Unblocking application

Urgent request to immediately cancel the application for illegal seizure

Applicant: Chen Chaoyang, male, born on April 16, 1975, Han nationality, lived in Xiyuanxuan, No. 20 Guanghui Road, Huaxin Development Zone, Hengyang City, Tel: 15874763333.

Urgent request

On November 5, 2019, the plaintiff Jiang Hong, the plaintiff of the Shigu District People's Court, filed a dispute concerning the sales contract dispute between the defendant Hengyang Yanhai Industrial Development Co., Ltd., Liao Zhengang, the third person Wu Yousheng, and the third person Cai Longwei. Article 56 of the Procedural Law appends the applicant as the defendant and seizes the 29.6m2 property located on the first floor of No. 49 Renmin Road, which damages the lawful rights and interests of the applicant. It is requested to immediately revoke the civil ruling of No. 53-7 and No. 53-8 of Shimin Yichu, and to lift the illegal seizure of the 29.1 square meters of the facade of No. 49 Renmin Road, Shigu District.

Facts and reasons

1. The property that was found to be seized was legally obtained by the applicant and the building ownership certificate was obtained.

In February 2019, when the Zhuhui District People's Court executed the case of Yang Zhenglin and Liao Zhengang's private lending dispute, the applicant negotiated with Yang Zhenglin, Liao Zhengang and Hengyang City Commercial Bank to reach an agreement, and the applicant repaid the bank on behalf of Hengyang Zhongxing Real Estate Development Co., Ltd. Debt is released from the mortgage. The 311.445 square meters of the first floor of No. 49 Renmin Road, Shigu District, owned by Hengyang Zhongxing Real Estate Development Co., Ltd. is owned by the applicant. [See Zhuhui District People's Court Zhu Zhi No. 105-5 Civil Ruling Book].

According to the agreement reached, the applicant substituted Hengyang Zhongxing Real Estate Development Co., Ltd. to repay the commercial bank loan to release the mortgage. The subrogation of Hengyang Zhongxing Real Estate Development Co., Ltd. compensated Yang Zhenglin for 700,000 yuan, and later executed the 105-5 ruling in the real estate department. property.

Therefore, the applicant was approved by the relevant party of the Hengyang Municipal People's Government and the court, and after paying the full consideration, and obtained the Facade of No. 49 Renmin Road, it was a goodwill third person.

Second, the additional applicant is the accused to adapt to legal errors. Applicants are suspected of being malicious in the act of the defendant.

Your Court adapts to Article 54 of the Civil Procedure Law to append the applicant as the defendant. The specific content of the provision is “the object of litigation against both parties. If the third party believes that there is an independent claim, it has the right to file a lawsuit. Although the third party has no independent claim right, the third party may apply for participation in the lawsuit if it has a legal interest in the case, or the people's court may notify him to participate in the lawsuit. Three people have the litigant rights and obligations of the parties."

The law stipulates that only the third party who has no independent claim right and the third party who has the independent claim right apply to participate in the lawsuit, but your applicant adds the applicant as the defendant. Does the plaintiff think about the rights of the applicant and have he thought about whether he has fulfilled his obligations to the applicant? What are the rights and obligations of the plaintiff and the applicant? What is the legal relationship between the plaintiff and the applicant? Therefore, the applicant is not an eligible defendant in the case.

According to Article 11 of the "Several Provisions on the Strict Implementation of the Civil Procedure Law of the People's Republic of China in Economic Trial Work", "the people's court has fulfilled its obligations, or obtained the property of one of the parties according to law, and paid the corresponding consideration. A person other than the legal relationship between the defendant may not notify the third party who has no independent claim to participate in the lawsuit. The provision of the applicant shall not be added to the third party without the independent claim.

According to Article 57 of the Opinions on the Application of the Civil Procedure Law of the People's Republic of China, Article 57: If the parties who must jointly conduct the litigation fail to participate in the litigation, the people's court shall notify the people in accordance with the provisions of Article 119 of the Civil Procedure Law. The parties may also apply to the people's court for additional application. The people's court shall examine the application submitted by the party, and if the application is unreasonable, the ruling shall be rejected; if the application is justified, the additional party shall be notified in writing to participate in the lawsuit. The people's court should exercise its duty of review. The reason for the suspension of the case in March was that the applicant had obtained the ownership of the house and provided a copy of the certificate of ownership. The Shigu District People's Court knew that the applicant was the subject of the defendant in the case. Appropriate, it is still suspected that the applicant’s behavior is malicious.

3. If the conditions for accepting the case are not met, the lawsuit shall be dismissed immediately.

The applicant obtained the ownership of the house according to the ruling of Zhu Zhi No. 105-5 made by the Zhuhui District People's Court on February 24, 2019. According to Article 111, paragraph 5 of the Civil Procedure Law, “the law has already been imposed on the judgment and ruling. In the case of effectiveness, if the party sues, the plaintiff shall be notified in accordance with the appeal, except for the ruling of the people's court to dismiss the case, and the Opinions on the Application of the Civil Procedure Law of the People's Republic of China, Article 139, “The Prosecution Does Not Meet the Acceptance Conditions The people's court shall rule that the case shall not be admissible. If the case is found to be inconsistent with the conditions for acceptance, the ruling shall be dismissed. The ruling that is not accepted shall be signed by the umpire and the clerk who is responsible for reviewing the case; the ruling rejecting the lawsuit shall be heard. The judges and clerk of the case signed the bill. The provisions of the case should be immediately dismissed.

On December 23, 2019, the Intermediate People's Court of Hengyang City issued the Notice of Acceptance of Case No. 1 of Hengzhong Law Supervisor, and decided to accept Jiang Hong's Zhu Zhizi No. 105 made by the People's Court of Zhuhui District of Hengyang City. Yang Zhenglin and Liao Zhengang Reconsideration of the civil ruling in the case of a loan dispute. The applicant's rights and obligations will be determined in the results of the reconsideration decision. Is it necessary for the Shigu District Court to repeat the judgment in the judgment?

4. The ruling on the seizure of the applicant's property to the legal error, the Shigu District People's Court has taken the property preservation measures against the applicant has exceeded the plaintiff's claim.

According to Article 92 of the Civil Procedure Law of the People's Republic of China, the People's Court may make property preservation in accordance with the application of the other party for cases that may be unenforceable or difficult to enforce due to the actions of one of the parties or other reasons. Ruling; if the party has not filed an application, the people's court may also decide to take property preservation measures when necessary, and the first paragraph of Article 94, “Property preservation is limited to the scope of the request, or the property related to the case”, the necessity of property preservation One of the conditions is that the case for filing a lawsuit must be a payment of the lawsuit, or a merger involving the payment of the lawsuit, that is, the lawsuit filed must have a payment. The plaintiff's lawsuit is simply a lawsuit to confirm the invalidity of the contract. It is not necessary to apply for execution to confirm the invalidity of the contract. There is no such thing as making the judgment unenforceable or difficult to enforce; property preservation is limited to the scope of the request, which means “the scope of the claim”, not the property. In order to preserve the application, it was decided that the lawsuit preservation measures had exceeded the plaintiff’s claim, which violated the principle of “not ignoring the civil law”.

"The parties may apply for property preservation and the court may make a ruling on property preservation." The terminology of the law here is “may”. In other words, whether the court makes a ruling on property preservation is subject to judicial review. Therefore, the Shigu District People's Court has already determined that this case is a confirmation of the lawsuit. If the ruling is to seal up the applicant's property, it should be revoked in the basic concept of justice that “the wrong case must be changed”.

5. The law clearly stipulates that the court of legal property owned by a third party may not be sealed up.

Article 25 of the Provisions of the Supreme People's Court on the Seizure, Seizure and Freezing of Property in the Civil Execution of the People's Court stipulates that: the people's court shall not impose measures on the seizure, seizure or freezing of the property that has been transferred by the executor of the registration authority. . Article 31 (1) stipulates that if the property of an outsider is seized, detained or frozen, the people's court shall make a stipulation of the seizure, seizure or freezing, and serve it on the executor, the executor or the outsider.

The original No. 49 property of Renmin Road is owned by Hengyang Zhongxing Real Estate Development Co., Ltd., and the relative of the “Hengyang City Commercial Housing Purchase and Sale Contract” signed by the plaintiff is Hengyang Yanhai Industrial Development Co., Ltd., and the Shigu District People’s Court has seized the applicant. Purchase the property of Hengyang Zhongxing Real Estate Development Company.

The applicant applied for the property rights of the house in accordance with the civil ruling of the Zhuhui District People's Court, and paid the consideration of more than 10,000 yuan. Only a few months before and after the applicant's payment and real estate transfer, the Shigu District People's Court made a ruling to seize the property acquired by the applicant, so that the applicant could not exercise the legitimate rights of the right holder as stipulated in the Property Law. The Shigu District People's Court not only damaged the seriousness of the law and the credibility of the court, but also seriously violated the lawful rights and interests of the applicant.

In summary, this case is a typical case of abuse of appeal and malicious litigation. The plaintiff knows that the applicant has a high interest rate debt and deliberately uses malicious means. Malicious litigation is inseparable from the support of judges for abusing discretion. The discretion of judges should also be guided by legal principles. It is not unimpeded, and discretionary people do whatever they want. Applicants hope that law enforcement officials can basically enforce the law, do not seek fairness and justice, and only ask for the bottom of the world, do not deliberately create a great security risk to the society, contrary to the "decision to build a harmonious legal society" proposed by the Sixth Plenary Session of the Central Committee of the Central Committee of the Communist Party of China Back. The judges of the people's courts should respect the legal facts and handle cases according to law, instead of relying on personal likes and dislikes, and relying on some very far-fetched "reasons" to judge. If the defendant's method is added in accordance with this case, the population of China is more than one billion people. If I don't look good, I will list him as a defendant. If I urgently need a loan, I will apply for property preservation to seal up the collateral.

The people's courts must conscientiously implement the Constitution, the "fact-based, law-based" and the principle of "equal equality before the law", the people's judges must be faithful to the law, in the case In the trial, a fair and reasonable ruling is made to protect the legal rights of each party in accordance with the law.

Sincerely

Shigu District People's Court of Hengyang City

applicant:

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