If the client s property is preserved, can he still sell it? Does it have legal effect?

In the Contract Law, there is an interpretation of property preservation, that is, "the creditor has the right to apply for preservation of the debtor's property, in order to prevent its property from losing its original value due to some improper use or mortgage of the debtor, affecting the interests of the creditor", which is a preventive measure, so the preserved car can no longer be sold to others, and the buyer can require the seller to compensate for the loss if it is in good faith;

Where assets have already been sealed or frozen, they must not be sealed or frozen repeatedly.

This is explained at two points in time:

1. If the defendant sold the vehicle to a third party before it was seized and preserved, and the vehicle was actually delivered to the third party, the third party has the right to raise an objection to the seizure and preservation and request the court to unseal it. If the vehicle is not actually delivered to a third party, then the sales contract is established but has not yet taken effect, and it cannot resist the seizure and preservation, and the court cannot still be requested to unseal it.

2. If the sale is made to a third party after the seizure and preservation, the sales contract between the defendant and the third party cannot oppose the seizure and preservation, and the third party may require the defendant to return the purchase price.

3. If it is to avoid the execution of the seizure, the time of signing the sales agreement can be mentioned before the seizure, and the vehicle can be handed over to the buyer at the same time.

If, in the course of enforcement, in order to evade the court's enforcement activities, the person subject to enforcement illegally disposes of property for which the people's court has taken preservation measures in accordance with law, making it difficult to enforce the judgment or ruling, it shall be found to be a crime of refusing to enforce the judgment or ruling, and the act of illegally disposing of property for which the judicial organs have taken preservation measures shall not be separately evaluated and punished separately.

Legal analysis

There are many similarities between the crime of refusing to enforce a judgment or ruling and the crime of illegally disposing of sealed, seized or property, but there are differences between the two.

The crime of illegally disposing of sealed, seized, or frozen property is objectively manifested as concealing, transferring, selling, or intentionally destroying property that has been sealed, seized, or frozen by judicial organs, where the circumstances are serious. The objective aspect of the crime of refusing to enforce a judgment or ruling is that the court has the ability to enforce the judgment or ruling, and the circumstances are serious. According to the provisions of China's relevant judicial interpretations on situations where the circumstances are serious, a total of "12 types" of situations with serious circumstances are listed.

This includes the person subject to enforcement concealing, transferring, or intentionally destroying property, or transferring property without compensation, or transferring property at an obviously unreasonable low price, making it impossible to enforce the judgment or ruling; and where the guarantor or the person subject to enforcement conceals, transfers, intentionally destroys, or transfers property for which security has been provided to the people's court, making it impossible to enforce the judgment or ruling.

Comparing the objective behavior of the two crimes, it is not difficult to see that there is a certain relationship between the inclusion and inclusion of the two crimes in the objective behavior, but it is obviously not enough to judge which crime constitutes only by the objective behavior, and the subjective purpose should be considered at this time. The subjective aspect of the crime of refusing to enforce a judgment or ruling is manifested as intent, that is, the perpetrator clearly knows that it is a judgment or ruling of the people's court that has already taken effect, but intentionally adopts acts such as concealing or transferring property, so as to achieve the purpose of refusing to enforce. Although the subjective aspect of the crime of illegally disposing of sealed, seized, or frozen property is also intentional, the intention is relative to the illegal disposition of property such as concealing or transferring property, and has no specific purpose.

In this case, the perpetrator's purpose in transferring the property for which the court had taken preservation measures in accordance with law was to be unwilling to enforce the effective judgment of the court, which obviously met the constitutive elements of the crime of refusing to enforce the judgment or ruling.

Legal basis

Paragraph 3 of Article 111 of the Civil Procedure Law of the People's Republic of China stipulates that where litigation participants or other persons conceal, transfer, sell, or damage property that has been sealed or seized, or property that has been inventoried and ordered to be safeguarded, or transfer property that has been frozen, the people's court may impose a fine or detention on the basis of the severity of the circumstances; where a crime is constituted, criminal responsibility is pursued in accordance with law.

Article 314 of the Criminal Law of the People's Republic of China stipulates that "anyone who conceals, transfers, sells, or intentionally destroys property that has been sealed, seized, or frozen by a judicial organ, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention, or a fine." ”

The court may not sell property for which preservation measures have not been taken.

Article 486 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates that the people's court shall not dispose of the property subject to enforcement without sealing, seizing or freezing it.