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Article 92: People's courts may make a ruling on property preservation on the basis of the other party's application in cases where enforcement of a judgment may be impossible or difficult to enforce due to the conduct of one of the parties or other reasons; Where the parties do not submit an application, the people's court may also rule to employ property preservation measures when necessary. The people's court may order the applicant to provide a guarantee when employing property preservation measures; If the applicant does not provide a guarantee, the application shall be rejected. After the people's court accepts the application, it must make a ruling within 48 hours if the situation is urgent; Where a ruling is made to employ property preservation measures, enforcement shall begin immediately.
Article 93: Where due to the urgency of the situation, an interested party does not immediately apply for property preservation that would cause irreparable harm to their lawful rights and interests, they may apply to the people's court to employ property preservation measures before initiating litigation. The applicant shall provide a guarantee, and if the applicant does not provide a guarantee, the application shall be rejected. After the people's court accepts the application, it must make a ruling within 48 hours; Where a ruling is made to employ property preservation measures, enforcement shall begin immediately.
Where the applicant does not initiate litigation within 15 days after the people's court takes preservation measures, the people's court shall lift the property preservation. Article 94: Property preservation is limited to the scope of the request, or property related to the case. Property preservation is to employ sealing, seizure, freezing, or other methods prescribed by law.
After the people's court freezes assets, it shall immediately notify the person whose assets have been frozen.
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The judgment of the first instance has already been made, and during the appeal period, an application for property preservation may be filed with the first-instance trial court.
Specific legal basis: Article 103 of the Civil Procedure Opinions stipulates that in a case where a party appeals against a first-instance judgment, if the party has transferred, concealed, sold, or damaged property before the second-instance people's court receives the case sent by Zheng Shouhe, and it is necessary to take property preservation measures, the first-instance people's court shall take measures on the basis of the party's application or ex officio. A ruling on property preservation drafted by the first-instance trial court shall be promptly reported to the second-instance trial court.
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Legal Analysis: Yes. According to the provisions, the conditions for the deferral of pre-litigation property preservation are:
1. The application for pre-litigation property preservation must have the content of payment, that is, the applicant's claim for the case filed in the future must have the content of property payment.
2. The situation is urgent, and the corresponding preservation measures are not taken immediately, which may cause irreparable losses to the legitimate rights and interests of the applicant.
4. The applicant for pre-litigation property preservation must provide a guarantee. If the applicant does not provide a guarantee, the people's court shall reject the applicant's application for property preservation submitted before filing a lawsuit.
Legal basis: "Civil Procedure Law of the People's Republic of China" Article 164: Where a party is dissatisfied with the first-instance judgment of a local people's court, it has the right to appeal to the people's court at the level above within 15 days of the date on which the judgment is served. Where a party is dissatisfied with a local people's court's first-instance ruling, it has the right to appeal to the people's court at the level above within 10 days of the date on which the ruling is served.
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Pre-litigation property preservation may be applied to the location of the property to be preserved, the domicile of the respondent, or the People's Law Sun Yin Yuan that has jurisdiction over the case. At the time of making such a request, it must be proved that there is a real risk of damage to the property. Once the request for preservation has been processed, the person making the request may be required to provide security.
1. Who should apply for pre-litigation property preservation?
1. The former property preservation may be applied to the people's court with the place where the property to be preserved, the place where the respondent is domiciled, or the people's court with jurisdiction over the case before filing a lawsuit or applying for arbitration. If the applicant should provide a guarantee but fails to provide a guarantee, a ruling shall be made to reject the application.
2. The so-called pre-litigation property preservation, that is, pre-litigation preservation, refers to a property preservation measure taken by the people's court if the interested party does not immediately apply for property preservation due to the urgency of the situation, which will cause irreparable damage to its legitimate rights and interests. Civil disputes related to pre-litigation property preservation must have a payment content. If the civil legal relationship in dispute is not due to a dispute over property interests, but a dispute over personal reputation, and there is no content of payment, the court cannot take pre-litigation preservation measures.
Pre-litigation property preservation is an emergency preservation measure aimed at protecting interested parties from irreparable losses.
2. Scope of property preservation
The function of property preservation is to prevent the parties from disposing of the disputed subject matter before the people's court makes a judgment or from disposing of the property used for enforcement after the judgment takes effect, so as to prevent the expansion of the dispute and ensure the enforcement of the effective judgment. However, if the people's court improperly adopts property preservation measures, it will cause damage to the property rights and personal rights of the person in charge. For example, if the bank deposits of the parties are frozen in their entirety, beyond the scope of the applicant's request, the business activities of the parties to the other party will be restricted.
Article 102 of the Civil Procedure Law stipulates that: "Property preservation shall be limited to the scope of the request or property related to the case. "The relevant judicial interpretations of the Supreme People's Court also hold that when a people's court adopts property preservation measures, the scope of preservation shall be limited to the property disputed by the parties or the property of the defendant, and property preservation measures shall not be taken against the property of persons not involved in the case.
Preservation measures must generally not be taken against property related to the case that is acquired in good faith by persons not involved in the case. Therefore, the scope of property preservation cannot exceed the scope requested by the applicant, or the value of the disputed property. The purpose of property preservation can only be achieved within the scope of the request of the parties or interested parties, so that the rights and interests of the applicant can be realized, and undue losses to the respondent can be avoided.
For civil disputes involving property disputes, the parties to the dispute may choose to submit a complaint to the court to protect their rights and interests, and if it is found that the property is in real danger of being damaged during the collection of evidence of the existence of the dispute before filing a lawsuit, then a request for pre-litigation property preservation can be filed with the court.
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Yes, property preservation after the first-instance judgment. Property preservation: refers to protective measures to protect the legitimate rights and interests of stakeholders or parties from losses.
It refers to the protective measures taken against the relevant property on the basis of the application of the interested party or the party or the decision of the people's court when the relevant property may be transferred or destroyed, which may cause damage to the rights and interests of interested parties or may make it difficult to enforce the court's judgment in the future. One. The following conditions shall be met for property preservation:
1. The situation must be urgent, and failure to take property preservation will cause irreparable damage to the applicant's legitimate property rights and interests; 2. The interested party must submit an application to the people's court where the property is located, and the court shall take the initiative to take property preservation measures without its authority; 3 The applicant must provide a guarantee, otherwise the court will dismiss the application. 4. The case must have payment content, which is a lawsuit for payment; 5 It must be prepared by one of the parties for an act that may make it difficult to enforce the judgment; 6 The application must be made during the course of the proceedings. When necessary, the court may also rule ex officio to adopt measures to preserve litigation assets; 7 The applicant provides a guarantee.
This is not the case if the court does not order the provision of security. Two. Procedures for property preservation:
1 Application. For pre-litigation property preservation, the interested party shall submit an application to the court to which the lawsuit is filed before filing a lawsuit. Where the people's court accepts the application and rules for preservation, the ruling for preservation shall be lifted if the applicant does not file a lawsuit within 15 days.
Litigation property preservation may be applied for at the same time as the lawsuit is filed, or it can be applied for after the lawsuit is filed. 2 Warranties. The people's court may order the applicant to provide a guarantee, and if the applicant does not provide a guarantee, the application shall be rejected.
3 Ruling. Where a party applies for pre-litigation preservation, the people's court must make a ruling within 48 hours of accepting the application, and once the ruling is made, it will take legal effect, and the party may not appeal if it is not satisfied, but may apply for reconsideration once, and the enforcement of the ruling shall not be stopped during the reconsideration period. 4 Lift.
The effect of the ruling on property preservation shall end at the time of enforcement of the effective legal document, and if it is necessary to raise the floor of the preservation measures in the course of litigation, the court shall promptly make a ruling to lift the preservation ruling, and if the reasons and conditions for property preservation have changed, and preservation is not necessary; The respondent provides corresponding guarantees; The applicant for pre-litigation preservation has not filed a lawsuit within 15 days, etc. 5 Indemnification. If the party makes a mistake in applying for property preservation, and the respondent suffers losses as a result of the property preservation, the applicant shall be liable for compensation.
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Property preservation in civil litigation is divided into pre-litigation preservation and in-litigation preservation. Among them, the applicant for pre-litigation property preservation, i.e., the interested party, must file a lawsuit or arbitration within 30 days after the people's court takes the preservation measures, so that the dispute related to the property to be preserved can be resolved through trial. If the interested party fails to file a lawsuit with the people's court or apply to the arbitration institution for arbitration within 30 days, the people's court shall lift the property preservation measures.
Article 100 of the Civil Procedure Law: In cases where it is difficult to enforce a judgment or causes other damage to a party due to the conduct of one of the parties or other reasons, the people's court may, upon the application of the other party, rule to preserve its property, order it to perform certain acts, or prohibit it from doing certain acts; Where the parties do not submit an application, the people's court may also rule to adopt preservation measures when necessary. The people's court may order the applicant to provide a guarantee when taking preservation measures, and if the applicant does not provide a guarantee, rule to reject the application. After the people's court accepts the application, if the situation is urgent, it must make a ruling within 48 hours; Where a ruling is made to employ preservation measures, enforcement shall begin immediately.
Article 101:Where an interested party's lawful rights and interests will be irreparably harmed if they do not immediately apply for preservation due to an urgent situation, they may apply to the people's court for preservation measures at the location of the property subject to preservation, the domicile of the respondent, or the people's court with jurisdiction over the case before initiating a lawsuit or applying for arbitration. The applicant shall provide a guarantee, and if the applicant does not provide a guarantee, a ruling shall be made to reject the application. After the people's court accepts the application, it must make a ruling within 48 hours; Where a ruling is made to employ preservation measures, enforcement shall begin immediately.
Where the applicant does not initiate litigation or apply for arbitration in accordance with law within 30 days after the people's court adopts the preservation measures, the people's court shall lift the preservation.
Article 156 of the Supreme People's Court's Interpretation on the Application of the "Civil Procedure Law of the People's Republic of China" People's courts employing methods and measures for property preservation are to be handled in accordance with the relevant provisions of the enforcement procedures. Article 487:The period for a people's court to freeze a person's bank deposits must not exceed one year, the period for sealing or seizing movable property must not exceed two years, and the period for sealing immovable property or freezing other property rights must not exceed three years. Where the person applying for enforcement applies for an extension of the time limit, the people's court shall complete the formalities for continuing the sealing, seizure, or freezing before the completion of the period for sealing, seizure, or freezing, and the period for renewal must not exceed the period provided for in the preceding paragraph.
The people's courts may also handle the formalities for continued sealing, seizure, or freezing in accordance with their authority.
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