A provincial high court ruled that the change of 500 million preservation property caused controversy

Property preservation is essentially a kind of judicial measures and a restriction on the property of the parties. The purpose is to ensure the smooth implementation of the judgment. In fact, the court ruled that changing the preservation property and following the two legal principles of "equivalent" and "benefit the execution" are still the general consensus of courts at all levels.

On December 13th and 20th, 2021, a provincial high court made two rulings in the case of unilateral assessment report that the preservation of the preservation of the presence and the unilateral procedure of the person who had not performed the relevant procedures. On August 17, the 500 million yuan property preservation of the property preservation of the seizure -the preserved property that originally ruled up in accordance with the law was replaced.

It is worth noting that after a provincial high court made a ruling of the 500 million yuan property preservation of the property preservation target, it has been delayed for nearly 3 months. In the hands of the plaintiff Mr. Huang, Mr. Huang failed to record reconsideration within the valid time.

So, why did the court change 500 million yuan in property preservation benches without the plaintiff? Has the change after the change of the subject matter have been legal evaluation and audit? Are these replaced property and the equivalent of the property of the original seal and preservation and more conducive to execution? After being disclosed at a legal seminar held in Beijing, the case caused the attention of legal experts and industry insiders.

The delay of the preservation property ruling is delayed for three months.

Mr. Huang is the owner of a private enterprise. Due to the relationship between township, between September 2011 and April 2014, Mr. Huang lent the total amount of 190 million yuan to Huang Moumou, Pan Weimin and others.

Because the funds lended have not been repaid, but helpless, in June 2018, Mr. Huang complained to the court two batches of debtors, including Pan Weimin and Huang Moumou, and asked for the debt of several million yuan.

The first batch of debtors included borrower Huang Moumou, Zheng Moumou, Guaner Pan Weimin, Guaizen Faxin (Xiamen) Real Estate Co., Ltd. (hereinafter referred to as French Xin Company), Shunlian Real Estate (Wuhan) Development Co., Ltd. (hereinafter referred to as Shunlian Company Company ) Hechang Real Estate Development Co., Ltd., the case involved in the borrowing principal of 140 million yuan and interest on September 18, 2011 (No. 56, Mininchu, 2018).

The second batch of debtors include borrower Pan Weimin, Guaizen French New Company, Shunlian Company, Hechang Real Estate Development Co., Ltd., and Hong Kong Dashang Natural Resources Investment Co., Ltd.. And interest (No. 55, Mininchu 2018).

At the same time, in order to ensure the successful implementation of the lawsuit, Mr. Huang applied to the court in time to seize the foundation of French New Company and Shunlian Company of 500 million yuan in property preservation.

On September 20, 2018, a provincial high court made two civil rulings: a state -owned land use right (Certificate number: Xiafang Fangzhuo No. No. 00020605), a ruling: 1011.6 billion yuan, the freezing period was 3 years; another ruling ruled that the state -owned land use rights of the real estate project plot of Shunlian Company (Certificate Number: E -2017 Wuhan Jiangxia Jiangxia Unsimerive Property No. 0036179), 11 contract numbers under 11 contract numbers) The pre -sale commercial housing and other property, the preservation limit is 299.6 million yuan, and the freezing period is 3 years.

Two cases have been judged by Mr. Huang after the first trial, and during the appeal period, after Pan Weimin's sudden illness, he was sent back to retrial. On August 17, 2021 before the expiration of the above seizure period, Mr. Huang supported Mr. Huang in a provincial high court to continue to seize the above -mentioned security target target targets. The application for things made two civil rulings in accordance with the law: one ruling continued to seal the original insurance of the original insurance of the new company, with a preservation limit of 141.6 million yuan, and the seizure period was 3 years (2021 Fujin Minchu 1); another The ruling continued to seize the original insurance of the original insurance of Shunlian Company. The preservation limit was 411.6 billion yuan, and the seizure period was 3 years (2021 Fujinchu 2).

Before and after the above two rulings, Mr. Huang successively received the application of French New Company and Shunlian Company transferred from a provincial high court. Property preservation is an over -the -standard seizure. However, Mr. Huang puts in writing to a provincial high court in writing to a certain provincial and high courts that disagree, do not recognize or change the preservation of the subject matter.

On March 17, 2022, Mr. Huang received two rules of the two -time preservation subjects delivered by the provincial high court. Mr. Huang saw that a provincial high court was unwilling to adopt its written opposition, but accepted the valuation report entrusted by French New Company and Shunlian Company to directly rupt out the original seal preservation target.

According to the data, the two parts of the province's high court changed 500 million yuan in property preservation rulings, which were displayed as December 13, 2021 (one of the 221 Fujinminchu 2), and December 20, 2021 (2021, 2021, 2021 (2021 One of Fujinchuchu). The content of the ruling is to remove the land use right of real estate projects that were originally seized, and seized the preservation target that was replaced after the change. At the same time, the two rulings made clear that "the ruling was immediately executed immediately after delivery."

Mr. Huang told reporters that he learned that the lawyer's original preservation of the target of the French New Company was unblocked as early as January 13, 2022, but a provincial high court was making the above change. The property preservation ruling was delayed for three months after the book was delayed, and the ruling was given to Mr. Huang on March 17, 2022, which caused Mr. Huang to fail to reconsidery in time. "I received a chanting ticket issued by the court on December 13, 2021, and was required to participate in the online trial on January 6 and 7, 2022, but the court did not inform the court in accordance with the law. The two rulings in the month to relieve the content of the original preservation of the subject matter. "Mr. Huang revealed.

The legality of the valuation report based on the ruling is questioned

The content of the above two parties to change property preservation shows that a ruling (one of the 2021 Fujin Minchu 1) determines that French New Company submitted the "Real Estate Valuation Report" issued by "Xiamen Zhongli Valuation Co., Ltd." to "Lake Lake The evaluation value of the evaluation of 1551.2 million yuan on the 6th floor of the Global Wealth Center Square (2013p02) Building 1 1 of Jinshan Road and Jinzhong Road is 1551.2 million yuan, which has exceeded the original limit of the preserved amount.

Another ruling (one of the 2021 Fujin Minchu 2) determined that the "Real Estate Valuation Report" issued by the Guangdong Public Review Company submitted by Shunlian Company stated that it is planned to apply for the value of the subject of the preservation. The "Real Estate Valuation Report" issued by the letter company stated that some houses in the original preservation subjects were evaluated at 15646,8100 yuan, and the two were added to 488456672 yuan, which exceeded the upper limit of the preserved amount of the original ruling.

However, Mr. Huang questioned that he believed that a provincial high court made a ruling of changing the property, and the valuation report was illegal.

Mr. Huang said that his acting lawyer had objected to the valuation report issued by the person -in -law unilateral commission during the written certificate. Due to the recognition of the plaintiff, the provincial high court was determined by the valuation given by the valuation report. The replacement preservation target exceeds the upper limit of the original preservation amount, and a ruling of changing the subject matter of the preservation of the preservation is made, which is unacceptable.

At a seminar held in Beijing, a legal expert named Wang said that the three evaluation reports based on the two rulings "Xiamen Zhongli Valuation Report", "Guangdong Public Review Valuation Report", "Hubei Wanxin Valuation Report", There are problems such as commission procedures and evaluation standards, so the court should not accept it.

The legal expert stated that first of all, the above three valuation reports were not entrusted by the court, that is, a provincial high court, or the parties to the two parties to be issued by the parties to the two parties. The legal entrustment procedure of the appraisal conclusions of the admission letter is difficult to ensure objective and fair, and it is not fair.

Secondly, the three evaluation reports have not complied with national standards and specifications. For example, there are a total of three comparable examples of "Xiamen Zhongli Valuation Report". The earliest transaction date is November 2, 2019, which is different from the value of the "Xiamen Zhongli Valuation Report" on November 26, 2021. Above the year. The national standard real estate valuation specification stipulates that "the transaction date of comparable instances should be close to the value of value, and the difference between the value of the value should not exceed one year and must not exceed two years."

Another legal person believes that the three valuation reports have not been recognized by Mr. Huang, Mr. Huang, and the court directly accepted the letter regardless of the clear opposition of the parties, and he lost objective and fair. This legal person pointed out that the "Guangdong Public Review Valuation Report" and "Hubei Wanxin Valuation Report" neither the comparison of the comparison, nor the explanation of the above national standards and the statement. reason. Moreover, the "Guangdong Public Review Valuation Report" describes that "this report only provides a reference basis for the commissioner to verify the value of assets and does not make other purposes." However, a provincial high court adopted this report as evidence, which violated the report itself that the report itself had excluded the lawsuit.

Relevant legal persons said that a provincial high court originally adopted a preservation measure of land use rights that were not available under the name of the person's name, which was in line with the provisions of the judicial interpretation and did not belong to the seizure.

The ruled change of the subject matter is not conducive to execution

Liu Xingcheng, a well -known financial legal researcher, said that in order to solve the difficulties of enforcement and ensure the smooth realization of the party's right to win the lawsuit, my country's law stipulates the lawsuit system.

The "Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China" (hereinafter referred to as the Interpretation of the Civil Prosecution Law) stipulates that the preservation of property preservation provides other equivalent guarantee property and is conducive to implementation In the people's court, the people's court may ruin the guarantee property provided by the preservation of the subject.

"The key to a province's high court can rulks to change the preservation target, whether it follows the two legal principles of the" equivalent "and 'conducive to the implementation of'." Liu Xingcheng said, "The Judicial Interpretation and Application of the Supreme People's Court Civil Procedure Law" In the book, "the issue should be paid attention to in the trial practice" that the respondent or other guarantor provided the value of the guarantee property and the value of the value of the court's preserved property, and the property that provided the guarantee was easy to execute, or the execution was executed, or the execution of the execution The cost is lower than the cost of preserved property, and the above two conditions should be available at the same time. Liu Chengxing said that as far as this case is concerned, none of them have been preserved in the new company and Shunlian Company that have not submitted any evidence that the guarantee that can be replaced is easier to execute or perform lower cost than the original preservation. A provincial high court did not review whether the guarantee property provided by the French New Company and Shunlian Company before the above -mentioned unblocking ruling was explained by the Civil Provenance Law.

Mr. Huang said that in September 2018, a provincial high court ruled that the land use right of French New Company and the real estate project of Shunlian Company. Before Pan Weimin suddenly died on October 25, 2020, French New Company and Shunlian Company did not apply for reconsideration. It has not been submitted to the application of seizure or changing the preservation of the subject matter. It was not until the case in 2021 after the case in the case of Pan Weimin's illness that French New Company and Shunlian Company applied for unblocking from a provincial high court, but they were also rejected by the court.

Mr. Huang told reporters that Pan Weimin, the late defendant of the two cases, is the actual controller of French New Company and Shunlian Company.

"The ruling of this change of the subject is likely to have power intervention behind it." An insider who was unnamed.

For the above -mentioned statement that the changes that do not meet the judicial criteria and the difficulty of enforcement and involved in power intervention are difficult, on June 17, the reporter should send a written interview letter to it in response to the publicity office of a provincial high court, but as of press time, a province was high. The hospital has not responded. The reporter tried to contact the other defendants and guarantors in the case, but it was not successful. The reporter will continue to pay attention to the progress of the matter. (This article published on July 12, 2022 China Business Daily Rule of Law Weekly 4th Edition)

- END -