Author: Wang Liping, Deng Ping, partner of Shanghai Jintiancheng lawer firm
Recently, the dynamics of skiing between Wang Sicong and female friends in Japan have revived public debate about spending restrictions. Before that, Wang Sicong`s equity in a number of companies had been frozen by the court, and Wang Sicong himself had been listed as an executor by a number of courts and issued a consumption restriction order.
So why is it that Wang Sicong has been restricted, but he can still play skiing in Japan so well? This paper will briefly analyze the impact of restricted consumption on restricted consumers for readers` reference.
1. What is a consumption restriction orde
Restriction of consumption is a kind of civil enforcement measures stipulated in the Civil procedure Law of the people`s Republic of China. The people`s court may take measures to restrict high consumption and non-domestic or operational necessary consumption against those who fail to perform the payment obligations determined by the effective law documents within the period specified in the notice of execution.
(1) who will be restricted to consumption
If the person subject to execution fails to perform the payment obligation determined by the effective law instrument within the period specified in the notice of execution, the people`s court may take measures to restrict consumption.
When the person to be executed is a unit, the court may also take measures to restrict consumption against the legal representative of the unit, the principal responsible person, the person directly responsible for the performance of debt, and the actual controller ("unit related personnel").
(II) specific content of restricted consumption
After taking measures to restrict the consumption of the person subject to execution, the Supreme people`s Court shall not carry out the following nine kinds of consumption behavior: (1) aircraft, train soft sleeper, second class or above class space of ships, (2) high consumption in hotels, hotels, nightclubs, golf courses and other places above the stars of the Supreme people`s Court (hereinafter referred to as the "regulations on restriction of consumption"), which shall not be carried out as follows: (1) aircraft, train soft sleeper, second class or above class of ships; (2) high consumption in hotels, hotels, nightclubs, golf courses, etc. (3) purchase real estate or build, expand, and decorate house; (4) lease high-grade office buildings, hotels, apartments and other places for office work; (5) purchase non-operating essential vehicles; (6) travel, vacation; (7) children attend high-fee private schools; (8) pay high premiums to buy insurance and financial products; (9) all seats in G-shaped EMU trains, other non-domestic and work-related consumption behaviors such as first-class or above seats on other EMU trains.
Among them, if the legal representative of the company and the corresponding executive do carry out the above nine prohibited acts with personal property because of private consumption, they may apply to the people`s court.
(III) exceptions
According to Article 8 of the provisions on restriction and cancellation, if the person subject to execution is required to restrict consumption because of his or her life or operation, he shall obtain the prior approval of the people`s court before doing so.
two. Why is Wang Sicong restricted from consumption?
Combined with the retrieval information of China Executive Information publicity Network, Wang Sicong is restricted to consumption, which mainly exists in the following two situations:
(1) I am restricted to consumption as the person subject to execution
In case No. 1325 of Beijing No. 2 Intermediate people`s Court (2019), Wang Sicong, as the person subject to execution, was directly served by the court to restrict consumption and took measures to restrict consumption.
(2) as the actual controller of Shanghai Panda Mutual Entertainment Culture Co., Ltd., consumption is restricted.
In three enforcement cases, Shanghai Jing`an District people`s Court (2019) Shanghai 0106 held 11712, 11713 and 11714, all of them were Shanghai Panda Mutual Entertainment Culture Co., Ltd. (hereinafter referred to as "Panda Mutual Entertainment"). Wang Sicong was restricted to consumption as the actual controller of panda mutual entertainment.
3. The influence of consumption restriction order on Wang Sicong
(1) is Wang Sicong already an old man?
At present, there are views calling Wang Sicong has memorized a number of consumption restrictions and become "Lao Lai." This view is not appropriate. Restricting consumption is not the same thing as being included in the list of executors of breach of trust (commonly known as "Lao Lai").
If the starting condition of restricting consumption is low and the person subject to execution fails to repay the payment within the specified period of the notice of execution, the court may take measures to restrict consumption on the basis of application or ex officio. However, the person subject to breach of trust requires that the person subject to execution must have malicious evading execution acts expressly stipulated by the law, including: (1) those who have the ability to perform and refuse to perform the obligations determined by the effective law documents; (2) obstructing and resisting execution by means of falsifying evidence, violence, threat, etc.; (3) evading execution by means of false litigation, false arbitration or concealment, transfer of property, etc.; (3) evading execution by means of false litigation, false arbitration, or concealment, transfer of property, etc.; (4) violating the property reporting system; (5) violating the consumption restriction order; (6) refusing to perform the settlement agreement without reasonable reasons.
It can be seen that being included in the list of dishonest executors is a more severe enforcement measure than restricting consumption. Common Credit discipline, in qualification, financing credit, exit, market access, bidding, administrative examination and approval.
At present, Wang Sicong has not been included in the list of people who have been executed in breach of trust, and he is not an old man. But he is not safe, has been taken to restrict consumption measures, if violated, will be accepted as a breach of trust.
(2) is it still possible to travel abroad?
Outbound tourism belongs to tourism and is explicitly prohibited by the restriction and cancellation regulations. Therefore, Wang Sicong, who is restricted in consumption, should not be able to travel abroad. So is Wang Sicong restricted from leaving the country?
Restricted consumption is not necessarily restricted from leaving the country. According to the provisions of the Law of the people`s Republic of China on the Administration of entry and exit, people who "have outstanding civil cases and the people`s court is not allowed to leave the country" will be restricted to leave the country. Therefore, there must be an creditor application or a court must take the initiative to prevent him from leaving the country.
As a result, Wang Sicong was found to have two possibilities in Japan, one was that he had been abroad before he was restricted to leave the country, and the other was that he had not currently implemented the applicant`s request to restrict his exit (for example, creditor hoped that it would be able to raise property overseas to repay debt).
(3) can Wang Sicong use other people`s property to carry out prohibited consumer behavior?
With regard to this issue, Article 3 of the restriction provisions states as follows: ". After being subject to consumption restrictions, there shall be no following high consumption and consumption behaviors that are not necessary for life and work." This brings differences to the practical interpretation, some scholars believe that it must be consumer behavior, not the behavior itself is restricted; others believe that these behaviors are consumer behavior, regardless of the source of funds.
In practice, even if people who are restricted to consume use their identity information to enter relationship system, they can not buy second-class or above class transportation and move into star-rated guesthouses. Therefore, from the above situation, the restriction order does not seem to consider the source of funds for their consumption.
However, in the answers to some questions about restricting consumption and adding it to the list of breach of trust, Guangdong High Court clearly stipulates that after restricted consumption, the person subject to execution cannot carry out prohibited consumption behavior or accept prohibited consumer services with the property of others.
On the contrary, in the Code of implementation of Beijing Court issued by the Beijing High Court, the Beijing High Court only requires natural persons with restricted high consumption not to pay high consumption with their property, which seems to give a clear explanation of the restriction and cancellation regulations, and the behavior of high consumption with the property of others is not prohibited.
At present, the cases in which the executor has not been punished or promoted to breach of trust with the property of others has not been found from the public channel.
However, the author believes that the use of other people`s money to spend money is contrary to the spirit of legislation, and objectively will encourage speculative ways of debt evasion. Moreover, the act will objectively result in the decrease of the personal property of the person subject to execution (even if the gift is accepted, the property will already belong to the personal property of the person subject to execution), which will affect the ability of the person to perform debt. Therefore, even if others treat, it should be regarded as the property of corresponding value should be used for the return of debt rather than pleasure.
4. Consequences of violations of consumption restrictions
Combined with the relevant provisions of the restriction and cancellation provisions and the Civil procedure Law, if Wang Sicong`s behavior is finally found to be a violation of the consumption restriction order, the court may include it in the list of those who have been executed in breach of trust, impose a fine on the, detain; if the circumstances are serious, or even refuse to execute the judgment and find the crime to be investigated for criminal responsibility.
* the above content is reproduced from Phoenix New Media and does not mean that this website agrees with its views and is responsible for its authenticity.
