Author: Anonymous 2016-12-27

——Zheng Feng, a lawyer from Zhejiang Liqun Law Firm

Abstract: Limiting the high consumption of the person subjected to execution is a new measure in judicial practice to urge the person to consciously fulfill their debts, which plays a positive role in alleviating the difficulty of execution. Due to the lack of provisions in current laws and the varying practices of various courts, improper measures can easily constitute infringement of the personal rights of the person subjected to enforcement. This article starts with the concept of restricting high consumption by the person subjected to execution, analyzes its nature and composition using a comparative method, explores the legality and rationality of whether the court adopts it ex officio or based on the application of the parties, and provides the basic meaning of restricting high consumption by the person subjected to execution; The determination of high consumption is the key to adopting this measure. This article cites the regulations of a certain court to analyze the standards of high consumption and believes that what constitutes "high consumption" should vary from person to person and cannot be generalized.

Keywords: difficult to execute, high consumption by those who are executed

The issue of "difficulty in enforcement" has turned court judgments into "legal white papers", seriously affecting the fairness and efficiency of the court. In order to effectively alleviate the difficulty of enforcement, courts in various regions are exploring new enforcement measures. In recent years, some courts have boldly attempted to "limit the high consumption of executed persons", which has had a certain effect in judicial practice. However, different courts have different understandings and practices towards it, which will affect the fairness of enforcement. This article intends to explore the measures to limit high consumption by those subjected to execution from the perspective of basic concepts and comparative methods, and to communicate with everyone in order to achieve a unified understanding.

1、 The Concept and Nature of Restricting High Consumption by Persons Subject to Execution

Restricting the high consumption of the person subjected to execution is a pioneering act in judicial practice, and there is no clear legal provision, and the understanding of its meaning varies. Some people believe that restricting high consumption by those subjected to enforcement, An execution in which the people's court refuses to perform a person who has already filed a case for execution on the grounds of lack of ability to perform after taking various mandatory enforcement measures granted by law, but their various consumption behaviors clearly do not match their declared property status to the court. Therefore, the name, address, and involved situation of the person are publicly announced within a certain range, and the supervision and reporting of their consumption behaviors by units and individuals are used to urge them to consciously perform Measures The author believes that there are three points worth discussing in this definition:

（1） The term 'executed person who has already been filed for execution' is repeated. The person being executed is a special term for the parties involved in the execution of a case. Without filing a case for execution, of course, it cannot be called the person being executed. As in civil litigation, the defendant definitely refers to the defendant after the lawsuit is filed. Before entering the lawsuit, the debtor cannot be called the defendant. Therefore, using the term 'executed person' is clear and cannot create ambiguity, and there is no need to modify it with 'already filed for execution'.

（2） After taking various enforcement measures granted by law, they still refuse to perform on the grounds of lack of ability to perform. According to the provisions of the Civil Procedure Law and Several Issues Concerning Enforcement, various enforcement measures granted by law include: searching, freezing, and transferring the deposits of the person subjected to enforcement; Withholding or withdrawing the income of the person subjected to execution; Seizure, seizure, freezing, auction, or sale of the property of the person subjected to execution; Search the person subjected to execution and their residence or property hiding place; Forcing the person to be executed to deliver the property or documents specified in the legal documents; Forcing the person subjected to execution to move out of the house or withdraw from the land; Coercing the person to be executed to perform the acts specified in the legal documents; Forcing the person subjected to enforcement to double the payment of interest and penalty for delayed performance; Execute the matured creditor's rights of the person subjected to execution; Execution of intangible property and other specific rights and interests. For the enforcement measures stipulated by these laws, the court may choose one or more of them based on the actual situation of each case for enforcement activities, without requiring the court to exhaust all the aforementioned enforcement measures in all cases. If the court exhausts the above measures, as long as the person subjected to enforcement has property, it will generally be effectively enforced, but the cost of enforcement will be very high and cannot achieve socio-economic benefits. Similarly, measures to restrict high consumption by the person subjected to enforcement should not be limited to being implemented only after exhausting the enforcement measures clearly stipulated in the aforementioned laws.

（3） The application of the right holder is a prerequisite. Civil liability is the responsibility imposed on those who fail to fulfill their obligations and infringe upon the rights of others, while rights relief is the protection and relief of rights holders when their rights are violated. Limiting the high consumption of the person subjected to execution is not a civil liability, but a means of relief for those whose rights have been infringed upon. This is a coercive measure against the person subjected to execution, which to some extent limits the right of the person to freedom of conduct. The court voluntarily adopts this measure based on its authority, without legal basis. If the operation is improper, it will infringe on the personal rights of the person being executed and become illegal execution. If the restriction of high consumption by the person subjected to execution is regarded as the remedy right of the applicant for execution, and if the person subjected to execution voluntarily fulfills the statutory debt due to lack of ability to perform, but engages in high consumption behavior in daily life, the applicant applies to the court for the remedy right to restrict high consumption by the person subjected to execution. Therefore, the court may confirm the applicant's remedy right based on the clear rights and obligations between the parties, Allowing high consumption restrictions on those who maliciously evade debt. In this way, it can not only ensure the superiority of the measures taken by the person subjected to enforcement to restrict high consumption, but also ensure the legality of the enforcement measures. Moreover, Article 98 of the Civil Law of the People's Republic of China (Draft), which was submitted to the National People's Congress for discussion on December 17, 2002, stipulates that "if a natural person or legal person engages in activities such as evading funds, concealing, or transferring property, and refuses to comply with legally effective legal documents, the people's court may, upon the application of the right holder, announce the situation of evading civil liability and take necessary measures to limit their high consumption and other behaviors, It can be seen that the application of the right holder should be one of the constituent elements limiting the high consumption of the person subjected to enforcement.

The author believes that restricting the high consumption of the person subjected to execution refers to an enforcement measure taken by the court to refuse to fulfill their obligations on the grounds of lack of fulfillment ability, but their various consumption behaviors clearly do not match their declared property status to the court. Upon the application of the applicant for execution, their name, address, and involved situation are publicly disclosed within a certain range, and the supervision and reporting of their consumption behaviors by units and individuals are used to urge them to consciously fulfill.

2、 Recognition of high consumption

High consumption, which is not regulated by current laws, is a vague concept both in theory and in practice. During implementation, the recognition of high consumption should vary from person to person and should not adopt completely identical standards. Otherwise, this measure will not only not improve the efficiency of execution, but also hinder the effective implementation of activities.

For example, the Shunchang People's Court of Fujian Province's "Restriction of Debtors' High Consumption Order" stipulates that, Before the person subjected to execution has fully fulfilled their obligations: "There shall be no hotels or star rated hotels (buildings) Consumption in high consumption places such as dance halls, nightclubs, and gyms; Do not take high-end cars, train sleepers, or airplanes, and do not use high-end communication tools such as wireless phones; Not allowed to purchase real estate or rent office buildings for office use; Not allowed to purchase high-end goods and purchase high-end and high-value daily necessities; Not allowed to spend large living expenses on family members; Not allowed to travel or vacation outside; Not allowed to make external investments (including starting a company, purchasing stocks and bonds, etc.); Only the minimum living standards and living expenses set by the government can be retained, and all others belong to the category of property being executed The author believes that the restriction order stipulates that "consumption in high consumption places such as star rated hotels (buildings), dance halls, nightclubs, gyms, etc.; travel and vacation are not allowed; and external investment (including starting a company, purchasing stocks and bonds, etc.) is reasonable and feasible. However, if "it is not allowed to take... train berths and airplanes, nor to use high-end communication tools such as wireless phones;... it is not allowed to rent office buildings", etc., which limits the consumption necessary for the person being executed to engage in normal commercial activities, it will seriously hinder the development of the social economy. Restricting high consumption by the person subjected to execution is a sanction for intentionally evading debt and maliciously squandering, but it should not restrict the person from creating wealth through labor. If, based on the nature of the business of the person subjected to execution, it is necessary to use wireless telephones or take airplanes but cannot be guaranteed due to restrictions on so-called high consumption, the person subjected to execution will find it difficult to utilize their skills, create wealth through labor, and fulfill debts to the maximum extent possible, ultimately achieving the purpose of execution.

The author believes that the person being executed is a company, and should be allowed to own the necessary property and operating expenses to maintain normal business activities, in addition to entering bankruptcy proceedings, based on the nature of the company. The purchase of property, cars, etc. should be restricted. For the company's operating income, necessary expenses should be deducted before timely repayment of debts. The employees of the company, especially the senior management, should strictly limit their business consumption to the highest standard when engaging in company business activities. If the company's operating expenses exceed the standards set by the court, it should be considered high consumption.

The person being executed is an individual and a personal property declaration system should be established. The person subjected to execution shall truthfully declare all property and consumption standards of themselves and their family members living together in accordance with the requirements of the court. After verification, the court determines the property (including income) that the person subjected to enforcement can own and the basic consumption standards, and informs the applicant for enforcement and the person subjected to enforcement. The property and consumption of the person subjected to execution should be within the scope confirmed by the court. If they exceed this range, they should be classified as high consumption and should be executed. Of course, for individuals engaged in normal business activities, they should consider the necessary consumption for that business activity, such as using wireless phones, flying, etc., and cannot be considered as high consumption.

In summary, in the absence of clear provisions in current laws, the court should be cautious when taking measures to limit the high consumption of the person subjected to enforcement, standardize their practices, avoid rulelessness, and truly play a role in urging the person subjected to enforcement to consciously fulfill their debts. On the premise that the court cannot effectively enforce, firstly, the court should inform the applicant that they have the right to apply for restrictions on the high consumption of the executed person; Secondly, the court should order the person subjected to execution to truthfully declare their property and necessary consumption expenses; Finally, the court shall notify the person subjected to execution in writing that they shall not participate in the listed high consumption activities, otherwise they shall bear corresponding criminal responsibility. The above is only the author's superficial view on this, and there are some shortcomings. We hope everyone can correct them.