China: Property Preservation Orders - New Rules And New Ways (Chinese)

Last Updated: 2 February 2017
Article by Ik Wei Chong and Leslie Shen

概述

2016年10月17日,中国最高人民法院发布《关于人民法院办理财产保全案件若干问题的规定》 (简称《规定》) 。该《规定》已于2016年12月1日生效。

在本期法律更新中,我们将聚焦该《规定》的一些重要内容,包括财产保全的审执分离、财产保全的审核及执行期限、财产保全的担保金额和形式,以及被保全人财产信息的查询。

背景

《规定》实施前,财产保全主要由《中华人民共和国民事诉讼法》及其司法解释(简称《 法律法》)调整。司法实践中,由于前述《法律法规》对于财产保全实施过程中具体环节的规定不够具体,各级法院在实施财产保全的过程中拥有较大的自由裁量权,进而导致处理财产保全申请的做法不一。

《规定》结合审判、执行实践,对财产保全进行了更加具体的规定,有利于财产保全的简单化、规范化。

《规定》关键内容

《规定》共29条,重点包括五个方面的内容。

  • 财产保全的审理及执行机构的分离

第二条规定,人民法院进行财产保全,由立案、审判机构作出裁定,一般应当移送执行机构实施。该条将在一定程度上改善各地法院在司法实践中对于财产保全的审理及执行分工不一的局面。

  • 作出财产保全裁定的时限

第四条规定人民法院接收财产保全申请后应当在五日内作出裁定,或者在需要提供担保的情况下,在提供担保后五日内作出裁定。裁定采取保全措施的,应当在五日内开始执行。紧急情况下,财产保全的裁定须在四十八小时内作出并应在裁定作出后立即开始执行。该条首次明确了非紧急情况下诉讼中财产保全裁定的作出及执行时限,将有效提高法院审核及执行财产保全的效率。

  • 财产保全的担保数额的调整

第五条规定申请诉讼中财产保全,担保数额不超过请求保全数额或者争议标的价值的百分之三十。在《规定》出台之前,各级法院一般会要求诉讼中保全申请人提供相当于保全数额的担保。该条降低了诉讼中财产保全申请的门槛,有利于保护保全申请人的利益。

  • 担保

第七、八条首次明确保险公司可以以财产保全责任险的形式、依法设立的金融机构可以以独立保函的形式为保全申请人提供担保。另外,第九条规定商业银行、保险公司等具有独立偿付债务能力的金融机构在诉讼中提起财产保全时,可以不提供担保。

  • 对被保全人财产信息的查询

第十条规定,申请诉讼中财产保全,申请保全人确因客观原因不能提供明确的被保全财产信息,但提供了具体财产线索的,人民法院可以依法裁定采取财产保全措施。在此情形下,根据第十一条的规定,在该裁定执行过程中,申请保全人可以向已经建立网络执行查控系统的执行法院申请查询被保全人财产。可以看出,《规定》实施以后,法院依旧要求保全申请人提供被保全人明确的财产信息,确因客观原因不能提供的,在裁定执行过程中可以申请通过法院查询。但是,哪些法院已经建立网络执行查控系统并未对外公布,因此该规定在实践中是否能够取得预期的效果存疑。

简评

《规定》的实施无疑简化明晰了法院财产保全的程序和要求。但是,鉴于《规定》的实施尚在摸索阶段,它能否为保全申请人提供更快捷的保障尚待考证。

Property Preservation Orders - New Rules And New Ways (Chinese)

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