Circular of the Supreme People's Court Issuing the Guiding Opinions on Further Regulating Online Judicial Auctions
Provinces, autonomous regions and municipalities directly under the Central Higher People's Court, the People's Liberation Army Military Court, Xinjiang Uygur Autonomous Region Higher People's Court Production and Construction Corps Branch:
The Supreme People's Court on the further standardization of network judicial auction work of the guiding opinions are issued, please combine with the actual, seriously follow the implementation.
Supreme People's Court
October 29, 2024
Guiding Opinions of the Supreme People's Court on Further Standardizing Online Judicial Auctions
In order to further standardize the network judicial auction behavior, efforts to enhance the implementation of the level of property disposal, and effectively protect the legitimate rights and interests of the parties, according to the “Civil Procedure Law of the People's Republic of China” (hereinafter referred to as the Civil Procedure Law), as well as the provisions of the relevant judicial interpretations, combined with the implementation of the work of the practice of the network judicial auctions on the work of the following views.
1. Due diligence investigation of the status of the property. The implementation of the court shall investigate the status of the property, shall not be “status quo auction” as a reason to exempt from the duty to investigate. The following property, should focus on the investigation of the following matters:
(1) for real estate, should be through access to registration information, field survey, household survey, etc., investigate the ownership relationship, possession and use, house type, transaction tax and tax rate, known defects and other information;
(2) For motor vehicles, information such as registration information, violation information, emission standards, mileage and other information important to the value of the vehicle should be investigated;
(3) For foodstuffs, information such as whether they have expired, whether they are corrupted and deteriorated, and whether they are prohibited items for production and sale shall be investigated to prevent counterfeit and shoddy foodstuffs from flowing into the market through online judicial auctions, which will harm the people's health and safety of life;
(4) For equity, information such as the percentage of shareholding, the amount of subscribed capital, the amount of paid-in capital, the period of capital contribution, financial statements, and dividends, bonuses and other information that has an important impact on the value of equity shall be investigated.
2. Strictly examine the authenticity of the burden of rights. The enforcement court in the process of property investigation shall increase the screening of false burden of rights, outsiders claim that there is a lease on the property, the right of abode and other burden of rights, focusing on the time of signing the contract, the lease or the right of abode period, rent payment, possession and use of the authenticity of the burden of rights for review. If the facts and claims made by the outsider are contrary to the experience of daily life and the customs of commercial transactions, the request of the outsider to dispose of the property “with the right of lease” or “with the right of residence” shall not be supported. If the outsiders have objections, they may seek relief through the execution objection procedure. Found that the executed person and the third party through malicious collusion inverted lease contract, fictitious long-term lease to avoid or hinder the implementation of the way, shall be seriously investigated for its legal responsibility.
3. Seriously verifying the price of construction works. When the enforcement court disposes of the construction project, it shall ascertain whether the price of the construction project is owed in accordance with the law, and deal with it in accordance with the following circumstances respectively:
(1) If it is found that there exists or there may exist unpaid construction works price, but there is no right holder claiming, the execution court may identify the relevant right holder by posting auction notice, accessing the engineering contract, questioning the executed person, etc., and notify him/her to claim his/her rights in time, so as to strive for a one-time settlement of the dispute and reduce the subsequent disputes.
(2) Where an outsider who has not yet obtained the basis for execution claims the right to priority compensation for the price of the construction project and proposes to be given priority compensation, the execution court shall examine the construction contract and inquire about the executed person. Upon examination, it is determined that the outsider does not have the qualification of priority compensation, and if the outsider is not convinced, he may file a separate lawsuit for relief through the procedure of execution objection or another lawsuit; if it is determined that the outsider has the qualification of priority compensation, he shall be included in the distribution program, and if the party is not convinced of the program, he may file a lawsuit for relief through the procedure of distribution program objection and distribution program objection.
(3) construction project price priority right claim has reached with the executor of the “house against the debt” agreement, based on the application to exclude the implementation of the implementation of the court shall be in accordance with article 238 of the civil procedure law.
4. Standardize the application of inquiry. For property such as residence and motor vehicle which do not require on-site inspection or appraisal by professional personnel and have big data transaction reference, the method of online inquiry can be chosen. If the parties or interested parties believe that the network inquiry should not be applied or the results of the network inquiry deviate significantly from the market value, and apply for the application of entrusted appraisal, the enforcement court may grant permission after examination.
Special or complex properties such as industrial plants, construction projects under construction, land use rights, comprehensive markets with many stores, real estate with high value of decoration, as well as equity, mining rights, etc., which do not have the conditions for inquiry at present, and where the parties fail to bargain, entrusted appraisal shall be applied.
5. Improving the procedure for realizing the value of property involved in criminal cases. Criminal judgement involving property part of the implementation of the property involved in the last auction failed to sell, the enforcement court shall, in accordance with the “Supreme People's Court on criminal judgement involving property part of the implementation of a number of provisions” (Legal Interpretation 〔2014〕 No. 13), Article 12, paragraph 2, to consult with the financial sector, the victim agreed to receive the property or to pay compensation and other opinions. If the financial department or the victim does not agree to receive the property or pay compensation in kind, an unreserved auction may be conducted. However, for real estate, mining rights, large stocks and other property of high value for auction without reserve, should be reasonably determined margin and markup, after collegial deliberation, reported to the competent court leader for approval.
6. truthful disclosure of auction property information. The implementation of the court shall fully and truthfully disclose the property survey of the auction property status, possession and use of the situation, known defects and the burden of rights and other information, is strictly prohibited to conceal or exaggerate the auction property defects.
Auction property for real estate, the implementation of the court shall be in the auction notice of real estate possession and use of the situation, shall not be used in the auction notice, “possession of unknown”, “occupied by others” and other expressions. Decided to “with the right to rent” or “with the right of residence” auction, shall truthfully disclose the possession and use of the situation, the rent, the period, and the relevant rights holders and other important information.
Laws, administrative regulations and judicial interpretations of the buyer has a bidding qualification restrictions, shall be published in the auction notice.
7. Improving the mechanism of self-disposal by the executed person. The second network judicial auction abortive auction, the creditor applies for in rem or a third person applies for purchase at the abortive auction price, the enforcement court shall notify the executed person. The executed person claims to be higher than the price of the aborted auction price of the auction property at its own disposal, the enforcement court may allow after review, not to start the debt in kind, the third party to buy the program.
Self-disposal period by the implementation of the court according to the property status, market conditions and other circumstances to determine, generally shall not exceed 60 days. Self-disposal of real estate transactions, the buyer to the execution of the court to deliver the full price, the execution of the court may issue a transaction transfer ruling. The buyer to pay part of the price, the remaining price to apply for financing through loans and other means, and submit the relevant financing and other formalities to the enforcement court, the enforcement court, after coordinating with the agreement of the real estate registry agency, can issue a ruling on the transfer of the transaction by the buyer and seller to handle the “with the seal of the transfer of the” formalities. If the executed person fails to dispose of the property by himself, the enforcement court shall initiate the procedures of debt in kind and purchase by a third party.
8. Increase the real estate vacate delivery. Disposal of real estate, in addition to legal reasons, the implementation of the court shall be responsible for the delivery of the vacate, strictly prohibited in the auction notice statement “not responsible for the vacate”.
Need to organize the vacate delivery, the enforcement court shall make the vacate plan, and actively urge the executor and relevant occupants to take the initiative to move out. For those who still do not take the initiative to move out after urging, the court shall vacate the premises in strict accordance with the law, and do a good job of law enforcement records, safety and security.
In the process of vacating, the executed person and outsiders who have destroyed the property and obstructed the execution shall be fined or detained according to the seriousness of the situation; if it constitutes a crime, criminal responsibility shall be investigated according to the law.
9. Strictly collegiality and approval of major matters. The enforcement court shall establish a power list and ledger of important matters, and shall decide collegially on important matters such as the starting price, markup, burden of rights, the auction of the only housing, self-disposal, in rem, and purchase by a third party at the abortive price, and report for approval in accordance with the procedures, and strictly implement the system of reading and approving by the president of the court, and shall not be decided by the enforcement officer alone.
10. Strengthening the management of auction support work. The senior and intermediate people's courts shall strengthen the unified management of auction support work in their jurisdictions, and increase their efforts to provide guidance on auction support work in major complex and sensitive cases. Intermediate People's Courts with the conditions can be based on the actual situation of the jurisdiction, set up a relatively fixed personnel or team uniformly responsible for auction support work in the jurisdiction. The execution court will auction auxiliary work entrusted to auction auxiliary institutions to undertake, to strengthen the auction auxiliary institutions to perform their duties to supervise the situation, strictly prohibit the law, judicial interpretations of the provisions of the matters must be handled by the executives entrusted to the auction auxiliary institutions to complete; strictly prohibit the auction auxiliary personnel to use the case handling systems, accounts and keys, etc., and to prevent the disclosure of the secrets of the case; prohibit private contact with the bidder, the need for on-site samples, must be There are more than two auction auxiliary personnel present; auction auxiliary organizations, auction auxiliary personnel and their close relatives are strictly prohibited to participate in the auction auxiliary work of the auction of the property of their participation in the bidding; strictly prohibited to a third party to disclose the information of the intended bidders; strictly prohibit the private collection of fees in violation of the exclusion of potential bidders. To combine with the actual work of the jurisdiction, the development of effective management methods, clear auction auxiliary agencies work duties and list, standardize the billing methods and standards, and strictly regulate the admission and withdrawal procedures of the auction auxiliary agencies. To establish a mechanism for disciplinary action, found that the auction auxiliary agencies have violations of the law or do not meet the entry requirements, depending on the circumstances of the disciplinary measures to be taken to suspend, cancel the commission qualification and even de-listing and other disciplinary measures.
11. According to law to crack down on disrupting the order of online auctions. For those who publicize the provision of one-stop services such as “pre-auction investigation”, “clearing and collection” and “docking with the court” by means of exaggeration, deception and misinformation, inducing buyers to pay high commissions, or even forging judicial documents to fraudulently obtain property, or even forging judicial documents to fraudulently obtain property. Even forged judicial documents to obtain property by deception, seriously disrupting the order of network judicial auctions, the people's courts at all levels to actively join forces with public security, housing, market supervision and management and other departments, and resolutely crack down on the law. A regularized working mechanism should be established to maintain the order of online judicial auctions in accordance with the law by increasing publicity on online judicial auctions, regularly releasing typical cases, and carrying out special activities.
12. Deepen the comprehensive supervision of online auctions. People's courts at all levels shall work in strict accordance with the requirements of the law and judicial interpretations, and ensure that online judicial auctions are open and transparent, timely and efficient, and leave traces throughout. To take the initiative to accept the parties and the public on the auction activities of the whole process of supervision, the parties, the public or the media to reflect the auction problems, timely verification, timely correction, timely response to social concerns.
To take the initiative to accept the legal supervision of the procuratorial organs, promote information sharing, open supervision channels, so that the implementation of procuratorial supervision standardized, normalized and mechanized. For major sensitive and complex and people's strong reaction to the auction or vacate the delivery of the case, the procuratorial organs can be invited to supervise the implementation of activities.
Source: Supreme People's Court
