Application of exit restriction measures by Chinese court
The measures taken by the people’s court to restrict the exit from the country during the execution means that the people’s court notifies the parties with outstanding execution cases not to leave the country according to its authority or at the application of the parties. This is to take border control measures against a special group with the cooperation of the customs, public security and other departments. Monitoring the entry and exit activities of the person subjected to execution can, to some extent, control the extravagant consumption of the person subjected to execution and deter the person subjected to execution. In the current situation of the spread of the global economic crisis, many enterprises are in trouble. The people’s courts should be cautious in using compulsory enforcement measures such as seizure and freezing, and the measure of restricting exit is a more secure enforcement measure.
1．Several exit restriction measures in implementation
Article 23 of the law of the people’s Republic of China on the administration of the entry and exit of foreigners and Article 8 of the law of the people’s Republic of China on the exit and entry of citizens stipulate that the people’s court may decide on measures to restrict the exit of foreigners and Chinese citizens who have pending civil and commercial cases in the mainland. Article 231 of the revised civil procedure law makes specific provisions on measures to restrict exit: “if the person subjected to execution fails to perform the obligations specified in the legal document, the people’s court may take measures against him or notify the relevant units to assist in taking measures to restrict exit.”
The debtor often leaves the country to avoid legal obligations. The purpose of restricting exit is mainly to urge the person subjected to execution to perform his / her obligations and prevent him / her from evading execution by leaving the country. Therefore, the judicial interpretation stipulates that the specific scope of the persons who exit the country is limited. In the case that the person subjected to execution is a legal person or other organization, it includes not only his / her legal representative, the main person in charge, but also the accounting personnel and other persons directly responsible for affecting the performance of the obligations. As far as China is concerned, the notification and filing system is implemented for those who are not legally approved to leave the country. The notification and filing organs are: People’s courts, people’s procuratorates, public security organs, national security organs, judicial administrative organs and other units. The time limit for notification and filing of persons who are not legally approved to leave the country is generally one year, and under special circumstances, it shall not exceed five years. Unless otherwise expressly stipulated by relevant laws and regulations, the decision not to approve exit for more than one year but less than five years shall be made by the municipal notification and filing authority; The decision not to leave the country for less than one year (including one year) shall be made by the district or county-level notification and filing authority.
In accordance with the provisions of the Supreme People’s court, the Supreme People’s Procuratorate, the Ministry of public security and the Ministry of national security on the issue of legal restrictions on the exit of foreigners and Chinese citizens, the people’s court may take corresponding measures to prohibit, restrict and control the exit of Chinese citizens according to the different conditions of the objects notified for filing. First, if a party has not executed a civil case, he shall be notified orally or in writing to the party and shall not leave the country before the case (or problem) is concluded; Second, the people’s court may issue a notice to assist in the implementation of the restriction on exit, order the party concerned not to leave the country, detain his identity card or passport, and indicate the reasons for not leaving the country; Third, if the people’s court fails to detain his identity card or passport, it may request the public security organ to assist in the collection and revocation of his certificate, or request the public security organ to declare it invalid; Fourth, for those who do not hold passports or other entry-exit certificates, the public security organ may be required to refuse to approve the overseas (entry-exit) application of the object of notification and filing within the time limit of exit restriction; Fifthly, if the license of the person who is restricted from leaving the country cannot be seized and the exit needs to be prevented at the border inspection station, the public security and border defense organs can be asked to assist in border control. Control measures mainly include: Mastering entry-exit dynamics, preventing exit, preventing exit and detaining documents, preventing entry, preventing entry and detaining documents, detaining personnel.
2． application of exit restriction measures in the implementation
The civil procedure law gives the people’s court the decision power to restrict the exit of the person subjected to execution, and the behavior of the exit and entry administration organ is characterized as a legal obligation of assistance. However, due to the insufficient coordination between some courts and exit and entry administration agencies, there are still some problems in the application.
First, the application of exit restriction measures is single.
Some people believe that the restriction of exit is the “border control” of the person subjected to execution for a period of three months, so only border control measures are taken. In fact, the people’s court can take measures according to the situation of the person subjected to execution, such as directly detaining his ID card or passport; Request the public security organ to assist in the collection, revocation or invalidation of his certificate; For those who do not hold passports or other exit and entry certificates, the public security organ may be required to refuse to approve the exit (entry) application of the person subjected to execution within the time limit for exit.
Second, the procedure of applying exit restriction measures is not standardized.
The civil procedure law defines the persons who apply the measures of exit restriction, but does not stipulate specific procedures. After all, the measures of exit restriction are compulsory measures. There should be certain conditions for starting the measures, and there should be strict approval procedures for making the measures.
Third, there is insufficient information feedback on the application of exit restriction measures.
Among the measures to restrict exit, border control is the most stringent measure, which is implemented by the court with the assistance of the entry and exit management department, and the information feedback is also very timely. However, if the people’s court requests the public security organ to assist in the collection, revocation or invalidation of his certificate; For those who do not hold passports or other exit and entry certificates, there is insufficient information feedback on requiring the public security organ not to approve the exit (entry) application of the person subjected to execution within the limit of exit.
3．Correct application of exit restriction measures
The civil procedure law makes it clear that exit restriction measures are one of the compulsory enforcement measures. The people’s court is the decision-making organ, and the public security organ is the organ of compulsory assistance. As long as the decision made by the people’s Court conforms to the relevant provisions of the entry and exit laws and regulations, the public security organ should unconditionally assist in the implementation. Practice shows that the correct application of exit restriction measures is not only a denial of the integrity of the parties, but also a deterrent, which reduces the life and business circle of the person subjected to execution, and plays a certain role in solving the difficulty of execution.
First, we should grasp the objects and conditions of restricting exit.
Considering that the purpose of restricting exit is mainly to promote the person subjected to execution to perform his / her obligations, prevent him / her from evading execution through exit, and limit the specific scope of the person who leaves the country, in the case of the person subjected to execution being a legal person or other organization, it includes not only his / her legal representative and principal person in charge, but also the person directly responsible for affecting the performance of the obligations, such as accountants. If the person subjected to execution is a person without civil capacity or a person with limited civil capacity, his legal representative may be restricted from leaving the country. Applying the conditions of restricting exit, the law stipulates that “if the person subjected to execution fails to perform the obligations determined by the legal instrument”, from the meaning of “performing the obligations determined by the legal instrument”, all the persons subjected to execution have not performed the obligations determined by the basis of execution, so all the persons subjected to execution can be restricted from leaving the country. However, for cases that have controlled property and can be implemented adequately, it is not necessary to take this measure for the person who has no possibility of leaving the country. Otherwise, it will not only fail to play its due deterrent role, but also affect the seriousness of the law. Therefore, the exit restriction measures should not be abused, and should be used with caution and appropriately.
Second, we should grasp the procedures and remedies of restricting exit.
As long as the measures are conducive to the implementation of the case, the people’s court should take the initiative to take measures to restrict exit as an implementation measure. The parties can apply to the court, and the court can also take measures ex officio according to the situation of the case. The legal nature of exit restriction measures is enforcement, which restricts personal freedom to a certain extent. The adoption of exit restriction measures should be deliberated by the executive collegiate bench and made in the form of a written ruling. Decisions or other methods should not be applied. The content of the ruling should include the time limit, specific methods and reconsideration rights of the exit restriction, because the exit restriction measures belong to a kind of Enforcement Act, and the parties and interested parties can apply for reconsideration in accordance with the provisions of article 202 of the civil procedure law.
Third, we should grasp the way and time limit of restricting exit.
According to the relevant exit and entry administration regulations, the people’s court can take corresponding measures to prohibit, restrict and control Chinese citizens from leaving the country in five ways: (1) for general enforcement cases, it can notify the parties orally or in writing, and they are not allowed to leave the country until their cases are concluded; (2) The people’s court may directly detain the ID card or passport of the person subjected to execution, and he may not leave the country; (3) If the people’s court cannot detain the ID card or passport of the person subjected to execution, it may order the confiscation or revocation of his certificate, and request the public security organ to assist in the execution, or order the cancellation of his certificate, and request the public security organ to assist in the execution; (4) For those who do not hold passports or other exit and entry certificates, the basic court may rule not to approve the application for filing the person under execution to go abroad (exit) within one year, and the intermediate court may rule not to approve the application for filing the person under execution to go abroad (exit) within five years. The specific time limit may be determined by the people’s court based on the circumstances of the case; (5) For urgent cases that need to be prevented from leaving the country at the border inspection station, it can be ruled to take border control and require the public security and border defense organs to assist in border control. The maximum period of border control shall not exceed three months. Of course, these methods can be used alone or in combination. For example, when deciding to confiscate or revoke passports, border control can also be adopted. In addition, only border control measures can be taken against foreigners and personnel from Taiwan, Hong Kong and Macao.
Fourth, we should grasp the linkage and deterrence of restricting exit.
The exit restriction measures are not only the deterrence mechanism implemented by the people’s court, but also the implementation linkage mechanism participated by the public security. The key to how to exert the deterrent effect of the exit restriction measures is the coordination and cooperation of the public security organs, because the courts only take measures, and the implementation department is the public security organs. The detention, collection and revocation of the ID card or passport of the person subjected to execution is relatively easy to implement, and it is difficult for border control. Due to the uncertainty of the exit port of the person subjected to execution, the court is bound to notify all border inspection stations if it adopts border control. It is difficult for the court to do so without the assistance of the public security organ. Therefore, the establishment of information sharing and linkage mechanisms between the people’s court and the exit and entry administration departments and border inspection departments is particularly important. Only by establishing information sharing and linkage mechanisms, can the exit restriction measures truly produce deterrence, so that the exit restriction measures in implementation will not become decorations.
