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The impact of the enforcement agreement on the enforcement case

UpdateTime:2021-05-14 10:36:54 Views:

We act for enforcement cases. No matter which party we represent, we often reach an enforcement agreement to solve the problem after a game or compromise. In practice, the enforcement agreement manifests in various forms, some are formed under the leadership of the court, some are reached privately, and different forms are against the original. Enforcement of cases has different effects, and even has a huge impact on rights and interests. The author recently handled a case, from which he analyzed the implementation agreement and sorted out the relevant regulations.
 
 
The manifestation of the implementation agreement
 
The agreements formed during execution are expressed as "agreements" or "enforcement settlement agreements" from the name; some are formed only for resolving enforcement cases from the content, and some are not only for resolving enforcement cases, but also at the same time. In addition to other disputes that have been settled or not litigated; from the performance of the agreement, only the person subject to execution can be seen, and some have joined the performance guarantor or a joint performance subject in addition to the person subject to execution.
 
From the perspective of the space for forming an enforcement agreement, there are two ways: one is the enforcement agreement formed in the enforcement procedure, this type of agreement is attached to the court enforcement file or the content of the agreement is recorded in the enforcement transcript, we call the enforcement settlement agreement; the second is reached in private Enforcement agreement, the court did not attach the file or did not include the enforcement transcript, we call it private enforcement of the settlement agreement.
 
 
The validity of the implementation of the settlement agreement and the consequences of implementation
 
Article 230 of the "Civil Procedure Law of the People's Republic of China" (hereinafter referred to as the Civil Procedure Law) stipulates: During the execution, if both parties reach an agreement on their own, the executor shall record the content of the agreement in the record, which shall be signed by both parties. chapter. If the parties fail to perform the settlement agreement, the people’s court may, on the application of the parties, resume the enforcement of the original effective legal document; Article 231 stipulates: During the execution, the person subject to enforcement provides guarantee to the people’s court, and the person who applies for enforcement If it agrees, the people's court may decide to suspend execution and the time limit for suspension of execution. If the person subject to execution fails to perform the execution within the time limit, the people's court has the right to enforce the property of the person subject to execution or the property of the guarantor.
 
The Interpretation of 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 Procedure Law) stipulates that Article 466: the applicant for enforcement and the person subject to enforcement reach a settlement agreement and request to suspend enforcement or withdraw In the case of an application for enforcement, the people’s court may rule to suspend enforcement or terminate enforcement; Article 467 stipulates: Where one party fails to perform or fails to fully perform the settlement agreement reached voluntarily by the two parties during enforcement, and the other party applies for enforcement of the original effective legal document, The people's court should resume execution, but the executed part of the settlement agreement shall be deducted; if the settlement agreement has been fulfilled, the people's court shall not resume execution.
 
Article 2 of the Provisions of the Supreme People’s Court on Several Issues Concerning Enforcement of Settlement (hereinafter referred to as “Enforcement Settlement Provisions”) stipulates: After the settlement agreement is reached, in any of the following circumstances, the people’s court may rule to suspend enforcement, (1) the parties shall jointly Where a written settlement agreement is submitted to the people’s court, (2) one party submits a written settlement agreement to the people’s court and the other parties approve it, (3) the parties reach an oral settlement agreement, and the executor will record the content of the settlement agreement, and the parties shall The parties’ signatures or seals; Article 8 stipulates: After the execution of the settlement agreement is completed, the people’s court shall close the enforcement case; Article 9 stipulates: If the party to be enforced fails to perform the execution settlement agreement, the person applying for execution may apply for restoration of the original execution. For legal documents, you can also bring a lawsuit to the enforcement court for the performance of the enforcement settlement agreement; Article 13 stipulates: After the resumption of enforcement, the people’s court will not accept the lawsuit brought by the applicant for enforcement on the performance of the enforcement settlement agreement; Article 14 stipulates : The applicant for enforcement files a lawsuit for the performance of the enforcement settlement agreement, and the enforcement court may rule to terminate the enforcement of the original effective legal document after accepting it. The seizure, seizure, and freezing measures in execution are automatically converted to preservation measures in the litigation; Article 18 stipulates: the guarantee clause is stipulated in the execution settlement agreement, and the guarantor promises to the people’s court that the person subject to execution will be voluntary if the execution settlement agreement is not fulfilled If direct enforcement is accepted, after the original effective legal document is resumed, the people's court may directly rule on the execution of the guaranteed property or the property of the guarantor in accordance with the application of the person applying for execution and the agreement of the guarantee clause.
 
Article 230 of the aforementioned Civil Procedure Law and Article 2 of the Enforcement Reconciliation Provisions are essentially provisions on the validity of the enforcement agreement. From the above provisions, it can be seen that the implementation agreement must be expressed by the agreement of the parties to the agreement, and must meet the procedural requirements for submitting the agreement to the execution court or recording the content of the agreement in the execution transcript. The procedural requirements are essentially the content of the execution agreement by the execution court. For review, the enforcement court will review whether the content of the agreement violates the mandatory provisions of laws and regulations, whether it violates public order and good customs, etc., and the reviewed enforcement agreement is attached to the file or recorded in the transcript, and becomes an enforcement settlement agreement. In fact, the issue of the validity of the enforcement agreement has been clarified as early as in the "Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of the People's Courts (for Trial Implementation)" [Fa Shi [1998] No. 15] (hereinafter referred to as "enforcement regulations"), of which the 80th Article 6 stipulates: The settlement agreement should generally be in written form, and the executor should attach a copy of the settlement agreement to the file; if there is no written agreement, the executor should record the content of the settlement agreement and sign or seal it by both parties; Article 17 stipulates that: if the settlement agreement reached between the parties is legal and valid and has been fulfilled, the people's court shall conduct enforcement and close the case. After the promulgation of the Civil Code of my country, relevant laws and judicial interpretations were amended. On December 23, 2020, the Supreme People’s Court revised the enforcement regulations, and the number of the enforcement regulations was changed to "Fa Interpretation [2020] No. 21". The provisions of Article 86 and Article 87 have been cancelled in the new regulations. If the enforcement settlement agreement is reviewed by the enforcement court, if the enforcement application is not withdrawn, there will be consequences for the suspension of enforcement, such as full performance will result in the legal consequences of the termination of the enforcement, and the unreviewed enforcement settlement agreement will not have the legal consequences of the suspension of enforcement. If a dispute arises during the execution of the settlement agreement, the legal consequences of restoring the execution of the original effective legal document or bringing a lawsuit against the execution of the settlement agreement can only be selected, and the choice is unique. Once the restoration is selected, it shall not be Then file a lawsuit for the enforcement of the settlement agreement, and once you choose to file a lawsuit, the original enforcement case ends. For the third party who is included in the implementation of the settlement agreement and assumes the responsibility of guarantee, according to Article 231 of the Civil Procedure Law and Article 18 of the Implementation of the Settlement Regulations, the third party will be directly enforced after the execution is resumed. If a lawsuit is filed, the plaintiff Only a third party can be listed as a defendant.
 
 
Consequences of performing the settlement agreement privately
 
Article 19 of the Regulations on Enforcement Settlement provides that: during the enforcement process, the person subject to enforcement shall follow the settlement agreement reached by the parties themselves but not submitted to the people’s court, or one party submits the settlement agreement to the people’s court but the other parties do not approve it, in accordance with Article of the Civil Procedure Law. Where an objection is raised under Article 225, the people’s court shall deal with it separately according to the following circumstances: (1) When the settlement agreement has been fulfilled, it shall rule to terminate the execution of the original effective legal document; (2) The performance period stipulated in the settlement agreement has not yet expired. Or if the performance conditions have not been fulfilled, it shall be ruled to suspend the execution, except in the circumstances stipulated in Article 578 of the Civil Code; (3) If the party subject to execution is performing its obligations in accordance with the settlement agreement, it shall be ruled to suspend the execution; (4) If the person subject to enforcement fails to perform the settlement agreement, it shall be ruled to reject the objection; (5) If the settlement agreement is not established, not effective or invalid, it shall be ruled to reject the objection.
The above content is essentially about how to handle the enforcement case or how the person subject to enforcement should deal with the enforcement case when the enforcement applicant continues to enforce the original effective legal document when a private enforcement settlement agreement is signed. In practice, there are roughly two reasons for the formation of a private enforcement settlement agreement: First, the parties to the enforcement neglect or take it for granted that whether the content of the enforcement agreement is let the court know whether the legal effect will not be affected, and the enforcement agreement has not been submitted to the court for attachment or the content of the enforcement has not been recorded. Enter the transcript; however, some applicants consider that the content of the implementation agreement has increased the scope of rights and interests compared with the implementation of the legal document, or the implementation of the agreement has a debt to the third party, and it is more beneficial to the interests of the party not to execute the original effective legal document, and deliberately violates the implementation of the agreement Submit to the court for review. As for the execution settlement agreement reached in private, the court is not aware of the validity of the execution settlement agreement. Because there is no effective execution agreement, there will be no legal consequences for suspension of execution, and there is no problem of resuming execution. The applicant for execution The person has the right to request the continuation of the original effective legal document, but the person subject to execution may, in accordance with the provisions of Article 19 of the Enforcement Settlement Regulations, and depending on the implementation of the Enforcement Settlement Agreement, make a difference in enforcement objection defense. Of course, when a dispute arises from the performance of a private implementation of the settlement agreement, a lawsuit can be filed. The performance of the effective legal document of the lawsuit will also be subject to different enforcement objections based on the provisions of Article 19 of the Implementation of the Settlement Regulations. Those who file a lawsuit against the private enforcement of the settlement agreement often ignore the issue of the time limit for the original enforcement case, and there is a risk that the applicant for enforcement will lose the enforcement rights and interests. This is particularly important for us to represent the enforcement of the case!
 
In summary, through the above comparison, it can be seen that litigation for disputes arising from the implementation of the settlement agreement will inevitably lead to the termination of the original enforcement case; if a lawsuit is filed for disputes arising from the implementation of the private implementation of the settlement agreement, the original enforcement case will not be terminated, and the applicant for enforcement will continue. When the original effective legal document is executed, the person subject to execution shall make corresponding execution objection defenses according to different performance conditions! 

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