When doing business in China, some foreign clients may encounter the need to collect debts through litigation. However, when a foreign client got a valid and favorable judgment, the other side may be unwilling to perform the judgement. This is one of the common stories that occurs when foreign clients collect debts through litigation.
Based on our rich experience in forcing debtors to perform judgments through enforcement procedures, we prepare this article to introduce the details on how to enforce an effective judgement in China Business Lawyers.
I. What is enforcement of an effective judgement in China?
This means that the court has ordered the defendant to repay the plaintiff's money or pay damages, the plaintiff can apply to the court to execute relevant properties of the defendant where the defendant refused to perform. Such plaintiff is the applicant for the enforcement and the other side is the party subject to enforcement.
II. When should the applicant apply for enforcement?
According to the law, the period for applying for enforcement is within two years after the enforcement basis (e.g. judgement, arbitration award) comes into effect. Please kindly pay attention to the time limit and protect legal rights and interests timely.
III. What kind of documents need to be submitted for the application for the enforcement?
Application for Enforcement
The Application for Enforcement should state the basic information of the applicant and the party subject to enforcement, the basis of enforcement, the subject matter of enforcement, the property information available for enforcement, etc.
- Identity materials of the applicant and the party subject to enforcement
Basis of enforcement
For example, the copy of an effective judgement should be submitted and the original one should be provided for review.
IV. Does the applicant need to pay the enforcement application fee to the court?
Generally, applicants are not required to pay the enforcement application fee in advance. During the enforcement procedure, the court will withhold the enforcement application fee from the amount executed, and the fee will ultimately be borne by the party subject to enforcement.
V. How does the court take measures to enforce the judgement?
Step 1: Issue an enforcement notice to the party subject to enforcement
After receiving an application for enforcement, the court shall issue an enforcement notice to the party subject to enforcement and order him/her to perform within the designated period where the party subject to enforcement does not fulfill the obligations determined by the judgement.
Step 2: Start property investigation
Through the internal system for enforcement, the court shall conduct a comprehensive investigation of properties under the name of the party subject to enforcement, including but not limited to bank deposits, equity, real estate, etc.
Step 3：Take enforcement measures
The court generally takes the following enforcement measures, including but not limited to:
- inquiring, freezing, and transferring the deposit of the party subject to enforcement;
- withholding and withdrawing the income of the party subject to enforcement;
- sealing, seizing, auctioning, and selling the property of the party subject to enforcement;
- searching the property hidden by the party subject to enforcement;
- forcing the party subject to enforcement to execute the acts specified in the judgement.
Step 4：Restrict extravagant consumption
If the party subject to enforcement fails to fulfill the payment obligations as specified in the enforcement notice, the court may take measures to restrict the extravagant consumption of such party and the relevant consumption not necessary in daily life or business operation thereof. Such measure is usually applied by the applicant.
Related laws and regulations:
Several Provisions of the Supreme People's Court on Restricting Extravagant Consumption and the Relevant Consumption of Persons Subject to Enforcement (Revised in 2015)
Article 3 After the consumption restriction measures have been taken against the party subject to enforcement who is a natural person, the party subject to enforcement shall not have the following extravagant consumption acts and the relevant consumption acts not necessary in daily life or work:
- choosing to take a plane, a soft sleeper in a train, or a berth of the second class or above on a ship, for traveling;
- having extravagant consumption at multi-star-rated hotels, restaurants, night clubs, golf courses, or other places;
- purchasing real properties, newly constructing or expanding houses, or decorating houses in a luxurious manner;
- renting high-class office buildings, hotels, apartments, or other office premises;
- purchasing cars that are not necessary for business;
- going on tours or vacation;
- sending children to private schools with expensive tuition;
- spending a large sum in purchasing insurance wealth management products; and
- taking any seat in a G-series China railway high-speed train or a seat of the first class or above in any other China railway high-speed train, and other consumption acts not necessary in daily life or work.
If the party subject to enforcement is a company, after being restricted from extravagant consumption, this company and its legal representative, main person in charge, and persons directly responsible for affecting the fulfillment of debts are prohibited from committing the acts stipulated in the preceding paragraph of this article. If natural persons under this paragraph intend to commit any act prescribed in the preceding paragraph by using their own properties for private purposes, they can file an application with the enforcement court which shall grant approval if the case is affirmed upon examination.
Step 5: Include in the blacklist
During the enforcement procedure, if the party subject to enforcement has capacity to perform but refuses to fulfill the obligations determined by the effective judgement (e.g. the debtor has money, but refuses to pay the creditor the amount due as stated in the effective judgment.), the court can include the party subject to enforcement in the dishonest list (also known as a kind of blacklist).
Such information will be listed online, which is warning the debtor’s business partners, customers, and the general public that the debtor had no business integrity.
(The enforcement information of party subject to enforcement can be checked by this website: http://zxgk.court.gov.cn/)
Moreover, being in black list will be subject to many restrictions, such as restrictions on loans, business, and extravagant consumption. These joint enforcement measures effectively secure a favorable outcome in enforcement cases.
Related laws and regulations:
Several Provisions of the Supreme People's Court on Issuance of List of Dishonest Persons Subject to Enforcement (Revised in 2017)
Article 1 The people’s courts shall include parties subject to enforcement in the list of dishonest parties subject to enforcement, and impose credit penalties on them according to the law, where parties subject to enforcement fail to perform the obligations determined by the effective legal documents, and commit any of the following violations:
- have capacity to fulfill the obligations determined by the effective legal documents but refuse to do so;
- obstruct or reject enforcement by fabricating evidence, perpetrating violence or making intimidation, etc.;
- dodge enforcement by false litigation, bogus arbitration or hiding and transferring property, etc.;
- violate the property reporting system;
- violate the consumption restriction order; or
- refuse to fulfill or implement the settlement agreement without justified reasons.
- About Letter of Demand and WFOE
Regarding the serious situation, the court may adopt the measure of judicial custody against the party subject to enforcement, or even the criminal punishments for resistance to enforcement actions. Please however note that courts rarely take these kinds of serious measures in practices.
We hope that by listing some of the common measures foreign clients may apply during the enforcement procedure can help achieve the purpose to collect debts in China. Since the coronavirus keeps raging on, it might be difficult for foreigner clients to enter into China. It is advisable to engage a lawyer to assist in enforcing the judgment without the need for the client to come to China in person to apply for enforcement.
Please kindly note that this article addresses the situation that the judgment is made in mainland China. Regarding the enforcement of foreign judgement, the situation could be complicated and will be addressed in another article.
If you need any assistance with the debt collection through enforcement procedure, please feel free to contact us via firstname.lastname@example.org