Property preservation ruling reconsideration application template

Applicant: Subgrade Project 12 Project Manager

principal:

Construction location:

contact number:

Respondent:

residence:

The applicant received the civil ruling of No. 28 of Liuminyichuzi in your hospital and the notice of assistance in execution, and refused to accept the ruling on freezing the claim of 700,000 yuan from the ruling. The applicant applied for reconsideration according to law. The facts and reasons are as follows:

1. Relevant provisions on property preservation by law and judicial interpretation:

Article 94 of the Civil Procedure Law of the People's Republic of China states: “Property preservation is limited to the scope of the request or the property related to the case.” Article 105 of the Opinions of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China : "The debtor's property cannot satisfy the preservation request, but if the third party has a debt due, the people's court may, according to the creditor's application, decide that the third party shall not pay off the debtor of the case. If the third party requests reimbursement, the people's court shall Article 14 of the Supreme People's Court's Stipulations on the Strict Implementation of the Civil Procedure Law of the People's Republic of China in Economic Trial Work: “When the people's court adopts property preservation measures, the scope of preservation shall be limited to the parties' disputes. Property, or the property of the defendant. No preservation measures shall be taken against the property of the outsider, and property preservation measures shall generally not be taken for property related to the case that the outsider has obtained in good faith; the respondent shall provide the corresponding amount and have property for execution. If it is guaranteed, the people’s court taking the measures shall When the property preservation is lifted." "The Supreme People's Court's Reply on the Cancellation of the Property of the Outsiders" clearly states: "The Supreme People's Court Law Issue [1994] No. 29 "On Economic Trial Work Strictly implement the provisions of Article 14 of the "Procedures of the People's Republic of China on Civil Procedure Law" and the Supreme People's Court Law [1992] No. 22 "On the Application of the Civil Procedure Law of the People's Republic of China" The spirit of the stipulations of Article 105 of the Opinions is the same and should be strictly enforced. If the debtor’s property cannot satisfy the preservation request, but the case has an expiring claim, the people’s court may decide the outsider of the case on the basis of the creditor’s application. The debtor shall not be repaid. If the outsider has no objection to the debt due and asks for reimbursement, the people's court shall deposit the property or the price. However, the people's court shall not take preservative measures on its property."

Second, the nature of the performance bond

The performance bond is a legal concept proposed in Article 46 of the Tendering and Bidding Law of the People's Republic of China. The second paragraph stipulates: “If the bidding file requires the winning bidder to submit the performance bond, the winning bidder shall submit it.” However, the law is not correct. Its meaning, nature and role are explained.

It is speculated that the legislative intention and the engineering practice, the purpose of creating a performance bond, is mainly to urge the winning bidder to fully fulfill the contractual obligations. Specifically, it has the following functions: First, to ensure the rights and interests of the tenderer. The contractor shall be deemed to have sufficient performance in good faith by paying the performance bond. If the winning bidder has a breach of contract, the tenderee may receive corresponding compensation; 2. Supervise the winning bidder to perform. If the winning bidder wants to withdraw the project, he must take into account the risk of the deposit being forfeited. Therefore, the performance bond can be used to effectively restrain the successful bidder from performing the project. Third, the wages of migrant workers are guaranteed. In the event that the winning bidder infringes the rights and interests of migrant workers, the margin can be used to solve this problem.

Through the above analysis, it can be concluded that the performance guarantee metal is a special measure to supervise the successful bidder in the "Tendering Investment Law of the People's Republic of China", and it is different from the legal guarantee method of the debt. Therefore, in the construction process, whether the contractor collects the contractor’s performance bond or the general contractor’s performance bond for the subcontractor, it is an industry practice and, in essence, is for performance guarantee.

Therefore, the performance bond will be valid from the moment of payment, neither to the party receiving the payment nor to the party to be paid, but to determine its ultimate vesting based on whether the conditions agreed by the parties are fulfilled. If the payer does not default, it will be returned. If the payer defaults, it will be as simple as the party that collects it. If the performance bond is understood to be owned by the party that is paid under any circumstances, the paragraph will be borrowed in the same way as the loan, and it will not function as a guarantee. This is legally unreasonable and is also conducive to creation. The purpose of this system.

Third, the deposit belongs to

The applicant and the company signed a construction contract and received a performance bond of 1.8 million yuan according to industry practice. Because it does not have the ability to construct, serious breach of contract, the request for withdrawal. At this time, the applicant confiscates the conditional achievement of the company's performance bond, so this paragraph is no longer valid, but belongs to the applicant. Despite this, the applicant still refunded the full performance bond to the Liuwu Expressway Foundation Engineering Department of the company on November 21, XX, and January 16, XX, with receipts.

Fourth, the conclusion

From the legal provisions and the relevant judicial interpretation of the Supreme People's Court, from the nature of the performance bond, from the deposit of the deposit can draw the following conclusions:

1. The scope of property preservation shall be limited to the property disputed by the parties or the property of the defendant, and no preservation measures shall be taken against the property of the outsider;

2. The debtor’s property cannot satisfy the preservation request, but if the case has an expiring claim, the people’s court may, according to the creditor’s application, rule that the outsider may not pay off the debtor. However, the people's courts should not take preservative measures on their property;

3. The performance bond shall be valid from the moment of payment, neither to the party receiving the payment nor to the party to be paid, but shall determine its ultimate vesting according to whether the conditions agreed by the parties are fulfilled;

4. According to industry practice and contractual agreement, this paragraph is no longer valid, but belongs to the applicant;

V. The performance bond was returned to the High Speed ​​Roadbed Engineering Department of the Company on November 21, XX, and January 16, XX.

In summary, the applicant shall not take the preservation measures as the outsider of the case concerning the construction contract dispute between the respondent and the Liuwu Expressway Foundation Engineering Department of the Co., Ltd.; the effect of the deposit paid by the Co., Ltd. to the applicant has been fixed. It belongs to the applicant; in fact, the applicant has returned the full amount of the Highway Subgrade Engineering Department of the company on January 16, XX; the applicant has been unable to assist the court.

According to Article 99 of the Civil Procedure Law of the People's Republic of China, the applicant applies to your hospital for reconsideration, and returns to your hospital to hear the law, lift the protection measures for the applicant and assist in the implementation of the obligation.

Sincerely

Intermediate People's Court