Property preservation objection case of the hottes

2022-08-05
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In the case of property preservation objection of Yongfa twist Weaving Co., Ltd.

gist of the judgment

if a third party raises an objection to the subject matter seized by the property preservation measures of toothbrush tensile testing machine technology introduction and claims ownership, the people's court may resolve the objection by referring to the handling method of objection to the third party in the execution procedure, but the third party has the burden of proof

facts of the case

in the roll to roll process, injection molding and in mold texture molding (IMG) were combined.

on May 26, 2006, the people's Court of Wuxing District, Huzhou City, Zhejiang Province, in the case of the plaintiff Huzhou Linghu Yongchun jet weaving factory and the defendant Shaoxing Mingli materials Co., Ltd., according to the plaintiff's property preservation application, seized 214 bags of white grey cloth designated by the defendant to be stored in Lougong lime factory, Lanting Town, Shaoxing City. On May 28, the outsider of the case, Renhai City Yongfa twist Weaving Co., Ltd., raised an objection, claiming that the seized property had been sold to the defendant, and because the payment for the goods had not been paid, he retained the ownership, and submitted a contract with retention of ownership clauses to request the return of the seized property. After the mediation of the case was concluded, the obligee, Huzhou Linghu Yongchun spray weaving factory, applied to the court for enforcement on July 10, and the Enforcement Agency conducted a hearing and review on the objection of outsiders involved in the case

judgment

after examination, the people's Court of Wuxing district held that the 214 bales of white cloth placed in Lougong lime plant, Lanting Town, Shaoxing City were the property of Shaoxing Mingli Materials Co., Ltd., the person subjected to execution, and the seizure made by the court according to law was not improper. The outsider of the case Haicheng Yongfa twist Weaving Co., Ltd. claimed that the property seized by the court should be retained by it. However, before the expiration of the time limit for adducing evidence specified by the court, it did not provide effective evidence to prove the relevance between the seized property and the subject matter of the "retention of Title Contract", and visually perceived the outer packaging of the seized property, and there was no sign that could prove that it was produced or sold by the outsider, Therefore, the objection raised by the outsider of the case, Haicheng Yongfa twist Weaving Co., Ltd., could not be established, and the court ruled to reject the objection of the outsider according to law. After the ruling is served, the outsider fails to apply for reconsideration to a higher court within the period of validity

evaluation and analysis

I. what procedure should be applied to review the objection of an outsider to property preservation

Article 110 of the opinions of the Supreme People's Court on Several Issues concerning the application of the Civil Procedure Law of the people's Republic of China stipulates that "the people's court shall examine in a timely manner the application for reconsideration made by a party who is not satisfied with the ruling on property preservation or advance execution. If the ruling is correct, the people's court shall notify the party to reject the application; if the ruling is improper, it shall make a new ruling to change or revoke the original ruling", However, the law does not clearly stipulate how to examine the objection to property preservation raised by an outsider. The civil procedure law only stipulates how to deal with the objection raised by an outsider in the enforcement procedure. The property preservation has the nature of pre execution measures. The freezing, sealing up, seizure and other means used in the property preservation have the same purpose as the freezing, sealing up, seizure and other coercive measures taken in the execution, both of which are to realize the right of adjudication and judgment. The former is a safeguard measure and the latter is a means of realization. Therefore, in the period when the outsider objection system in the property preservation procedure has not yet been established, it can be handled by referring to the outsider objection review system in the enforcement procedure. In this case, because the trial was concluded in a timely manner and the execution procedure has been entered, it is completely correct for the execution agency to review it

II. The outsider shall bear the burden of proof of the relevance between the subject matter of the retention of Title Contract and the Court seized property

objects can be divided into categories and specific objects according to their types, quality and quantity. Category objects refer to replaceable objects and specific objects refer to irreplaceable objects. There are differences between the two. Except for unique specific objects, other contract transactions regard objects as categories. After the transaction of category sales is established and Xu Lejiang, Vice Minister of the Ministry of industry and information technology, is detained by the court, if the seller claims to retain the ownership of the category, the seller has the obligation to prove that the subject matter is sold by it. The white cloth in this case belongs to a kind of material, which was placed in Lougong lime plant, Lanting Town, Shaoxing City. The outer packaging of the white cloth has no expansion period to prove that it is the mark produced or sold by Haicheng Yongfa twist Weaving Co., Ltd. within the time limit for proof specified by the court ruling hearing, Haicheng Yongfa twist Weaving Co., Ltd. failed to provide effective evidence (such as warehouse receipt) to prove the relevance between the seized property and the subject matter of its "retention of Title Contract". According to the rule of "who advocates who gives evidence", Haicheng Yongfa twist Weaving Co., Ltd. shall bear the legal consequences of failing to provide evidence

the case number is [2006] Hu Wu Zhi Zi No. 1002

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