Notice of the Commission of Politics and Law of the CPC Central Committee and the Supreme People's Court on Regulating the Case-closing Standards for the Intensive Clearing and Enforcement of Long-pending Cases

中央政法委员会、最高人民法院关于规范集中清理执行积案结案标准的通知

Promulgating Institution: Political and Legislative Affairs Committee of the Communist Party of China Central Committee; Supreme People's Court

Document Number: Fa Fa [2009] No. 15

Promulgating Date: 03/19/2009

Effective Date: 03/19/2009

颁布机关: 中央政法委员会; 最高人民法院

文    号: 法发[2009]15号

颁布时间: 03/19/2009

实施时间: 03/19/2009

Text

正文

The party commission under the committees of the Communist Party of China (CPC) and the commission of politics and law of the CPC in all provinces, autonomous regions and municipalities directly under the Central Government, the party commission of the CPC and the commission of politics and law of the CPC of the Xinjiang Production and Construction Corps, higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government, the Branch of the Higher People's Court of the Xinjiang Uyghur Autonomous Region of the Xinjiang Production and Construction Corps, the General Political Department of the People's Liberation Army and the Military Court ,

A large number of long-pending cases have been heard and closed and rulings thereof have been enforced since the commencement of the nationwide initiative to clear and enforce long-pending cases, signifying that interim achievements have been made. However, there also exist a host of problems: certain local people's courts fail to fully appreciate the significance of the initiative and therefore have so far failed to make necessary efforts in clearing the long-pending cases and consequently the proportion of such cases that are closed is rather low; people's courts in some regions are over-cautious in enforcing rulings of the long-pending cases due to a misinterpretation of the provision that "enforcement measures must be used with prudence", as a result of which creditors' rights fail to be realized; there are deviations in the case-closing standards in certain regions, including improper suspension or closing of cases, etc; the basic data used by the courts of some regions are inaccurate and there exist such malpractices as withholding, intentional omission of information, or even falsification in work reports; court archives and materials of certain regions are poor in quality and incomplete in content. In order to achieve the overall objectives of the initiative to clear and enforce long-pending cases, issues concerning the further regulation of case-closing standards in the initiative are hereby notified as follows:

1. Resolute efforts must be made to close and enforce cases where there are assets for the enforcement so as to effectively raise the proportion of cases which are properly closed and enforced.

(a) The assets owned by the person against whom the ruling of a long-pending case is enforced (hereinafter referred to as the Enforcee), except for the housing, daily necessities and living expenses necessary for the livelihood of the said person and the family members supported thereby, as well as other assets that shall not be sealed up, detained, or frozen as are provided in applicable laws or judicial interpretations, shall be deemed as enforceable assets.

(b) An enforcing court shall, in accordance with the law, adopt timely and necessary enforcement measures, including seal-up, detainment or freezing, against assets which are ascertained as target assets for enforcement, and shall adopt such enforcement measures as auctioning or sale of the assets or repaying repayable debts in kind by the assets.

(c) Where the whereabouts of the Enforcee are unknown ,yet assets of the said person may be used as target assets for enforcement, enforcement measures may be directly adopted against such assets of the person. The enforcement notice shall be served in accordance with relevant provisions of the law.

(d) Where the target assets of the Enforcee are under the control of other courts or other law enforcement agencies, or that there exist conflicting claims on the ownership of the assets or other priority rights which are being heard or reviewed, the enforcing court shall apply for coordination to the court at the next higher level or other departments concerned according to statutory procedures and shall not close the case.

(e) Where a case cannot be executed and closed during the duration of the initiative to clear and enforce long-pending cases due to the long time period needed for assisted enforcement or assets liquidation, the enforcing court shall actively coordinate all departments concerned so that the case will be enforced and closed on an early date. Before it is properly enforced, the case cannot be deemed as closed.

(f) Where the ruling of a case is not suitable to be enforced during the initiative in consideration of stability or petition by the parties concerned, the enforcing court shall apply for coordination to local directing team in charge of the clearing and enforcement of long-pending cases. Before it is properly enforced, the case shall not be deemed as closed.

(g) Where a case which was originally listed as a case with target assets for enforcement is later proven by further investigation during the initiative to clear and enforce long-pending cases to be a case without assets for enforcement, the case shall be referred by the enforcing court to the court at the next higher level for further verification.

2. An enforcing court shall exhaust all assets investigation measures in accordance with the law, and shall inform the applicant for enforcement of the results of the investigation. A case may only be deemed as a case without target assets for enforcement after all investigation measures prescribed by law are exhausted regarding the assets of the Enforcee .

(a) Where the applicant for enforcement is unable to present the assets of the Enforcee or sufficient clues of such assets, the enforcing court shall require the Enforcee to make assets declaration.

Where the Enforcee makes the assets declaration as required, or the applicant for enforcement presents the assets of the said person or clues of such assets, the enforcing court must properly verify the declaration, assets or clues thereof. The applicant for enforcement shall be informed of the results of such verification.

Where based on the clues presented, the Enforcee is able to fulfill relevant obligations, yet the whereabouts of the assets cannot be verified, the enforcing court may, on the basis of the actual conditions of the case, adopt legal measures such as releasing information on the failure of the Enforcee to perform the obligations through the credit system registry or mass media.

(b) Where the Enforcee claims in the assets declaration that he or she has no target assets for enforcement, or the applicant for enforcement is unable to present the assets of such person or clues thereof, the enforcing court shall adopt the following approaches to the case:

(i) Where the Enforcee is a legal person, the court shall inquire into the bank accounts of such legal person with the help of the financial institutions concerned, inquire into the real estate registration of such person with the help of relevant real estate management departments, inquire into the equity interests of the legal person with the help of the authorities in charge of legal person registration and inquire into the vehicles owned by the legal person with the help of competent vehicle management authorities, etc;

(ii) Where the Enforcee is a natural person, the enforcing court shall inquire into such person's assets or clues thereof, including the source of income of the person and the mature creditor's rights owned by the said person through interview with the employer of the Enforcee and the members of the community where the Enforcee resides. Where the information obtained through the aforementioned inquiries proves that the Enforcee has a reasonably high income, the enforcing court shall proceed with the investigation according to the approaches applicable to a legal person.

(c) Where the business license of an enterprise legal person as the Enforcee is cancelled, written off or revoked, or that such legal person has suspended its business operation, the enforcing court may, after the applicant for enforcement submits application for liquidation or auditing and pays in advance all fees payable, order the shareholders of the enterprise to commence the liquidation process, or entrust an intermediary with the auditing of the enterprise.

(d) In a case where the Enforcee is yet to be located, the said person must be located or contacted according to the address or contact information (if any) included in the basis for enforcement; where there are no other proper clues and the Enforcee concerned is a legal person, the persons responsible for the legal person shall be located on the basis of the registration information of such legal person; where the said Enforcee is a natural person, the person shall be located through contact with the local police station, resident's committee or villager's committee in the domicile (or place of temporary residence) of the Enforcee, or through interviews with the relatives or neighbors of the Enforcee.

(e) Where the Enforcee cannot be located and such person has no assets for enforcement, the files on such a case shall include the following materials:

(i) where the Enforcee is a legal person: the information on the registration of the legal person, on-site investigation of the business premises of the legal person or the written certification by the registration authorities;

(ii) where the Enforcee is a natural person: reports on the interviews with the close relatives or neighbors of the person, local villager's committee, resident's committee or police stations, or certification materials.

(f) Where it is determined that the Enforcee has no assets for enforcement, all materials concerning the measures adopted to inquire into the assets of the Enforcee must be included in the files on the case. The said materials shall include work records, investigation (inquisition) reports, interview records, written confirmation by the parties concerned, the written reply by the inquired entities, as well as other materials that may sufficiently prove the status of the assets of the Enforcee and the investigation conducted by the enforcing court.

(g) The enforcing court shall provide feedbacks to the applicant for enforcement concerning the enforcement progress of the case. Records on such feedbacks shall be included in the files.

(i) A key case with no target assets for enforcement shall be handled as follows on the basis of the actual circumstances:

(i) Where the applicant for enforcement is a member of the gravely disadvantaged, the remedy procedures for the gravely disadvantaged shall be triggered if the remedy fund is already in place; where no such remedy fund is in place, the enforcing court shall submit an application to local directing team in charge of the clearing and enforcement of long-pending cases, requesting the said team to coordinate departments concerned to provide proper relief to the said applicant for enforcement.

(ii) Where the applicant for enforcement is not a member of the gravely disadvantaged and yet firmly applies for the enforcement of the case, the enforcing court shall ensure that the parties cease litigations and petitions to the government through appropriate explanation and persuasion.

Where after the proper relief has been given to the applicant for enforcement, it is discovered that the Enforcee possesses assets eligible for enforcement, the enforcing court shall adopt active enforcement measures. After the applicant for enforcement realizes its creditor's rights, the relief previously provided to the applicant shall be recovered and returned to the remedy fund.

3. Where there are assets eligible as target assets for enforcement in a case, the case shall be closed in accordance with the law; otherwise, the case may be closed on the basis of the following conditions and methods.

(a) Where the case meets the requirements provided by laws or judicial interpretations for case-closing, the case may be closed in accordance with the law. Where the enforcement of the arbitral award or notarized documents on creditor's rights has been ruled to be denied, the case may be closed in accordance with the law.

(b) Where all eligible assets of the Enforcee have been enforced and the applicant for the enforcement declares in writing to waiver the remaining unenforced creditor's rights (if any) the case may be closed in accordance with the law.

(c) Where after all the target funds to be enforced against have been transferred to the special account for enforcement funds, the whereabouts of the applicant for the enforcement cannot be ascertained or such applicant refuses to withdraw such funds and where the enforcing court has already withdrawn and kept the funds, the case may be deemed as closed.

(d) In the case of an entrusted enforcement, the entrusted court shall handle the case as a newly accepted case for enforcement and the entrusting court shall not deem the case as closed. Only after the case is duly heard and closed by the entrusted court shall the case entrusted by the entrusting court be deemed as closed. 

(e) A case whose enforcement is suspended shall not be deemed as closed.

(f) In the case of an elevated enforcement or designated enforcement, the court of elevated enforcement or designated enforcement shall deem such a case as a newly accepted case for enforcement. The original enforcing court shall deem the case as cancelled instead of closed.

(g) Where a case is transferred to another competent court because of repeated acceptance by more than one court, the original enforcing court shall deem the case so transferred as cancelled instead of closed.

(i) Regarding a case with no eligible assets for enforcement, should the enforcement procedure cannot proceed within a specific period of time and any of the following requirements is met, the case may, subject to the appraisal by a collegiate panel, be ruled to be closed after the termination of the current enforcement procedure:

(i) where the Enforcee has no assets eligible for enforcement and the applicant for enforcement agrees in writing that the current enforcement procedure may be terminated by the competent people's court;

(ii) where the enforcement has been suspended for two years because the Enforcee has no eligible assets for enforcement, and it has been verified as true that the Enforcee does not have any eligible assets for enforcement;

(iii) where the applicant for enforcement expressly states that it is unable to present the assets of the Enforcee or any clues of such assets, and after a competent people's court has exhausted all investigation measures, agrees in writing to the findings by the said court that the Enforcee truly has no eligible assets for enforcement;

(iv) where the assets of the Enforcee cannot be auctioned, realized on, or that the auction of the assets still aborts after two auction sessions in the case of moveable property, or after three auction sessions in the case of real property or other property, and the applicant for enforcement refuses to accept such assets, or that such assets cannot be transferred to the applicant as debt repayment in kind as provided by applicable laws and regulations, and after exhausting all investigation measures the competent people's court finds that the Enforcee has no other eligible assets for enforcement;

(v) where the Enforcee is an enterprise legal person whose business license is cancelled, written off or revoked, or that such legal person has suspended its business operation and has neither eligible assets for enforcement nor successors to the obligations thereof and no new subject is designated or added in accordance with the law to fulfill such obligations; 

(vi) where after exhausting all investigation measures, a competent people's court verifies that the Enforcee has no eligible assets for enforcement or that such person does own assets but which are not suitable to be used for enforcement, and the parties reach a settlement agreement on phased performance; or

(vii) where the Enforcee has no assets eligible for enforcement, and the applicant for enforcement is a member of the gravely disadvantaged who has already received reasonable relief from the enforcing court.

(j) A ruling to terminate the current enforcement procedure shall be subject to the following conditions:

(i) The written ruling shall include the total value of the subject matter of the enforcement, the value of the enforced creditor's rights and the value of the remaining unenforced creditor's rights. It shall also include the statement that the applicant for enforcement may, if the conditions necessary for enforcement are available, apply to a competent people's court for the enforcement of the remaining creditor's rights.    

(ii) Before issuing the ruling on terminating the current enforcement procedure, the enforcing court shall notify the applicant for enforcement. Where the applicant for enforcement objects to the termination of the current enforcement procedure, the enforcing court shall designate a new taskforce to organize a public hearing attended by the parties concerned on whether the Enforcee has any eligible assets for enforcement; where the applicant for enforcement is able to present any clues of such eligible assets, the enforcing court shall verify such clues; where such verification proves that the Enforcee has eligible assets for enforcement, the enforcement shall be resumed.

(k) Where after the current enforcement procedure is ruled to be terminated, it is discovered that the Enforcee has assets eligible for enforcement, the applicant for enforcement may submit a renewed application for enforcement. The renewed application by the applicant for enforcement shall not be subject to the limitation on application for enforcement.

Where the enforcement is resumed upon application by the applicant for enforcement or is resumed by a competent people's court ex officio, the enforcement case shall be accepted as a new case.  

Courts in all regions of the country shall review the cases which have been reported as closed since the launch of the initiative to clear and enforce long-pending cases and shall adopt timely and corrective measures regarding cases which are closed in violation of this Notice. The directing team in charge of clearing and enforcing long-pending cases shall dispatch inspection teams to review the clearing and enforcement work when appropriate. Malpractices such as falsification or deception shall be subject to severe punishment in accordance with applicable provisions.

    各省、自治区、直辖市党委政法委、新疆生产建设兵团党委政法委，各省、自治区、直辖市高级人民法院、新疆维吾尔自治区高级人民法院兵团分院，解放军总政治部、军事法院：

    全国集中清理执行积案活动开展以来，各地人民法院已执结了一大批积案，清积活动取得了阶段性成果。但也存在一些问题：有的地方认识不到位，清积力度不大，执结率不高；有的地方理解慎用强制措施有误区，不敢依法执行，不敢碰硬，导致债权人权益无法实现；有的地方结案标准存在偏差，存在不当中止、不当终结等问题；有的地方基础数据不准确，存在瞒报、漏报甚至弄虚作假的现象；有的地方案件卷宗质量不高，内容缺损。为实现这次集中清理执行积案活动的总体目标，现就进一步规范清理执行积案的结案标准通知如下：

    一、坚决依法执结有财产可供执行的案件，切实提高执行到位率。

    1、属于被执行人所有的财产，除法律或司法解释规定的被执行人及其所抚养家属生活所必需的房屋、生活用品、生活费用或其他不得查封、扣押、冻结的财产外，均为可供执行的财产。

    2、执行法院对已查明的被执行人可供执行的财产，应当依法及时采取查封、扣押、冻结等相应的执行措施，并依法采取拍卖、变卖、以物抵债等执行措施。

    3、被执行人下落不明但有财产可供执行的，可以直接对其财产采取执行措施。执行通知书的送达应依照有关法律规定办理。

    4、被执行人可供执行的财产在其他法院或者其他执法机关的控制之下，或该财产上存有权属争议或其他优先权正在审理或审查之中的，应按照法定程序提请上级法院或有关部门协调处理，不得作结案处理。

    5、因协助执行周期或财产变现周期较长、无法在清理积案活动期间执行完毕的案件，执行法院应积极协调有关部门，争取尽快依法执结；在执结之前，不得作结案处理。

    6、因涉及稳定、信访等因素在清理积案活动期间不宜强制执行的案件，执行法院应报请当地清理积案领导小组协调解决；在执结之前，不得作结案处理。

    7、原统计为有财产可供执行的案件，在清理积案期间经进一步调查属于无财产可供执行的案件，须报上一级法院审查确认。

    二、执行法院应依法穷尽财产调查措施，并将调查结果告知申请执行人。只有在积极采取法律赋予的调查手段、穷尽对被执行人财产状况的相关调查措施之后，才可以将有关案件认定为无财产可供执行的案件。

    1、申请执行人不能提供被执行人的财产或财产线索的，执行法院应当要求被执行人进行财产申报。

    被执行人进行了财产申报，或者申请执行人提供了被执行人的财产或财产线索的，执行法院必须进行调查核实。调查结果应当告知申请执行人。

    如果根据有关线索认定被执行人有履行能力，但无法查到确切财产下落的，执行法院可以根据案件具体情况，采取在征信系统记录、通过媒体公布不履行义务信息等合法措施。

    2、被执行人申报无财产或申请执行人无法提供被执行人财产或财产线索的，执行法院应按照下列情况处理：

    （1）被执行人是法人的，应当向有关金融机构查询银行存款，向有关房地产管理部门查询房地产登记，向法人登记机关查询股权，向有关车管部门查询车辆等。

    （2）被执行人是自然人的，应当向被执行人所在单位及居住地周边群众调查了解被执行人的财产状况或财产线索，包括被执行人的经济收入来源、被执行人到期债权等。如果根据财产线索判断被执行人有较高收入，应当按照对法人的调查途径进行调查。

    3、作为被执行人的企业法人被撤销、注销、吊销营业执照或者歇业的，在申请执行人提出清算或审计申请并预交相关费用后，执行法院可以责令股东进行清算或者由执行法院委托中介机构进行审计。

    4、需要查找被执行人的案件，执行依据中记载被执行人地址或者联系方式的，必须根据该线索进行查找或联系。无其他适当线索的，被执行人是法人的，应根据登记机关的登记资料查找其负责人；被执行人是自然人的，应到其户籍所在地、住所地（暂住地）向当地公安派出所、居委会、村委会、被执行人的亲属和邻居进行调查。

    5、如果认定被执行人下落不明且无财产可供执行，案卷中必须具备下列材料：

    （1）被执行人是法人的，其注册登记情况、法律文书中注明的营业地址现场调查情况或者登记机关的书面证明材料。

    （2）被执行人是自然人的，其近亲属、邻居、当地村委会、居委会、公安派出所的调查笔录或者证明材料。

    6、认定被执行人无财产可供执行的，必须将所采取的各种财产调查措施的材料归入案卷。包括工作记录、调查（询问）笔录、谈话笔录、当事人书面确认材料、被查询单位出具的书面查询结果，以及其他能够证明被执行人财产状况和执行法院进行相关调查工作情况的材料。

    7、执行法院应当及时将案件执行情况向申请执行人反馈，反馈情况记录必须归入案卷。

    8、对无财产可供执行的重点案件，应分别按照下列情况办理：

    （1）申请执行人属于特困群体，已经设立救助资金的，应当启动特困群体救助程序，给予申请执行人适当救助金；未设立救助资金的，应报请当地清理积案领导小组，协调有关部门给予申请执行人以适当救助。

    （2）申请执行人不属于特困群体但坚持要求执行的，应通过说明解释工作，实现当事人息诉息访。

    给予申请执行人适当救助资金后，如发现被执行人有可供执行的财产，执行法院应积极采取措施执行。在申请执行人实现债权后，应将救助资金扣回纳入救助资金循环使用。

    三、对有财产可供执行的案件，应依法按规定结案；对无财产可供执行的案件，可按下列条件和方式结案。

    1、符合法律或司法解释规定的终结执行情形的，可依法结案。仲裁裁决、公证债权文书被裁定不予执行的，可依法结案。

    2、被执行人可供执行的财产执行完毕后，申请执行人书面表示放弃剩余债权的，可依法结案。

    3、案件执行标的款全部执行到执行款专户，因申请执行人下落不明无法领取或不愿领取，执行法院已依法予以提存的，可以作结案处理。

    4、委托执行的案件，受托法院可以按照新收执行案件办理，委托法院不得作结案处理。待受托法院将案件依法结案后，委托法院的案件一并依法结案。

    5、中止执行的案件，不得作结案处理。

    6、提级执行或指定执行的案件，提级执行的法院或被指定执行的法院应当按照新收执行案件办理，原执行法院可作销案处理，不得作结案处理。

    7、因重复立案移送管辖的案件，原执行法院应作销案处理，不得作结案处理。

    8、无财产可供执行的案件，执行程序在一定期间无法继续进行，且有下列情形之一的，经合议庭评议，可裁定终结本次执行程序后结案：

    （1）被执行人确无财产可供执行，申请执行人书面同意人民法院终结本次执行程序的；

    （2）因被执行人无财产而中止执行满两年，经查证被执行人确无财产可供执行的；

    （3）申请执行人明确表示提供不出被执行人的财产或财产线索，并在人民法院穷尽财产调查措施之后对人民法院认定被执行人无财产可供执行书面表示认可的；

    （4）被执行人的财产无法拍卖变卖，或者动产经两次拍卖、不动产或其他财产权经三次拍卖仍然流拍，申请执行人拒绝接受或者依法不能交付其抵债，经人民法院穷尽财产调查措施，被执行人确无其他财产可供执行的；

    （5）作为被执行人的企业法人被撤销、注销、吊销营业执照或者歇业后既无财产可供执行，又无义务承受人，也没有能够依法追加变更执行主体的；

    （6）经人民法院穷尽财产调查措施，被执行人确无财产可供执行或虽有财产但不宜强制执行，当事人达成分期履行和解协议的；

    （7）被执行人确无财产可供执行，申请执行人属于特困群体，执行法院已经给予其适当救助资金的。

    9、裁定终结本次执行程序的，应当符合下列要求：

    （1）裁定书中应当载明执行标的总额、已经执行的债权数额和剩余的债权数额，并写明申请执行人在具备执行条件时，可以向有管辖权的人民法院申请执行剩余债权。

    （2）执行法院终结本次执行程序，在下达裁定前应当告知申请执行人。申请执行人对终结本次执行程序有异议的，执行法院应当另行派员组织当事人就被执行人是否有财产可供执行进行听证；申请执行人提供被执行人财产线索的，执行法院应当就其提供的线索重新调查核实，发现被执行人有财产可供执行的，应当继续执行。

    10、裁定终结本次执行程序后，如发现被执行人有财产可供执行的，申请执行人可以再次提出执行申请。申请执行人再次提出执行申请不受申请执行期间的限制。

    申请执行人申请或者人民法院依职权恢复执行的，应当重新立案。

    各地法院对清理积案活动以来已经报结的执行案件要重新进行核查，对不符合本通知要求的已结案件要抓紧整改。清理积案领导小组将适时派出检查组进行检查验收。发现故意弄虚作假、欺上瞒下等情况的，将坚决依照有关规定严肃处理。