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Nine Representative Cases Published by the Supreme People's Court concerning Evasion of Enforcement
[Effective]
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最高人民法院关于反规避执行的九起典型案例
[现行有效]
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【法宝引证码】
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Nine Representative Cases Published by the Supreme People's Court concerning Evasion of Enforcement
| | 最高人民法院关于反规避执行的九起典型案例
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1. Capital Normal University v. Zhongjian Property Management Company (enforcement of judgment for disputes over a heat supply contract)
[Case Summary] In Capital Normal University v. Zhongjian Property Management Company (hereinafter referred to as “Zhongjian Company”) for disputes over a heat supply contract, the People's Court of Haidian District, Beijing decided that Zhongjian Company should pay the heating fee of 2,913,715.7 yuan and interest of 270,025.17 yuan to Capital Normal University. Zhongjian Company appealed against the first-instance judgment. The No. 1 Intermediate People's Court of Beijing, as the court of second instance, dismissed the appeal and sustained the original judgment.
As Zhongjian Company did not perform its obligations determined in the effective judgment, Capital Normal University applied to the People's Court of Haidian District, Beijing for enforcement. The court of enforcement ordered Zhongjian Company to declare its assets. Zhongjian Company declared two bank accounts opened by it at Industrial and Commercial Bank of China and Industrial Bank Co., Ltd. The court of enforcement froze these two accounts, but only 9,800 yuan was available in these accounts. After further investigation, the court of enforcement found that Zhongjian Company had another account at China Construction Bank. Therefore, the court of enforcement froze all 13,289.02 yuan in this account. The court of enforcement ordered the person in charge of Zhongjian Company to explain in court why Zhongjian Company did not faithfully declare its assets, and ordered Zhongjian Company to provide the account statements and certificates of all these three bank accounts for investigation. However, the person in charge of Zhongjian Company failed to appear in court, and no account statements and certificates were provided either. The court of enforcement ordered a search of the offices of Zhongjian Company. Upon examination of the accounting books obtained in the search, the court of enforcement found that Zhongjian Company had paid a large sum of money to Zhongjian North Wing Hostel in the name of wages, medical expenses, travel expenses and so on, up to 1 million yuan in total. The court of enforcement also examined the transaction records of Zhongjian Company's account at China Construction Bank, which demonstrated that Zhongjian Company had multiple transactions of large sums even after the court of enforcement had issued a notice of enforcement. The court of enforcement investigated the business premises of Zhongjian North Wing Hostel, and found a modest business with only six employees and a monthly income of 20,000 to 30,000 yuan.
After investigation, the court of enforcement had amassed a large amount of reliable evidence which proved that Zhongjian Company did not faithfully declare its assets after receipt of the notice of enforcement and transferred a large sum of business income to the bank account of Zhongjian North Wing Hostel in order to transfer property and evade enforcement. The court of enforcement ordered detention of the person in charge of Zhongjian Company and decided to audit its accounts. As pressed by the compulsory measures taken by the court of enforcement, Zhongjian Company provided more than 1.8 million yuan to the court within three days, and reached an enforcement reconciliation agreement with the enforcement applicant, Capital Normal University. The payment by installments has been completed.
[Significance] The court of enforcement strictly enforced the assets reporting system, strengthened property investigation according to its functions, and adopted effective audit methods to investigate the assets of the judgment debtor, as a result of which this enforcement case was smoothly closed.
| | 1.首都师范大学与中建物业管理公司供用热力合同纠纷执行案
【案情摘要】首都师范大学与中建物业管理公司供用热力合同纠纷一案，北京市海淀区人民法院判决中建物业管理公司给付首都师范大学供暖费2913715.7元以及利息270025.17元。一审判决后，中建物业管理公司提起上诉。北京市第一中级人民法院二审判决驳回上诉，维持原判。
由于中建物业管理公司未履行生效判决确定的义务，首都师范大学向北京市海淀区人民法院申请执行。执行法院要求中建物业管理公司申报财产情况。中建物业管理公司申报了中国工商银行和兴业银行两个银行账户，执行法院对两个账户进行了冻结，仅扣划到9800元。执行法院进一步调查发现，中建物业管理公司在中国建设银行还开立有一个账户，执行法院遂冻结了该账上仅有的存款13289.02元。执行法院要求中建物业管理公司负责人到庭说明为何没有如实申报财产，并要求中建物业管理公司提供3个银行账号的对账单和会计凭证供调查。中建物业管理公司负责人未到庭，且未提供对账单和会计凭证。鉴于此，执行法院对中建物业管理公司的办公场所进行了搜查。通过查阅搜查获取的会计账簿，发现中建物业管理公司以工资、药费、差旅费等名义向中建北配楼招待所支付了大笔费用，累计近百万元。执行法院调取了中建物业管理公司的中国建设银行账户交易记录，显示在执行法院发出执行通知书后，中建物业管理公司仍有多笔大额资金往来。执行法院到中建北配楼招待所的经营场所进行调查，发现招待所条件十分简陋，仅有6名员工，月经营收入为20000至30000元。
经过调查，执行法院掌握了大量确凿的证据，证明中建物业管理公司在收到执行通知书后，未如实申报财产情况，其将经营收入等大笔资金转入中建北配楼招待所的银行账户，以达到转移财产，规避执行的目的。因此，执行法院对中建物业管理公司的负责人采取了拘留措施，并决定对中建物业管理公司的账目进行审计。执行法院采取强制措施后，中建物业管理公司迫于压力，3日内向法院支付了180余万元执行款，并与申请人首都师范大学达成了执行和解协议，并已分期履行完毕。
【典型意义】执行法院严格落实财产报告制度，加大依职权调查财产的力度，适当运用审计方法调查被执行人财产，使得该案得以顺利执结。
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2. Zhang Qu v. Chen Shi and Wu Yangying (enforcement of judgment for disputes over a private loan)
[Case Summary] In Zhang Qu v. Chen Shi and Wu Yangying for disputes over a private loan, the Intermediate People's Court of Fuzhou City, Fujian Province decided that Chen Shi should repay 1.88 million yuan and interest thereon to Zhang Qu and co-defendant Wu Yangying should be jointly and severally liable for repayment. Chen Shi and Wu Yangying appealed against the first-instance judgment. The Higher People's Court of Fujian Province, as the court of second instance, dismissed the appeals and sustained the original judgment.
As Chen Shi and Wu Yangying did not perform their obligations determined in the effective judgment, Zhang Qu applied to the Intermediate People's Court of Fuzhou City for enforcement. The court of enforcement granted a compulsory auction of an apartment registered to Wu Yangying located at Suite 02, F/1, Building 5, Fuzhou Xinhui Jiayuan, 163 Fufei North Road, Xindian Town, Jin'an District, Fuzhou City. The judgment debtor, Wu Yangying presented a lease on the aforesaid apartment between her and her brother to the court, according to which the rent was 950 yuan per month for a term of 15 years and the total rents should be paid in a lump sum. Wu Yangying alleged that she had rented the house to her brother before it was seized by the court and that she had received a lump sum rental payment of 170,000 yuan. After the conclusion of the lease, her brother sublet the house to a third party (a secondary lessee). However, Wu Yangying could not provide the relevant bank transfer certificate to prove that she had received the lump sum rental payment of 170,000 yuan. Wu Yangying explained that she actually borrowed the aforesaid amount from her brother for purchasing the aforesaid apartment and would repay such money with rents from this apartment as agreed on with her brother. Enforcement applicant Zhang Qu submitted a statement to the court of enforcement, claiming that the lease presented by Wu Yangying was forged by Wu Yangying and her brother as she had seen Wu Yangying personally collect rents from the sub-lessee. The enforcement personnel investigated the rental of the apartment with several lessees, and it was confirmed that the monthly rent was 3,000 yuan and collected by Wu Yangying. With sufficient evidence, the enforcement personnel arranged to talk with Wu Yangying's brother, who then admitted that after learning that the house was seized by the court, Wu Yangying sublet the apartment in his name, that the signature on the sublease contract was falsified by Wu Yangying, and that Wu Yangying collected rents directly from the sub-lessee.
The court of enforcement held that a lease of the seized property did not affect the disposal of such seized property. The court of enforcement decided to auction the seized apartment, and in the auction announcement, informed the judgment debtor of her right to raise an objection. Before the court made the decision on compulsory auction of the apartment, Wu Yangying's brother voluntarily withdrew from the tripartite contract of lease and sublease. The court of enforcement evaluated and auctioned the apartment in accordance with law. After a successful auction, the original sub-lessee maintained its tenant right, but should pay rents to the buyer of the apartment.
[Significance] The people's court strengthened property preservation measures and enforcement with the preserved property, as a result of which this enforcement case was smoothly closed.
| | 2.张曲与陈适、吴洋英民间借贷纠纷执行案
【案情摘要】张曲与陈适、吴洋英民间借贷纠纷一案，福建省福州市中级人民法院判令陈适偿还张曲188万元及利息；被告吴洋英承担连带清偿责任。一审判决后，陈适、吴洋英提起上诉。福建省高级人民法院二审判决驳回上诉，维持原判。
由于陈适、吴洋英未履行生效判决所确定的义务，张曲向福州市中级人民法院申请强制执行。执行法院决定对诉讼阶段保全查封的吴洋英名下的位于福州市晋安区新店镇福飞北路136号福州新慧嘉苑5号楼一层02号房屋进行强制拍卖。被执行人吴洋英向法院出示了一份其与弟弟签订的关于上述房屋的租赁合同，合同约定每月租金950元，租期15年，租金一次性支付。吴洋英称，她在法院查封前已经将房屋出租给弟弟，并一次收取了租金17万元，其弟弟在签订合同后，又转租给第三人（次承租人）。吴洋英不能出具金融机构的相关转账凭证，证明她一次性收取了17万元租金。对此，吴洋英辩称，她是向弟弟借钱买了房屋，约定用该房屋的租金偿还。申请人张曲向执行法院提交报告，称她曾亲眼看到吴洋英亲自向次承租人收取租金，她认为吴洋英出示的租赁合同系吴洋英姐弟串通伪造而成。执行人员向房屋前后几个承租人调查了解情况，几个承租人证实，每个月租金均由吴洋英收取，租金为每月3000元。执行人员在掌握充分证据后，约谈了吴洋英的弟弟。吴洋英弟弟承认，吴洋英知道房屋被法院查封后，以他的名义将房屋转租给次承租人，转租合同上的签名系吴洋英所签，吴洋英直接向次承租人收取租金。
执行法院认为，查封财产上的租赁关系不影响对查封财产的处置。执行法院决定对查封房屋进行拍卖，并在拍卖公告中告知被执行人有权提出异议。吴洋英没有在规定期限内提出异议。吴洋英的弟弟在法院决定强制拍卖房屋之前，主动退出了租赁、转租的三方租赁合同关系。执行法院依法对房屋进行了评估拍卖。拍卖成交后，原次承租人仍享有租赁权，改向买受人交付租金。
【典型意义】人民法院强化财产保全措施，加大对保全财产的执行力度，使得该案得以顺利执行。
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3. Shanghai Jindi Petrochemical Co. Ltd. v. Shanghai Liyu Trading Co. Ltd. (enforcement of judgment for disputes over compensation for damages)
[Case Summary] In Shanghai Jindi Petrochemical Co. Ltd. (hereinafter referred to as “Jindi Company”) v. Shanghai Liyu Trading Co. Ltd. (hereinafter referred to as “Liyu Company”) for disputes over compensation for damages, the Higher People's Court of Shanghai rendered a consent judgment, ordering Liyu Company to pay 8.8 million yuan to Jindi Company and Yang Liping to be jointly and severally liable for the payment within the extent of 7.4 million yuan.
Liyu Company and Yang Liping did not make the payment determined in the consent judgment. Jindi Company applied to the No. 1 Intermediate People's Court of Shanghai, which was the court of first instance, for enforcement. The court of enforcement found that: Liyu Company, as involved in a criminal case, was held insolvent by the relevant authority and there were four apartments registered to Yang Liping but two days before Jindi Company filed the lawsuit, Yang Liping and Gong (given name withheld, son of Yang Liping) signed three Contracts for the Purchase and Sale of Real Estate in Shanghai to “sell” three of the four apartments to Gong, and later executed the real estate transfer formalities.
After the court of enforcement opened this enforcement case, Jindi Company brought an action in the People's Court of Minhang District, Shanghai for revocation of the contracts for the purchase and sale of real estate between Yang Liping and Gong. The No. 1 Intermediate People's Court of Shanghai then ruled to suspend enforcement according to law. At trial, the People's Court of Minhang District, Shanghai found that: Yang Liping was a shareholder of Liyu Company, and when she was questioned by the public security organ, she clearly answered that Gong did not actually pay for the purchased apartments; Gong was only 20 when he purchased the apartments, and as he was studying overseas at the expense of his parents, he was incapable of making payment for the purchased apartments. In the opinion of the court, having foreseen her possible liability, Yang Liping transferred the titles to the aforesaid apartments to Gong for free, which indicated that she had the desire to illegally evade her debts and her acts actually weakened her ability to repay debts, damaging the creditor's interests. Therefore, the People's Court of Minxing District, Shanghai decided to revoke the three Contracts for the Purchase and Sale of Real Estate in Shanghai. Afterwards, Jindi Company applied to resume enforcement and requested disposition of the real estate that had been reinstated to Yang Liping. After the court of enforcement resumed enforcement, Jindi Company and Yang Liping reached a reconciliation agreement, according to which Yang Liping assumed her liability by transferring one of her apartments to Jindi Company and compensating Jindi Company in an amount of 160,000 yuan and Jindi Company withdrew its other claims. The enforcement was concluded.
[Significance] The judgment debtor transferred her property for free, causing damage to the enforcement applicant, and the enforcement applicant filed a lawsuit for contract revocation with the people's court having jurisdiction under the Contract Law to effectively prevent evasion of enforcement.
| | 3.上海金地石化有限公司与上海立宇贸易有限公司侵权损害赔偿纠纷执行案
【案情摘要】上海金地石化有限公司（以下简称金地公司）与上海立宇贸易有限公司（以下简称立宇公司）侵权损害赔偿纠纷一案，上海市高级人民法院作出民事调解书，确认立宇公司支付金地公司880万元；杨丽萍在740万元范围内对立宇公司的支付义务承担连带责任。
立宇公司与杨丽萍未履行调解书约定的付款义务，金地公司向该案一审法院上海市第一中级人民法院申请强制执行。执行法院查明，立宇公司因涉嫌刑事案件，经相关机构鉴定，已无偿债能力；杨丽萍名下原有四套房产，但在原告金地公司提起诉讼前两天，杨丽萍与龚某（杨丽萍之子）签订了3份《上海市房地产买卖合同》，将其名下四套房产中的三套“售与”龚某，随后办理了房产过户手续。
执行立案后，金地公司向上海市闵行区人民法院提起撤销杨丽萍与龚某之间的房地产买卖合同的诉讼，上海市第一中级人民法院遂依法裁定该案中止执行。上海市闵行区人民法院在审理中查明，杨丽萍系立宇公司股东，其在接受公安机关讯问时，明确回答龚某实际未支付房款；龚某在受让房产时年仅二十岁，且一直在国外读书，生活来源需父母供给，并不具备支付房款的能力。法院认为，杨丽萍预见到可能承担责任后，将其房屋产权无偿过户至龚某名下，主观上具有逃避债务的恶意，且事实上致使其清偿债务能力减弱，损害了债权人的利益。因此，判决撤销了杨丽萍、龚某签订的3份《上海市房地产买卖合同》。随后，金地公司申请恢复执行，要求处理已恢复至杨丽萍名下的房产。执行法院恢复执行后，金地公司与杨丽萍达成和解协议，杨丽萍将其名下的一套房产过户至金地公司名下，并补偿金地公司16万元，金地公司放弃其他债权主张。案件执行终结。
【典型意义】被执行人无偿转让财产，对申请执行人造成损害，申请执行人依照《合同法》相关规定向有管辖权的人民法院提起撤销权诉讼，有效地反制规避执行行为。
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4. Hubei Hongxin Construction Engineering Co. Ltd. and Tuanfeng County Fanggaoping Construction Company v. Yiyuan Keda Magnetic Materials Co. Ltd. and Huanggang Zhongji Automobile Sales Co. Ltd. (enforcement of judgment for disputes over guaranteed project payments)
．．．．．． | | 4.湖北宏鑫建设工程有限公司、团风县方高坪建筑公司与亿源科大磁性材料有限公司及黄冈中机汽车销售有限公司工程款担保纠纷执行案
【案情摘要】湖北宏鑫建设工程有限公司（下称宏鑫公司）、团风县方高坪建筑公司（下称方高坪建筑公司）与亿源科大磁性材料有限公司（下称亿源公司）、黄冈中机汽车销售有限公司（下称中机公司）工程款担保纠纷执行一案，湖北省黄冈市中级人民法院于2008年3月3日立案执行。亿源公司以其法定代表人丁某为市政协委员的特殊身份及无还款能力为由拒不履行生效判决确定的义务。经执行法院调查，亿源公司在人民银行登记备案的几个银行账户均只有几元到几百元不等的存款，公司不动产已设定抵押，无其他可供执行财产；中机公司早已歇业，无可供执行财产。2008年5月19日，申请执行人向执行法院提供线索，亿源公司有75万元货款从深圳汇回。执行人员随即查询亿源公司在人民银行登记备案的几个银行账户，未发现该笔款项。后执行人员查询到亿源公司于工商银行开立的一账户（该账户未在人民银行备案），查到该笔汇款，但款项已被转走。经调查，该款汇入当天即转入亿源公司会计邓某个人账户。根据上述情况，执行法院认为亿源公司有隐匿资产、规避执行的嫌疑，立即冻结了邓某个人账户上的65万元存款。邓某提出执行异议，称被冻结账户上的款项系亿源公司偿还他的借款，系其个人财产。执行法院依法对异议进行审查，经核对亿源公司和邓某账户，发现自2007年11月至2008年5月，亿源公司账户所有大额资金（共22笔，156.5万元）均于到账当日或次日转入邓某个人账户，邓某个人账户除由公司账户转入的22笔款项外，无其他存款记录。审查过程中，邓某出示一份盖有亿源公司印章、金额为86万元的借条。经对亿源公司会计账目进行调查，没有该笔借款记录。执行法院查明，邓某50多岁，下岗职工，配偶无职业，家庭生活拮据。据此推断邓某与亿源公司的借贷关系不合常理。执行法院要求邓某说明资金来源和给付方式，并告知虚假陈述的法律责任。邓某含糊搪塞，主动要求收回借据。执行法院遂依审查中查明的情况，认定亿源公司为邓某账户款项的实际所有人，依法裁定驳回邓某的异议。邓某签收裁定后，向执行法院提起异议之诉，又于开庭前撤诉。
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