What should I do if I have any opinion about the "non litigation enforcement" activity? The civil administrative procurator can help you! In addition, the attention of young partners is especially drawn to the fact that the procuratorial organs across the country are currently carrying out special supervision activities on non litigation implementation, which will last from March 2018 to September 2019. The activities are in the second half of this article.
The execution procedure of the court is known by all the partners. It is generally understood that the court takes legal enforcement measures to force the obligor to perform the legally effective civil judgments and rulings, as well as the property part of the criminal judgments and rulings. The procuratorial organ may supervise the execution of illegal acts by the court. But do you know what is "non litigation execution"? Can the procuratorial organ supervise the illegal acts in the "non litigation execution"? Let's take a look at the case.
Dongzhi County Land and Resources Bureau and Xue Mou's Natural Resources
Administrative penalty implementation procuratorial proposal
Basic case
After the Land and Resources Bureau of Dongzhi County, Chizhou City, Anhui Province imposed an administrative penalty on Xue for natural resources, it applied to the People's Court of Dongzhi County for enforcement. On July 19, 2017, the People's Court of Dongzhi County filed a case for enforcement according to law, issued an Enforcement Notice and a Property Declaration Notice to Xue, requiring Xue, the person subjected to enforcement, to pay 17160 yuan of the application for enforcement and to report in writing the current property situation and the year before the date of receiving the enforcement notice. On August 4, 2017, Dongzhi County People's Court found out through online inquiry that Xue had 9020.24 yuan in the Postal Savings Bank and 494.44 yuan in the Rural Credit Union. On September 30, 2017, the People's Court of Dongzhi County ruled to terminate the execution procedure on the grounds that it did not find any property available for execution under the name of Xue, the person applying for execution could not provide a clue to the property available for execution, and agreed to terminate the execution procedure. The case was executed in place and the target was 0 yuan. The bureau applied to Dongzhi County People's Procuratorate for supervision.
Supervision opinions
The People's Procuratorate of Dongzhi County, upon examination, believes that the person subjected to execution failed to perform the obligations specified in the legal document in accordance with the execution notice, and the people's court has the right to freeze part of the property of the person subjected to execution that should perform the obligations, on the premise of preserving the necessities of life of the person subjected to execution and his dependants. In this case, Mr. Xue failed to perform the obligations specified in the legal document in accordance with the enforcement notice. The court inquired about his bank deposit of 9514.68 yuan through the Internet, but failed to take enforcement measures such as freezing or deduction in a timely manner, and did not take any sanctions against Mr. Xue. The case did not meet the conditions for termination of enforcement. Suggestion: Dongzhi County People's Court should strengthen the enforcement of the case to ensure the realization of the purpose of administrative punishment.
Monitoring results
The People's Court of Dongzhi County replied to the procuratorial suggestions, saying that it would increase the efforts to inquire about the property of the person subjected to execution during the execution process, freeze the account of the person subjected to execution that has not been frozen, and take necessary detention measures according to the performance of the person subjected to execution to safeguard the legitimate rights and interests of the applicant.
The supervision of court execution activities is a supervisory function entrusted to procuratorial organs after the amendment of the Civil Procedure Law and the Administrative Procedure Law, Execution activities also include litigation execution and non litigation execution. Let's discuss the non litigation execution together with the editor.
Which non litigation documents can be applied to the court for enforcement?
The Norms for People's Courts to Handle Enforcement Cases prepared by the Executive Bureau of the Supreme People's Court sorted out that the following legally effective legal documents with payment content are the basis for people's courts to enforce:
（1） Arbitration award and mediation statement;
（2） Arbitration award and mediation statement of labor and personnel disputes;
（3） The credit document issued by the notary office;
（4） Other legal documents required by laws and judicial interpretations to be executed by the people's courts.
Article 97 of the Administrative Procedure Law stipulates that if a citizen, legal person or other organization neither brings a lawsuit nor performs the administrative act within the statutory time limit, the administrative organ may apply to the people's court for compulsory execution, or enforce it according to law.
The People's Procuratorate's supervision of non prosecution enforcement activities has a legal basis! Come and have a look with the Prosecutor:
Article 235 of the Civil Procedure Law of the People's Republic of China: The People's Procuratorate has the right to exercise legal supervision over civil enforcement activities.
Article 11 of the Administrative Procedure Law of the People's Republic of China: The People's Procuratorate has the right to exercise legal supervision over administrative proceedings.
Article 102 of the Rules for the Supervision of Civil Procedure by the People's Procuratorates (for Trial Implementation): The people's procuratorates shall exercise legal supervision over the violations of the law by the people's courts in civil enforcement activities.
Item (3) of Article 5 of the Rules for the Supervision of Administrative Proceedings of the People's Procuratorates (for Trial Implementation): If a party believes that the people's court has violated the law in its implementation activities, he may apply to the people's procuratorate for supervision.
Article 1 of the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues of Legal Supervision over Civil Enforcement Activities (Fa Fa [2016] No. 30): The People's Procuratorate shall exercise legal supervision over civil enforcement activities according to law. The people's courts accept the legal supervision of the people's procuratorates according to law. Article 3: The People's Procuratorate shall exercise legal supervision over the activities of the People's Court in implementing effective civil judgments, rulings, mediation documents, payment orders, arbitration awards, notarizing creditor's rights documents and other legal documents.
If you think the non litigation execution activities of the people's court are illegal, you can apply to the people's procuratorate for supervision according to law. Remind you: if the law provides that you can raise an objection, apply for reconsideration or bring a lawsuit against the relevant implementation activities of the people's court, but you do not raise an objection, apply for reconsideration or bring a lawsuit, the procuratorial organ will not accept your application, unless you have a legitimate reason.
Tell important things three times:
The procuratorial organs throughout the country are carrying out special supervision activities on civil administrative non litigation implementation.
The procuratorial organs throughout the country are carrying out special supervision activities on civil administrative non litigation implementation.
The procuratorial organs throughout the country are carrying out special supervision activities on civil administrative non litigation implementation.
1、 Contents and key points of supervision
（1） Civil non litigation execution supervision
1. Key points of supervision on civil non litigation execution activities of the people's court:
(1) The acceptance of civil non litigation enforcement cases violates the jurisdictional provisions.
(2) The people's court has ruled to enforce the award or mediation of an arbitration institution under the following circumstances: the parties have not concluded an arbitration clause in the contract or have no arbitration agreement afterwards; The matters to be arbitrated do not fall within the scope of the arbitration agreement or the arbitration institution has no power to arbitrate; The composition of the arbitration tribunal or the arbitration procedure violates the legal procedure; The evidence on which the ruling is based is forged; The other party conceals evidence sufficient to affect the impartiality of the award from the arbitration institution; The arbitrators have embezzled, accepted bribes, engaged in malpractices for personal gain, and perverted the law in arbitrating the case; The arbitration award or mediation is against the public interest.
(3) The people's court has ruled against the enforcement of an arbitration award or mediation that should be enforced.
(4) The people's court shall order the execution of the creditor's rights document that the notary organ has legally given the force of compulsory execution if there is any error. The people's court finds that the notarization of the credit document is wrong, but the reason is not tenable.
(5) Illegal refusal to accept the objection to execution or reconsideration, or failure to make a ruling or decision within the time limit after acceptance, review of the objection to execution, reconsideration, and the ruling made by an outsider's objection violate the law.
(6) Failing to take enforcement measures in accordance with the law, sealing up exceeding the standard, failing to return the property in time, illegally ending this enforcement procedure, failing to close the case within the statutory time limit without justified reasons and other illegal acts.
(7) Other illegal situations in which the people's court makes enforcement decisions and takes enforcement measures.
2. Key points of supervision on arbitration and notarization:
(1) False arbitration that damages public interests or the legitimate rights and interests of others.
(2) Notarization violates the law.
（2） Supervision of administrative non litigation execution
1. Pay close attention to the implementation of administrative decisions involving national interests and social and public interests in the administrative non litigation implementation activities of the people's courts, and focus on the supervision of the following violations:
(1) The people's court violates the jurisdictional provisions when accepting the application of the administrative organ for compulsory execution.
(2) The people's court should accept but not accept the application for compulsory execution of the administrative organ, should not accept but illegally accept it, accept and review the application for compulsory execution of the administrative organ, and review the ruling of rejection beyond the time limit prescribed by law.
(3) The people's court should approve the enforcement of the administrative organ's application for compulsory enforcement but not allow it, should not approve the enforcement but allow it, and the review of whether to approve the enforcement and the reconsideration review of the ruling not to approve the enforcement exceed the time limit prescribed by law.
(4) The execution orders and decisions made by the people's court, such as suspension of execution, termination of this execution procedure, termination of execution, resumption of execution, fines, detention, suspension of execution, investigation, control and disposal of property, violate the law.
(5) The people's court has taken measures to investigate, seal up, detain, freeze, evaluate, auction, sell off, store, and other enforcement measures, and the enforcement of reconciliation violates legal provisions.
(6) The people's court fails to take enforcement measures or close the case within the statutory time limit without justifiable reasons, or fails to change or terminate the enforcement measures according to law, or is negligent in performing the enforcement duties.
2. With regard to the acts of administrative organs, the following violations shall be mainly supervised:
(1) The administrative organ is negligent in applying to the court for compulsory execution.
(2) When an administrative organ applies for compulsory execution, the people's court shall, in accordance with the provisions of the law, make a ruling that the execution should be carried out by the administrative organ, which has been sluggish in carrying out the enforcement.
(3) If the procuratorial organ discovers that the administrative organ violates the provisions of the law during the performance of its duties, it may affect the fair execution of the people's court and other illegal acts.
2、 Materials that the parties need to submit when applying to the procuratorial organ for supervision of civil and administrative non litigation execution
1. Application for supervision
2. Identification
3. Relevant legal documents
4. Evidential materials
Produced by Anhui Procuratorial New Media
Reviewed by Wu Yihuo
Source | Chizhou Procurator WeChat official account
Text | Ling Xunhong
