No matter it is personal loan or loan from bank, or creditor's rights caused by all sorts of contracts, in some cases of debt collection, one thing the client cares about when looking for a lawyer is "can the lawyer help me get the money back?" and "If opponent has no money, is it useful to sue opponent? "
In many cases, such questions are difficult for lawyers to answer. If the evidence materials in the hands of the parties are complete and free from falsehood, the lawyer can analyze the case based on objective evidence and make some pre-judgment on whether the claims can be supported by the court, which is also known as "whether the lawsuit could be won". But getting the winning judgment and getting the money are two concepts in China.
After winning a lawsuit, many people without litigation experience take it for granted that the court has the obligation to help them get the money back. To be honest, this idea is wrong in reality!
After winning the lawsuit, if the other party does not pay and you do not apply to the court for enforcement, the court will not take the initiative to manage it. After you apply to the court for enforcement, whether the money of the judgment can be obtained quickly and smoothly depends on the debtor's property status.
Depending on the circumstances of the case and the debtor's property, the possibility of obtaining the money after winning the case is also different.
I、 Whether the implementation can be carried out smoothly can be roughly divided into three situations
1. The debtor has enough property (especially funds) to repay the debt, and the personal credit and business operation are in good condition.
In this case, the reason for not paying voluntarily is usually because the two parties have misunderstandings or disputes during the performance of the contract, not because they are unable to pay.
After the amount of the debt is determined by the court judgment, it will be paid voluntarily without even applying for enforcement. Even if the payment is not made voluntarily for various reasons, when the creditor applies to the court for enforcement, there will usually be no obstacle to enforcement because there are enough assets. Especially when the cash assets in the account are sufficient, the enforcement will be more convenient, and it will be OK to directly transfer to the account.
2. The debtor has certain assets, but is not easy to realize, and personal credit and business conditions are difficult.
In this case, the debtor's assets may still be sufficient to repay the debt, but the cash is insufficient, which may be property, vehicles, goods and other assets. Lack of cash and difficulties may be the reason why the debtor failed to pay on time.
When the debtor is in this state, it is better for the creditor to sue in time and consider applying for the preservation and sealing up of the debtor's property. To prevent the debtor from transferring assets during the litigation, resulting in difficulties in the final execution.
In this case, after the application for enforcement, due to the shortage of cash assets, the court should decide whether other assets can be implemented easily and realized quickly. Implementation may encounter obstacles. However, as long as the assets are in place and are not insolvent, the ultimate creditor's debt should still be realized.
3. The debtor does not have the corresponding assets to repay the debt and is unable to perform the judgment.
The lawyer is responsible for helping the client represent the case, the court is responsible for hearing the case, and the money has to be paid from the debtor. If the debtor really has no money, even if the court makes a successful judgment, it may lead to the temporary inability to realize the creditor's rights. If it is really impossible to enforce, the court can only suspend the enforcement temporarily. It is also very helpless that this situation really occurs!
II、 The three mistakes that are easy to make when applying to the court for execution directly affect the effect of execution
1. It is necessary to apply to the court for enforcement within the statutory time limit, otherwise the judgment may be expired.
According to the provisions of the current civil procedure law, the period for applying to the court for compulsory execution is two years. The suspension and interruption of the application for the limitation of execution shall be governed by the provisions of the law on the suspension and interruption of the limitation of action. However, lawyer Yang suggested that the application for enforcement should be carried out as soon as possible, and the court has already filed a lawsuit. As the saying goes, even if the face is torn, the other party does not perform the judgment, there is no need to repeatedly urge, and the court should apply for enforcement as soon as possible.
Unlike the prosecution, the current application for enforcement does not require the applicant to prepay the enforcement fee, which does not increase the cost of safeguarding rights for the applicant.
2. Applying for enforcement is not a matter of submitting an application to the court.
Some people handed in the enforcement application and went back to wait for the money. Maybe you can really wait to get money when you encounter a case that is easy to execute. However, in case of a case that is not easy to implement, if you just sit and wait, you may not come left or right.
Lawyer Yang would like to remind you that you can't rely on the court to apply for enforcement. You should provide the court with clues to the property to be enforced as much as possible, especially in the case of the second and third cases mentioned above. Whether there is an appropriate clue to enforcement often determines the smooth progress of enforcement. Moreover, it is not a matter of mouth to say whether the person being executed has money or no money. It depends on the evidence.
Of course, the court is also obliged to take the initiative to inquire about the bank account number and property of the person subjected to execution. However, it may not be checked for a certain period of time, and the original assets may have been transferred when checking again, so if you can provide it, you must try to provide it.
Moreover, the applicant should take the initiative to contact the judge to communicate and understand the progress and problems of implementation. So many cases are piled up in the hands of the executive judge, and the judge is also very busy. It's no harm for you to take the initiative.
3. The person being enforced really has no money. Is it useless to sue or apply for enforcement?
Unless the person to be enforced is a company and has entered bankruptcy proceedings. Otherwise, even if the property to be enforced cannot be found temporarily, which leads to the temporary inability to enforce, it does not mean that the debt will never be recovered.
Personally, if there is no money now, it does not mean that there will be no money in a few years. If there is no clue of property now, it does not mean that it will not be found in the future.
As far as the enterprise is concerned, the temporary bad operation does not mean that there is really no turning point; If the enterprise has no money, if the shareholders make false contributions or withdraw funds or transfer assets, there is also an opportunity to hold the shareholders accountable.
In short, there are still opportunities. In addition, the current trend shows that the PRC Supreme Court has made great determination to solve the problem of difficult implementation. In the past two years, the intensity of pregnancy is also increasing, and some achievements have been achieved through restricting consumption and the blacklist system of dishonest person subject to enforcement. There are some unsolved enforcement cases for many years. There are also many cases where "Laolai" (long-time dishonest person subject to enforcement) went to the court crying and actively repaying the money after he was restricted from getting on the plane and unable to get a loan. If such measures become more and more effective in the future, the difficulty of implementation should be effectively alleviated.
However, if the parties feel that the debtor is unable to repay, and think that the litigation or enforcement is futile, they give up the opportunity to sue or apply for enforcement, resulting in their claims exceeding the limitation of action. In the future, if you find that the other party is rich, but find that the creditor's rights lawsuit cannot be won in the court, or the judgment has expired and cannot apply for enforcement, it will be too late to regret.