registration of property is confirmed to be wrong according to law after enforcement measures have been taken according to the registration;(6) other circumstances in which the basis for execution or the basic facts are subsequently changed.Article 9 A claimant shall bear the burden of proof for the damage claimed by him.However, if the claimant is unable to prove the damage due to the fault of the people’s court, such as failure to list or failing to list, the people’s court shall bear the burden of proof for the above-mentioned facts.If both parties claim that the value of the damage cannot be ascertained, the party bearing the burden of proof shall apply for appraisal.If the party bearing the burden of proof refuses to apply for an appraisal, it shall bear adverse legal consequences;If it is impossible to make an appraisal, the compensation commission of the people’s court shall make a judgment based on the claims of both parties and the evidence on record and by logical reasoning and daily life experience.Article 10 If the person subjected to execution applies for compensation in accordance with paragraph 1 of Article 5 of this interpretation for infringement of property rights, and his debts have not been paid off, the compensation obtained shall first be used to pay off his debts.Article 11 Where improper interests have been obtained due to wrongful execution and cannot be returned, the people’s court may, after assuming the liability for compensation, seek recourse against the person who has obtained improper interests in accordance with the decision on compensation.If the effective legal document cannot be executed due to incorrect execution, and the person applying for execution applies for continued execution after receiving state compensation, it shall not be supported.After assuming the liability for compensation, the people’s court may, on the basis of the compensation decision, have recourse against the person subjected to execution.Article 12 Where the lawful rights and interests of citizens, legal persons or other organizations are infringed upon and damage is caused by the act of the depository or the third party in the course of enforcement, the depository or the third party shall be liable.However, if the people’s court fails to perform its supervisory duties, it shall bear the corresponding liability for compensation to the extent that it can prevent or prevent the occurrence or expansion of damage, and may seek recourse against the depository or a third party in accordance with the decision on compensation.Article 13 The people’s court shall not be liable for compensation under any of the following circumstances:(2) the enforcement measures are taken or discharged in accordance with the guarantee provided according to law;(3) the personnel of the people’s court commit personal acts unrelated to the exercise of their functions and powers;(4) damage caused by illegal acts committed by appraisal or auction agencies;(5) Damage is caused by force majeure, justifiable defence or emergency avoidance;(6) other circumstances under which the people’s court is not liable for compensation according to law.Under the circumstances mentioned in the preceding paragraph, if the people’s court commits an act of wrongful execution, it shall be liable for compensation according to its role in the process and result of the damage.Article 14 Compensation shall be made for actual losses incurred by citizens, legal persons or other organizations as a result of wrongful execution of the provisions in Item 8 of Article 36 of the State Compensation Law.Article 15 Where the property rights of a citizen, legal person or other organization are infringed upon and the market price at the time of wrongful execution is insufficient to cover the loss of the victim or the price cannot be determined, the loss may be calculated in the following ways:(1) the property losses shall be calculated and interest shall be paid according to the market price at the time of the wrongful execution, and the period of interest calculation shall be from the date on which the wrongful execution is carried out to the date on which the decision on compensation is made;(2) Where the market price at the time of the wrongful execution cannot be determined, or it is obviously unfair to calculate according to the market price at the time of the wrongful execution because of such factors as a long time span or large fluctuation of the market price, it may be calculated by referring to the market price of the same property at the time of the decision of compensation;(3) Other reasonable means.Article 16 Where wrongful execution causes the production or business suspension of the victim, the following losses belong to the recurrent expenses necessary during the period of production or business suspension:(2) taxes and social insurance premiums that must be paid;(3) utilities fees, storage fees, warehousing fees and contracting fees that should be paid;(4) reasonable rental of premises and sites, rental of equipment and depreciation of equipment;(5) Maintain other basic expenses necessary for operation during the period of suspension of production.Where the production equipment or means of transport used for business operation are wrongly executed, thus causing the victims to lose their sole source of livelihood, compensation shall be made according to their actual losses.Article 17 Where the obligatory right is infringed upon by wrongful execution, the scope of compensation shall generally be limited to the amount subject to the obligatory right.Where the assignee applies for compensation, the scope of compensation shall be limited to the consideration paid at the time of the assignment of the obligee’s right.Article 18 If a citizen, legal person or other organization applies for compensation after the execution procedure of a case in which preservative measures have been illegally taken, the case shall be placed on file and examined as a case of wrongful execution.Article 19 The present interpretation may be applied with reference to the trial of cases involving compulsory measures against obstruction, preservation and preexecution of compensation.Article 20 This interpretation shall come into force as of March 1, 2022.In case of any discrepancy between the judicial interpretation published by the court before implementation and this interpretation, this interpretation shall prevail.Source: Supreme People’s Court