Analysis of procuratorial supervision over civil case execution

The existence of judicial execution of cases inevitably requires the simultaneous implementation of execution and supervision. Initially, procuratorial supervision over judicial execution was reflected mainly in the supervision over criminal execution of cases, and there was a deficiency in supervision over civil case execution.

There was once great controversy over whether the people’s procuratorate should exercise legal supervision over civil judicial execution by the people’s court. Moreover, the Supreme People’s Court’s Reply (Fa Fu [1995] No.5) excluded the procuratorial authority’s right to protest against all execution rulings from the scope of legal supervision, which limited the procuratorial authority’s supervision over the court’s execution activities.

It was not until 2012 that the Civil Procedure Law established a legal basis for procuratorial supervision over civil case execution. The Rules for Supervision of People’s Procuratorate over Civil Action (Trial), issued by the Supreme People’s Procuratorate in 2013; the Provisions of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning Legal Supervision over Civil Execution Activities (Fa Fa [2016] No. 30) (the provisions on supervision over execution), issued by the Supreme People’s Court and the Supreme People’s Procuratorate in 2016; and the Provisions on the Procuratorial Suggestions of the People’s Procuratorate, issued by the Supreme People’s Procuratorate in 2019, have all successively provided procedural rules and case-handling support for procuratorial supervision over civil execution.

In recent years, the number of cases in which people’s procuratorates have put forward procuratorial suggestions for illegal civil case executions has increased year by year, and the rate of acceptance by courts is as high as 60-90% . In addition to adopting the mechanism of “self-supervision by courts” in civil case executions, China has also established a supervision mechanism by an independent legal supervision authority, which provides a multi-layer supervision guarantee for solving the problems of “chaotic execution” and “difficult execution”.

This article sorts out the mechanism of procuratorial supervision over civil execution, and discusses and supplements the remedies and measures of safeguarding rights against illegal acts in civil execution.

Procedure initiation

The initiation of the procedure of procuratorial supervision over civil execution is mainly covered from two aspects: The application of the parties concerned, interested parties and outsiders; and the ex officio supervision by the people’s procuratorates.

Object, scope of supervision

The object of procuratorial supervision over civil execution is discovering illegal execution, including execution that violates the provisions of civil execution laws, or civil execution that does not violate the provisions but seriously infringes the substantive rights of the parties concerned or outsiders.

There is no specific list of illegal execution in the relevant regulations of supervision over civil case execution. The following are some common illegal execution cases of the execution court from judicial precedents: (1) Illegal seizure. Wrong seizure; excessive seizure; unlawful lifting of seizure; improper seizure that damages property; seizure of property prohibited from seizure; omission in finding and seizing the property of the person subject to execution; and refusing to seize the property of the person subject to execution who has the ability to perform; (2) Illegal evaluation. Illegal selection of an evaluation institution; malicious collusion to manipulate prices; depriving the parties concerned of the right of objection; and punishment without evaluation; (3) Illegal auctions. Illegal entrustment of auction institutions; collusion to manipulate judicial auctions; and auctions that violate the rights of outsiders; (4) illegal sale and repayment of debts in kind; (5) illegal disposal or detention of execution funds; and (6) infringement upon priority of compensation.

Supervision, examination and handling

In view of illegal execution, both the parties concerned and interested parties can apply to the people’s procuratorate of the same level as the execution court for supervision over the execution. Generally, cases are governed by the people’s procuratorate at the same level, and special cases can also be handled directly by the procuratorate at a higher level.

After accepting the application, the people’s procuratorate shall handle it with reference to the handling rules, and, based on examination of the case:

(1) Put forward procuratorial suggestions to the court, if it believes that there exists illegal execution. This is the main way for procuratorates to complete supervision over civil execution in recent years, which is applicable to all acts of illegal execution and improper execution, and is the main form and method specified in the relevant provisions of procuratorial supervision over civil execution.

(2) Send the Notice on Correction of Illegal Acts to the subject of illegal execution. This form is mainly seen in the process of supervision over criminal execution, aiming at the execution act where the procedure is obviously illegal, or the situation that the court refuses to accept the procuratorial suggestion, and occasionally seen in the case of procuratorial supervision over civil execution.

(3) Terminate the examination. In accordance with the relevant provisions on procuratorial supervision over civil execution, if it is considered that there is no illegal situation after examination, the procuratorate will: (a) determine not to support, and make a written decision on not supporting the application for supervision, and serve it on the applicant for the cases applied by the parties concerned, interested parties and outsiders; or (b) make a decision to terminate the examination for cases of ex officio supervision.

Prepositive procedure

In order to co-ordinate the system of procuratorial supervision over civil execution, and the execution objection system, and better protect the remedial rights of the parties concerned, or outsiders, article 6 of the above-mentioned provisions on supervision over execution provides the prepositive procedures that the applicants for supervision over civil execution must go through, that is, if the law provides that the parties concerned, interested parties and outsiders can object, reconsider or bring legal proceedings, they should go through the remedial procedure first.

If an application for supervision over civil execution has not gone through the remedial procedure, or has been filed before the end of the remedial procedure, the people’s procuratorate will not accept it.

Conclusion

Procuratorial supervision over civil execution has initially supplemented the deficiency of self-supervision of the court, which is helpful to promote the effective and legal advancement of civil execution. Meanwhile, it can be seen that the provisions of procuratorial supervision over civil execution are relatively simple, resulting in a single means of supervision and lack of a guarantee mechanism in procuratorial supervision. The scope, procedures, methods, time limit and other contents of supervision over civil execution need to be further clarified.

It is expected that procuratorial supervision can be constantly improved to better protect the legitimate rights and interests of the parties concerned, and to safeguard judicial justice.

Xuyu is a partner at Hylands Law Firm. He can be contacted on +86 10 6502 8888 or by email at xuyu@hylandslaw.com

Zhou Fan is a partner at Hylands Law Firm. She can be contacted on +86 10 6502 8792 or email at zhoufan@hylandslaw.com