The supreme people's court, the supreme people's procuratorate, the national development and reform commission and other 19 ministries and commissions in July 7, 2010 to assist in the implementation of the "on the establishment and improvement of the implementation of the joint mechanism of a number of issues of opinion", seven years, the implementation of the difficult problem of some improvement, but still failed to get a fundamental solution to the implementation of the difficult problem of difficult to cure.

The author as a lawyer, handled a non-performing assets execution case, is occurred in 1997 in a city in western Guangdong Province due to the financial crisis and cast a difficult to enforce the case, until March this year, the whole twenty years, only to have the good fortune to successfully close the case, the client finally obtained the full amount of the principal plus 30% of the interest. The case is as follows:

Guangdong an industrial trading company (hereinafter referred to as industry and trade company) v. x city north source industrial company (hereinafter referred to as the north source company) a discounted loan dispute, the court by the first and second instance ruling came into effect, but due to the financial crisis at the time, the north source company closed down and fled the debt, there are a number of creditors are litigating and searching for their property, the author in the agent of the lawsuit in the two instances, and then continue to accept the parties entrusted to act as an implementation without hesitation! Stage agent to apply to the court for execution, actively looking for property for the client North source company, and has applied to the court seized the executor of the North source company's name of a small island in the new district of a real estate and bank deposits of 2 million yuan. In the implementation of the cash was told that the new island property rights have long been transferred to the name of others and can not be implemented, the bank deposit is the computer at the time the number of wrong, only more than 100 yuan.

The implementation of no hope, trade and industry companies will be included in the debt "bad debt". But the lawyer did not give up, actively looking for informants on behalf of its, and finally found the north source company to the urban and rural credit cooperatives borrowing contract, which has the name of the north source of three land use rights as a pledge, as a basis for applying to the court for the seizure and auction of debt repayment. 2004 when the appraisal of the price of only 820,000 yuan. But this is the three adjacent area of more than 50,000 square meters of land use rights, property rights clear, four to the clear, the government issued a certificate of state-owned land use rights, and no outsider objections, but in the court commissioned by the local land trading center listed auction, was resisted by layers, because of the North source of the company is the local government-run enterprises, land and resources departments from the obstruction.

After that, after more than ten years of unremitting application for renewal of the seal and countless times up to the court, the procuratorate to apply for the implementation and supervision of the implementation of the elevation, still failed to work, only to promote the court time and time again to assess and adjudicate the auction only. Until last year, there were a total of seven valuation and three times the court issued a ruling on the auction, but all on various pretexts and failed to realize the auction to repay the debt. Three land use right area of 54,868.7 square meters, the local land and resources bureau redefined as 29,435.5 square meters, but the appraisal price has soared, from more than 820,000 yuan in 2004 to more than 28.8 million yuan in 2015. In addition to the natural growth of land prices, but also because the land is the future transportation hub and the new business district, the planning department also changed the land from "industrial land" to "commercial and residential". The more the price of the land increased, the more difficult it was to carry out the auction, the more reluctant the government departments were to give up, during which time the local government demanded a notice of recovery in the name of "idle land", and the court required us to stop complaining, appealing and waiting for the government to release the land premium, which was not realized after waiting for a few more years.

In this case, we had to write to the High Court again, and finally got the attention of the Executive Board of the High Court. At the same time, it coincided with the promulgation of the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Legal Supervision of Civil Enforcement Activities on December 19, 2016, which stipulates in Article 4, Paragraph 2: "When the higher-level people's procuratorate deems it necessary, it may handle civil enforcement supervision cases under the jurisdiction of the people's procuratorate of the lower level," and the provisions of Article 4, Paragraph 2 of the Provisions. We applied to the Provincial People's Procuratorate for supervision on the grounds that "the case had property but was not enforced for more than ten years, which was a locally protected negative enforcement". Provincial high court executive board met with us, while this, the lawyer proposed "by the local government to fund the acquisition of our claims, or auction one of the land use rights" of the "two options" program.

In March of this year, after the local lead, finally found a willing buyer to buy our claims, after the two sides negotiation, signed the "single claim transfer", agreed to the principal plus 30% interest on the consideration to be transferred to our claims and the corresponding rights, subordinate rights and subsidiary interests generated by all the proceeds, including the right to the first seal. So far, our client's twenty years ago claims have been fully realized, and achieved satisfactory results.

After the completion of the case, I have a deep understanding of the "implementation of the difficult and its crack".

 

First, the implementation of the difficult, difficult in the "man-made".

On the implementation of the difficult problem, many experts and scholars first attributed to the law is not perfect, or only the principle of provisions and legislation lagging behind, so far there is no "law of compulsory execution" and so on. But the author believes that "people" is more important than the law, legislation and law enforcement rely on "people and for", the law is made by people and implemented by people, people play a key role. The implementation of civil cases, the will of the judge is particularly important, in this case, three real estate in full compliance with the existing provisions of the implementation, is available for execution of property, but three times the assessment, auction and failed to cash; clearly three land use rights certificate clearly recorded four and the exact area, but by the land department and the executor of the land to re-designate the boundaries of the merger of one and change the area of 29,435.5 square meters. The court also issued a document to the city's Land and Resources Bureau on December 16, 2014, requesting the Bureau to measure the area of the three pieces of land within ten days and dispose of them according to the law after the deadline. However, the Bureau of Land and Resources has been ignored, the Executive Board also did nothing, the court's authority is greatly impaired.

In the case of property available for execution, the court to execute how much, how much distribution, the implementation of the length of time, largely determined by the executive. And because of the implementation of the right to concentrate in the executive a person, but also easy to arbitrary, can be executed without execution, or the formation of backlog, but also due to the implementation of improper and make a case out of a number of objections to the case.

Second, the implementation of difficult, difficult in the local protectionism

In this case, because the executor is the local government enterprises, for the creditor's foreign implementation, local departments to a variety of ways to block the implementation of the first is a "small island new area" of the "was transferred", followed by "look at the wrong Deposit", then "land idle", are local protectionism at work, and the court accepts the local leadership, funds allocated by the local financial and, therefore, the implementation of the work is difficult to get rid of local and departmental interference, and the existence of the regional economy determines the local economy, law enforcement is directly related to its interests. Since the people, money and materials are originated from the local, local protection interests are inevitable, the executive judge had said bluntly: "because our salary from the financial bureau to allocate", has been a word of God. But this has caused our party more than a decade of debt collection costs continue to accumulate, debt collection travel expenses are strained, the enterprise has been on the verge of bankruptcy, this "three public" principle and the credibility of the judiciary has been impossible to talk about.

Third, the implementation of the difficult, difficult in the absence of property clues

The supreme people's court on civil enforcement, there are four words: "the executor is difficult to find, the execution of property is difficult to find, to assist in the implementation of the executor is difficult to find, should be difficult to move the implementation of property," which indicates that the supreme court of the property clues as the implementation of one of the reasons for the difficulty. Many effective judgment is difficult to implement, the key is to fail to obtain property clues, in the first and second trial process, the party who is expected to lose the case will try to hide, transfer of property and avoid the judgment execution. The reason why this case can all realize the claim, is to find the only remaining property, and has been insisting on the seizure does not relax.

The purpose of the litigation is to request the other party to perform certain obligations, to obtain the entity's rights, after a difficult litigation to come to the effective judgment determined by the rights, whether from the implementation of the realization of a very critical also depends on the executor has no property available for execution.

The implementation of the procedure is the last line of defense of the last link of social justice, the implementation of the difficult problem at the same time seriously plagued by the people's court has become a contemporary "big problem".

We summarize the experience of cracking the implementation of difficult, mainly:

 

1, the precious persistence

True as the supreme court of the "should be executed property is difficult to move", this case for more than ten years is difficult to implement the "difficult to move property", is the need to have full perseverance and a high degree of responsibility of the agent. Some cases applicants often fail to close the case of long-term misunderstanding of the lawyer and "midway to change", this is not good, only more time is wasted. The lawyer should communicate with the client, and actively find ways to promote the case as soon as possible. Although the "more than six months" can apply to a higher court for the implementation, but the judicial practice is very difficult to do. For a long time the case must have patience, but also adhere to the expiration of the subject matter of the application for renewal of the court, so as not to lose the right to the first seal. I have seen the first seal right to be replaced by the second round of sealer.

2, timely use of laws and regulations

The main legal basis of the current civil enforcement cases is the "People's Republic of China Civil Procedure Law" Chapter 19 to Chapter 22 and its "Interpretation" Article 462 to Article 621, other often directly quoted from the Supreme Court of Judicial Interpretation and:

Opinions on Several Issues on the Application of the Civil Procedure Law, Provisions on Several Issues on the Enforcement Work of the People's Courts (for Trial Implementation), Interpretation on Several Issues on the Enforcement Procedures for the Application of the Civil Procedure Law, Provisions on the People's Courts on the Seizure, Detention and Freezing of Properties in the Civil Execution, Provisions on the People's Courts on the Auctioning and Realization of Properties in the Civil Execution and Provisions on the People's Court on the Commissioning of the Appraisal of the People's Courts, Auction and Realization, Several Provisions on the Work of People's Courts in Commissioning Appraisals and Auctions, Several Provisions on Restricting High Consumption of Executed Persons, Several Provisions on Strengthening and Improving the Work of Commissioning Execution, and Several Provisions on Several Issues Concerning Commissioning Execution.

Last year did not, the supreme people's court, the supreme people's procuratorate "on the civil implementation activities of legal supervision of a number of issues of the provisions" promulgated, we immediately to the provincial procuratorate charge, formed a synergy. Make the ice easy to melt. Therefore, the timely use of laws and regulations will receive unexpected results.

3, the establishment of an effective implementation of the deterrent linkage mechanism

The so-called implementation deterrent mechanism, is "the court under the leadership of the party and the close cooperation of all sectors of society, leading to illegally blocking the implementation of legal instruments in force to honor the execution of cases executed or outsiders in accordance with the implementation of restrictive or sanctioning enforcement measures, thereby forming a psychological deterrent to prompt the fulfillment of their obligations, effective fulfillment of the content of the legal instruments in force, which together to create a good atmosphere of conscientious fulfillment of obligations determined by the legal instruments in force. A system of legal and policy arrangements to create a favorable atmosphere for conscientiously fulfilling the obligations determined in the legal instruments in force"

To achieve this system arrangement, "the iron must be hard". The court must first dare to resist interference from all sides, including the government and leaders of local jurisdictions.

And the Central Commission for Discipline Inspection and other 19 ministries and commissions of the "on the establishment and improvement of the implementation of a number of issues on the implementation of the joint mechanism of the opinions" for cracking the implementation of the difficult to provide a good environmental conditions, the implementation of the establishment and improvement of the joint deterrent mechanism is a systematic social engineering, but also need to coordinate the action of various departments, each other and the implementation of the implementation of the coordinated action.

4, make full use of big data

The current network development has been looking for property clues for the executor, prompting the "old man" automatically fulfill their obligations to provide a powerful weapon. With the help of big data to further deepen the theoretical discussion on the solution of "difficult to execute", through the information technology construction and the court's implementation of the work of the continued deep integration will provide new technical means to solve the "difficult to execute". We have reason to believe that "difficult to implement" is solved by the feasibility, and with the effective use of network information should become the future implementation of the case more and more dependent on the tools and trends.

According to statistics: as of December 31, 2015, the national court used the network execution checking and control system to make property inquiries for 1,134,600 execution cases, involving 1,307,000 executors, with a cumulative total of 1,913,262,000,000 yuan of bank deposits inquired about; 63,700 cases of online freezing after inquiring about the deposits, involving 66,100 executors, with a frozen amount of 36,317,000 yuan. 36.317 billion yuan, and 3,893 cases of online deduction after freezing, involving 3,965 executors, with a deduction amount of 309 million yuan". This provides strong data support for solving the "implementation difficulties".

Visible, the use of network big data has shown power, the use of big data to limit the "old man" of the legal representative of the enterprise and the person in charge of the consumption of the direct and out of the country, etc., can prompt the "old man" does not have the luck to automatically fulfill the debt.

Recently, shandong high court to zibo city zhangdian district as a pilot, the first in the country to explore the "old man" communication restrictions, is also a good way.

5, reward reward informant system legalization

As mentioned earlier, the case of the entity judgment, the implementation of the success or failure of the key first decided to be able to obtain property clues. In the parties and the court failed to grasp the property clues to the executor, encourage the applicant to put forward a reward announcement. In accordance with the property clues provided by the informant to obtain the implementation of the case of effective compensation, to be timely to reward, so that will form a good culture in the community, but also to the executor to play a certain deterrent effect. The author believes that the amount of bounty informant can be controlled in the amount of the property to obtain the implementation of about 20%. At present, the local courts in Guizhou Province, most of the reward reward informants according to this ratio. The legitimacy of reward should also be clear in the legislation.

6, the transfer of claims is difficult to implement the case of effective solutions

In some cases for various reasons difficult to direct implementation, through more than one subject matter of the packaging transfer suitable transferee is also a solution to the implementation of the difficult way. In the party itself is difficult to find the assignee to undertake the debt situation, or by the court recommended a single debt buyer, are very good way, the court on the case and suitable candidates have a full understanding, in order to solve the problem of difficult to implement, this can not avoid for the party recommended.

Judicial practice has proved the feasibility of this point.

7, Strengthening comprehensive media disclosure and publicizing typical cases

The sunshine of execution cases is a "disinfectant" to eliminate corruption and negative execution. Through the list of "blacklist of bad faith", prompting the "old scoundrel" have nothing to hide, make full use of all kinds of news media, increase the implementation of publicity efforts, a comprehensive display of the implementation of the work of the effectiveness of the commendation of excellence and public exposure to circumvent the implementation of the implementation of the obstruction of the implementation of the implementation of the resistance to the implementation of positive and negative Typical cases, will play a positive role in society; to create "legal authority can not be flouted, the effective decision must be fulfilled," the integrity of the rule of law atmosphere, can further breakthroughs in order to achieve the "basic solution to the implementation of the difficult" problem.

8, "execution to break" is the ultimate way to eliminate the implementation of the case of insolvency

In order to solve the problem of implementation difficulties, the supreme people's court in accordance with the "on the application of the civil procedure law of the People's Republic of China" the interpretation of the provisions of article 513, on January 20, 2017 issued "on the implementation of the case transferred to the bankruptcy review of a number of issues guiding opinions", from the system to open up the implementation of the case can not be transferred into the bankruptcy proceedings through the court of law of the implementation of the bankruptcy of the convergence of channel, conducive to the implementation of the impasse There is a function of liquidation of market entities. A large number of cases in which the executor is insolvent will end.

Article 515 of the Interpretation on the Application of the Civil Procedure Law of the People's Republic of China stipulates that "the people's court of the domicile of the executed person decides to accept the bankruptcy case ......, the execution court shall decide to end the execution of the executed person." With the implementation of the "execution to bankruptcy" case acceptance, the execution rate of the execution court will increase year by year. The backlog of old cases will be increasingly reduced, and every time the referring court makes a decision to declare the executed person bankrupt, or to terminate the settlement or reorganization procedure, the enforcement court will accordingly terminate the number of enforcement cases, so that a large number of cases that cannot be enforced for a long period of time will tend to be eliminated more and more. If the future legislation to expand to natural persons and partners can bankruptcy, more likely not need to crack the current implementation of the sound momentum, may not have to convene to crack the implementation of the study, perhaps only in the emergence of a new type of case before convening a seminar.

 

The above is a personal immature opinion, as a brick to attract jade!