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| Notice of the Supreme People's Court on No Level-by-level Modification of the Liable Subject into the Superior Institution of the Civil Act Conductor When Taking Civil Compulsory Measures | | 最高人民法院关于采取民事强制措施不得逐级变更由行为人的上级机构承担责任的通知 |
(No. 127 [2004] of the Supreme People's Court) | |
（法[2004]127号） |
The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government, the PLA Military Court, and the Production and Construction Army Corps Branch of the Higher People's Court of Sinkiang Uygur Autonomous Region: | |
各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院： |
During the recent period, when enforcing cases in which a banking or non-banking financial institution (hereinafter referred to as financial institution) is the enforcee or assistant enforcer, the courts in some regions, after taking civil compulsory measures against the financial institution and making the decision of fine or judicial detention, take civil compulsory measures against the superior financial institution level by level up to the headquarters of the bank or company, and makes a further decision of fine or judicial detention. This way of doing has caused ill effects. In order to correct this wrong act, we hereby give our notice as follows: | |
近一个时期，一些地方法院在执行银行和非银行金融机构（以下简称金融机构）作为被执行人或者协助执行人的案件中，在依法对该金融机构采取民事强制措施，作出罚款或者司法拘留决定后，又逐级对其上级金融机构直至总行、总公司采取民事强制措施，再次作出罚款或者司法拘留决定，造成不良影响。为纠正这一错误，特通知如下： |
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I.In the process of enforcement, a people's court shall, in strict accordance with the law, decide on taking a civil compulsory measure against a financial institution which is an assistant enforcer, and shall not modify the liable subject, level by level, into its superior financial institution. In accordance with Article 8 of the “Notice on Regulating the enforcement of the People's Courts with the Assistance of the Financial Institutions in Accordance with the Law”, i.e., No. 21 (2000) Promulgated by the Supreme People's Court jointly with the People's Bank of China on September 4, 2000, a people's court must, when enforcing a financial institution, meet five conditions if intending to modify the superior financial institution level by level into the enforcee: first, the financial institution must be a person against whom a judgment or order is enforced, and its debts have been confirmed by an effective legal document; second, the financial institution has received the notice from the enforcing court on performing its debt payment obligations within 15 days; third, the financial institution fails to voluntarily perform the debt payment obligations within the time limit, and has been compulsorily enforced by the enforcing court; fourth, the financial institution fails to provide the enforcing court with executable properties; fifth, the superior financial institution of the financial institution against whom the court ruling is enforced shall bear joint civil liabilities for paying off the debts. If any civil compulsory measure is taken against a financial institution which is an assisting enforcer due to its hindrance to the enforcement, it is different from the circumstance in which the financial institution is the enforcee, therefore, the liabilities for judicial penalty shall be borne by the inferior financial institution itself; while the modification of the liable subject into the superior financial institution level by level is a wrong application of law.
．．．．．． | | 一、人民法院在执行程序中，对作为协助执行人的金融机构采取民事强制措施，应当严格依法决定，不得逐级变更由其上级金融机构负责。依据我院与中国人民银行于2000年9月4日会签下发的法发（2000）21号即《关于依法规范人民法院执行和金融机构协助执行的通知》第八条的规定，执行金融机构时逐级变更其上级金融机构为被执行人须具备五个条件：其一，该金融机构须为被执行人，其债务已由生效法律文书确认；其二，该金融机构收到执行法院对其限期十五日内履行偿债义务的通知；其三，该金融机构逾期未能自动履行偿债义务，并经过执行法院的强制执行；其四，该金融机构未能向执行法院提供其可供执行的财产；其五，该金融机构的上级金融机构对其负有民事连带清偿责任。金融机构作为协助执行人因其妨害执行行为而被采取民事强制措施，不同于金融机构为被执行人的情况，因此，司法处罚责任应由其自行承担；逐级变更由其上级金融机构承担此责任，属适用法律错误。
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