Armour bank and dispute of contract of second company borrow or lend money in process of one case lawsuit, court to my company service " assistance carries out advice note " : Freeze 200 million yuan of second company creditor's rights that to me the company enjoys; In freeze deadline inside, must not pay second the company afore-mentioned money, my company did not put forward to reconsider. After adjudicating become effective, armour bank applies for to be carried out compulsively to the court. Court to my company service " assistance carries out advice note " , the requirement extracts company of second of person be executived expire creditor's rights 200 million yuan, ask my company delimits money this courtyard assigns account within 5 days, nonperformance of exceed the time limit will undertake condemnatory according to relevant law provision.
Because my company still is put in controversy with the debt of 200 million creditor's rights between second company and did not expire, did not carry out advice note to fulfil obligation according to this assistance so, the court makes executive ruling, freeze my company bank deposit 200 million yuan. My company thinks executive court was not given out to my company fulfill expire below the condition that debt notices, rule my company carries out a person to fulfill to application directly expire creditor's rights, not regulation of be good law, reason puts forward to carry out demur to the court.
Ask, should be the demur of my company denied get supportive?
The lawyer replies:This lawyer thinks: Your demur ought to get supportive.
Alleged expire creditor's rights, it is to have firm creditor's rights, 2 it is creditor's rights has expired. In judicatory practice, when to be being carried out what the person is in in the 3rd person to expire creditor's rights takes executive step, can not decide this creditor's rights is actual existence, also cannot decide this creditor's rights already expired.
People court is carrying out the 3rd person to expire in the process of creditor's rights, to the creditor's rights that try without entity and affirms via copy clerk of become effective law, actuator ought not to is opposite person be executived and whether does relationship of creditor's rights debt exist to have hypostatic judgement between the 3rd person, if the 3rd person demur, do not carry out compulsively to the 3rd person namely.
The court in this problem is privative in executive program the demur right of the 3rd person, direct ruling carries out a person to fulfill to application by the 3rd person, replace adjudgement program in order to execute an order namely actually, in executive phase whether actual to creditor's rights existence, creditor's rights expires and more or less did creditor's rights amount undertake entity is examined, stripped the litigant right with legal party, violate afore-mentioned legal regulations apparently, should grant to correct.
Relevant law:" civilian explanation telling a way "
The belongings of the 159th debtor cannot be satisfied conserve request, but have to other expire of creditor's rights, the application that people court can depend on creditor rules this other must not is opposite this case debtor pay off. Of liquidate of this other requirement, by property of people court drawing or money paid for something purchased or received for something sold.
" executive regulation "
61. Person be executived cannot pay off debt, but enjoy to the 3rd person beyond this case expire of creditor's rights, people court can carry out person or the application of person be executived according to application, give out to the 3rd person fulfill expire the announcement of debt (the following abbreviation fulfills an announcement) . Fulfill an announcement must direct service the 3rd person.
Fulfill an announcement to ought to contain following content:
(1) the 3rd person carries out a person to fulfill to application directly its are right the debt that place of person be executived owes, must not to pay off of person be executived;
(2) the 3rd person ought to be in receive 15 days of indrawn application after fulfilling an announcement to carry out a person to fulfill debt;
(3) the 3rd person expires to fulfilling creditor's rights disagrees, ought to be in receive 15 days of indrawn executive courts after fulfilling an announcement to put forward;
(4) the law that the 3rd person violates afore-mentioned obligation is sequential.
63. During the 3rd person is fulfilling what the announcement appoints inside of demur, people court must not be carried out compulsively to the 3rd person, do not undertake checkup to the objection that raise.
Case index:(2015) hold answer word the 15th
Solid Wu suggests:Actuator is not gotten in executive program party between open to question, the hypostatic legislation impact that does not have trial verdict undertakes cognizance handling directly, namely what we say normally: Must not " with hold acting careful " . In be being carried out to avoid subrogation to carry out, appear " with hold acting careful " mistake, " executive regulation " the 63rd clear actuator does not get pair of the 3rd person (namely second debtor) demur undertakes checkup, the 3rd person disagrees a break down carry out.
