After the appeal of the second instance, the property preservation period of the first instance litigation expires, or the second instance finds clues about the other party's property, should the parties apply to the court of first instance or the court of second instance for property preservation?
Case 1: After the appeal of the second instance and before the conclusion of the second instance, the bank deposit period of the other party who applied for preservation in the first instance expired, and the party applied to the court of first instance for renewal of insurance. The court of first instance held that all the file materials had been transferred to the court of second instance, refused to renew the insurance, and informed the parties to apply to the court of second instance for renewal.
Case 2: After the appeal of the second instance, the parties found the clues of the other party's property and applied to the court of second instance for property preservation, but the court of second instance held that they should apply to the court of first instance for property preservation, and property preservation was not accepted during the second instance.
Case 3: Before the case of second instance was transferred, the parties found clues about the other party's property and applied to the court of first instance for property preservation. The court of first instance believes that the trial procedure of first instance has ended, and the court of second instance should be applied.
The above three cases are aimed at whether the parties can apply for litigation property preservation measures during the second instance. Which court is responsible for the preservation of litigation property?
1. Can the parties apply for litigation property preservation during the second trial?
According to the first paragraph of Article 100 of the Civil Procedure Law of People's Republic of China (PRC): "In the case that the judgment may be difficult to execute or cause other damage to the parties, the people's court may, upon the application of the other party, order the property to be preserved, order it to do certain acts or prohibit it from doing certain acts;" If the parties do not apply, the people's court may also order the adoption of preservation measures when necessary. "This provision stipulates that the people's court has the right to take property preservation measures, and the parties can apply for property preservation as long as they meet this condition. This article does not stipulate that only the court of first instance has the right to take property preservation, which means that the court of second instance can also take property preservation. Property preservation cases are applicable to cases where the judgment is difficult to execute or other damages are caused to the parties due to the behavior of one party or other reasons.
Article 103 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) stipulates: "Before the people's court of second instance accepts the submitted case, if the people's court of first instance has moved, concealed, sold or destroyed the property and must take property preservation measures, it shall be taken by the people's court of first instance at the request of the parties or ex officio. The ruling on property preservation made by the people's court of first instance shall be submitted to the people's court of second instance in a timely manner. " According to this provision, the parties in case 3 apply to the court of first instance for property preservation, and the court of first instance shall allow it if it meets the circumstances.
Second, which level of court should preserve litigation during the second trial?
In case 3, the parties may apply to the court of first instance for property preservation, but which court should hear case 1 and case 2?
The first opinion is that because the court regards property preservation as one of the litigation activities, after the judgment of the first instance, the trial of the first instance is over, and the court of first instance has no right to conduct litigation activities in this case without the authorization of the court of second instance. Therefore, the court of second instance should take property preservation measures during this period.
The second view is that after the verdict is pronounced in the first instance, only the trial procedure of the first instance is terminated, not including the execution procedure. Property preservation measures do not belong to the scope of trial procedure, and should be regarded as the first execution procedure. According to Article 224 of the Civil Procedure Law of People's Republic of China (PRC): "The legally effective civil judgments and rulings, as well as the property part of criminal judgments and rulings, shall be executed by the people's court of first instance or the people's court of the place where the property is executed at the same level as the people's court of first instance." Property preservation in litigation, as a means or way to guarantee the execution of judgments, is naturally considered to be taken by the court of first instance according to the jurisdiction of execution. Therefore, property preservation measures during the second trial should be taken by the court of first instance.
The third opinion is that the property preservation court should be determined according to the court where the original file was located at that time. It is not good for the court to take property preservation measures without a file. The file was still in the court of first instance before it was transferred to the court of second instance, and the property preservation during this period should be taken by the court of first instance. After the file is retrieved, the file is already in the court of second instance and should be retrieved by the court of second instance.
The author thinks that it is more appropriate for the court of first instance to take the continuation of property preservation during the second instance. The court of second instance shall take action against the parties who find the other party's new property clues and apply for property preservation during the second instance.
Three. Feasibility of adopting the court of first instance to continue the property preservation of first instance during the second instance.
First, it is convenient for the parties to apply and the court to execute. In most cases, the applicant is located closer to the court of first instance than to the court of second instance, and after the first instance, the parties and the judge of first instance are more familiar with it than the judge of second instance, so it is more convenient for the parties to apply for property preservation from the court of first instance than from the court of second instance. The judge of first instance knows the basic situation and case of the parties better than the judge of second instance. In most cases, the court of first instance is closer to the property location than the court of second instance. It is more convenient and economical for the court of first instance to take property preservation measures than the court of second instance.
Second, it can prevent the phenomenon of delaying the opportunity of property preservation in the transfer of cases. It takes a long time for the case to be transferred to the second instance for filing. The case is transferred in the first instance (some by mail), and the case is filed in the second instance. The case file is transferred to the undertaker, who is familiar with the case, and it will take some time for the applicant to contact the undertaker in the second instance. These factors can easily delay the fleeting opportunity of property preservation.
Third, it can reduce unnecessary transfer links and save valuable judicial resources. If the litigation preservation measures taken during the second instance are taken by the court of second instance, and the property preservation taken during the first instance expires during the second instance, the court of second instance shall make a ruling of second instance to freeze or seal up the property in different places. After the end of the second trial, the court of second instance may lift its property preservation measures, and the enforcement department of the court of first instance shall decide to take measures again. This will consume a lot of manpower and financial resources of the courts of first and second instance, and may also cause property losses due to careless handover.
Fourth, the property preservation measures adopted by the court of first instance will not affect the trial of cases of second instance. Whether to take property preservation measures has nothing to do with the substantive handling of the case. After the judgment of the first instance, although the losing party objected to the court of first instance, the court of first instance took property preservation measures, which did not affect the judgment of the court of second instance according to law.
Fifth, it conforms to the execution jurisdiction. Since the law has stipulated that the execution of the case shall be executed by the court of first instance, it is logical for the court of first instance to take the property preservation of the execution procedure first, which can not only ensure the consistency and unity of the execution of the case in the future, but also avoid unnecessary handover procedures.
Sixth, the relevant provisions on renewal of insurance during the second trial. Article 51 of "Several Provisions of Shanghai Court on Property Preservation (Trial)" stipulates: "If the applicant requests to renew the property preservation measures with a time limit, he shall apply for renewal. If the applicant fails to apply for renewal, the relevant court of the people's court shall remind the applicant of the expiration of the property preservation period 7 days in advance. During the second instance, if the applicant fails to apply for extending the ruling of the people's court of first instance on property preservation, the relevant court of the people's court of second instance shall promptly remind the applicant of the expiration of the property preservation period; If the applicant applies or is prompted to apply, the relevant court of the people's court of second instance shall contact the relevant court of the people's court of first instance in time and provide relevant materials, and the people's court of first instance shall go through the renewal procedures. "
Four. The feasibility of applying for preservation measures to the court of second instance in view of the clues of the other party's property discovered by the parties during the second instance.
First, from a legal point of view, if a judgment or arbitral award cannot be enforced or is difficult to enforce due to the behavior of one party or other reasons, the people's court may make a ruling on property preservation according to the application of the other party or the application of the other party submitted by an arbitration institution. As long as one party has the above circumstances, the other party may apply to the people's court for property preservation, whether during the first trial or the second trial. Article 19 of Several Provisions of Shanghai Court on Property Preservation (Trial) stipulates: "If a party applies for property preservation during the period of second instance, the people's court of second instance shall make a ruling and execute it." The Interpretation of the Civil Procedure Law also stipulates that the court of first instance shall take property preservation before the case is transferred to appeal, which also shows that the court of second instance shall take property preservation after the case is transferred to appeal.
Second, in the second instance, the parties apply for property preservation, because the file materials of the first instance are in the court of second instance, and the judge of second instance is familiar with the case, so he can make a ruling according to the application of the parties and the analysis of specific cases, because the judge of second instance has independent views and opinions on the case.
Third, the principle of convenience for the parties. In the trial of second instance, property preservation is to ensure the final execution of the case. In the second instance, the parties apply for the preservation of the other party's property, and coordinate the settlement during the trial of the case to facilitate the parties to resolve the dispute.
To sum up, in view of the litigation property preservation of the parties during the second instance, different situations should be distinguished, and the court of first instance or the court of second instance should take preservation measures according to the provisions of the law and the principle of convenience for the parties. Only in this way can the rights and interests of the parties be better protected.
I am a lawyer of Xingtian, focusing on intellectual property disputes and sharing major intellectual property cases. Believe in the law and ask Xingtian.
Only when you really understand the law can the plan land.