Dispute over execution objection

[case facts]

Chen funded the construction of fishing boat X. Due to policy reasons at the time of construction, natural person could not obtain the ownership of the fishing boat. Therefore, Chen, through negotiation with company A, attached the fishing boat to the name of company A, and Chen himself was responsible for the construction, use and operation of the fishing boat. After the construction and launching of the fishing vessel, Chen shall use the vessel for fishing operations. According to the attachment agreement between Chen and a company, Chen shall pay attachment fee to a company every year, and a company shall collect and deliver the subsidy to Chen for the fishing boats granted by the fishery department every year.

Subsequently, in the normal operation of Chen, the fishing boat was sealed up and detained by the court, pending execution. It is understood that the actual controller of a company, legal person li, and a company have incurred external debts. The creditor Du applied to the court to seal up and detain the involved fishing boats according to law, and the fishery subsidies based on the involved fishing boats were also frozen in the fishery department.

When the team I am in accepts Chen to entrust, the dispute between creditor du and a company controller, legal person li and a company has been made by the court effective judgment, and has entered the stage of compulsory implementation. After accepting authorization, immediately to the Shanghai maritime court execution objection, after the ruling has rejected the opposition, immediately filed a v. the dissent of enforcement filed for ordered to stop the execution of the boat and confirm the boat to the XXL, ordered to stop the execution of fisheries subsidies under the boat and confirm all fisheries subsidies for XXL.

[agency opinion of first instance]

1. The fishing boat involved in the case was built by Chen with full investment. All the shipbuilding money has been settled, and Chen himself handled insurance for the fishing boat and used the fishing boat. Therefore, the ownership of the involved fishing boat belongs to Chen.

2. According to the provisions of article 4 of the interim measures for the management of the special fund for subsidize the price of fishery refined oil formulated by the ministry of finance and the ministry of agriculture, subsidies are granted to fishery producers, including fishermen and fishery enterprises engaged in domestic Marine fishing, pelagic fishing, inland fishing and aquaculture and using motor fishing boats in accordance with the law. So, first of all, the beneficiaries of the subsidy are the fishery producers that are clearly stipulated in the regulations, that is, the actual construction and production users of the vessel. Therefore, as the actual contribution and user of the involved fishing boat, Chen claimed that the ownership of diesel subsidies has a full, complete and clear legal basis. Second, the nature of the subsidy belongs to the legal fruits under the ship, which refers to the fruits arising from legal provisions or legal ACTS, mainly as the use of the original goods. The subsidies of the fishing boats involved in the case were generated according to the interim measures for the management of the special fund for the subsidy of the price of refined oil in fishery formulated by the ministry of finance and the ministry of agriculture, as well as Chen's actual production and operation of the fishing boats. Therefore, according to the provisions of article 116, paragraph 2 of the property law, if the parties have an agreement on legal fruits, the fruits shall be obtained in accordance with the agreement. In addition, according to article 3 of the interim measures on the administration of the special funds for subsidizing the price of refined oil in fishery, subsidy funds refer to the special funds allocated by the central financial budget to subsidize the consumption cost of refined oil increased by fishery producers due to the adjustment of the price of refined oil. Thus it can be seen that the purpose of subsidies provided by law is to cover the costs of actual production and operators, rather than pure welfare. Chen, as the actual contributor and builder of the fishing boat involved, as well as the actual operator and user, is also the actual expense of fuel cost, so the fuel subsidy should also be directly subsidized to Chen.

3, According to the supreme people's court about the applicable law of the People's Republic of China property law (1) the explanation of some issues, "the provisions of article 18, paragraph 1 of article one hundred and six of the property law of the first paragraph" the assignee when accepting the realty or chattel, "refers to the complete real estate real right move is registered or chattel in accordance with the delivery. Therefore, the application of the third party in good faith is the protection provided by the law to one party in the transaction. Between the creditor du and company A, there has not been any trading behavior directly related to the fishing boat involved in the case, such as buying, selling or leasing. Nor has there been any legal action to establish or change the property rights of the fishing vessel involved. Therefore, du is not a third party in the transaction process protected by law, and the third party in good faith system cannot be applied.

4, According to the supreme people's court of the people's court for execution objection and provisions on some issues of reconsideration cases, the supreme people's court on some specific problems in the current civil trial work ", etc in accordance with the provisions of the objection to dispute and examine the entity to the execution objection proceeding should review: one is an outsider to execute the underlying legal real entity rights, mainly is the real right; Second, the entity rights enjoyed by the outsider are enough to exclude the enforcement of the subject matter, and ordinary creditor's rights generally do not have the priority effect. Therefore, combined with the case evidence materials, XXL and use the fact that fishing boat, realistically XXL diesel subsidies for fishing vessels and fishing boats involved is enjoyed by the complete ownership, and between Du  and shell company is the ordinary creditor's rights, set on the boat and subsidies have no real right, based on the principle of creditor's rights real right, should be, Du also cannot against Chen.

5. To sum up, Chen xx enjoys complete ownership of the fishing boat X under the current name of a company And all subsidies on the fishing boat, which is sufficient to exclude du's application for compulsory execution according to law.

Opinions of the court of first instance

1. The attachment agreement can only bind Chen and company A and shall not be used against any third party outside the case.

2, In our country for fishing vessels engaged in fishing operations to ship tool indexes for regulation, acquiring ownership of fishing vessel shall obtain the state administrative approval of the competent authority of the first ship web tools index, and according to ship tool indexes for the ownership according to law to register the fishing boat ownership, registered in the administrative approval of the competent authority has not obtained the case, the parties by way of building up to obtain the ownership of the hull, and cannot obtain the full ownership of the fishing boats.

3, Affiliated agreement binding agreement of the parties only and is valid only in the agreement between the parties, by agreement between the parties is diesel subsidies allocated a specific sum, rather than the policy subsidy itself, does not change the administrative authority to the registration of the fishing boat owners subsidies in accordance with the provisions, also belong to the nature of the subsidy policy can't change the diesel subsidies. Due to the reasons of company A, the agreement on allocation of diesel subsidy between company a and Chen cannot be fulfilled, which belongs to another legal relationship, and Chen may separately claim from company A.

[judgment of the court of first instance]

Chen does not enjoy enough civil rights to exclude compulsory execution, so all Chen's claims were rejected.

[opinion of appeal agent]

1. The appellant Chen actually contributed to the construction, possession, use and profit of the involved fishing boat. The ownership right stipulated in the property law includes possession, use, profit and disposal.

2. Article 9 of the maritime law "no confrontation against a third party without registration" is a provision on the property right of a ship, that is, whether the ownership transfer is established according to law. The dispute between the appellee du and the third party a company was not caused by the ownership dispute of the fishing boat involved, which resulted in the debt based on the ownership right. The court of first instance misunderstands the applicable premise that "no third party can be confronted without registration". The court of first instance held that the appellant could not obtain the ownership of the ship at most, that is to say, the concept of ownership was mechanically divided, which also led to the embarrassing situation that neither the appellant nor the third party in the first instance could enjoy the complete ownership of the fishing boat.

3. Diesel subsidies are given to fishery producers according to law, but the third party a company does not meet the subsidy standards. According to the provisions of article 4 of the interim measures on the administration of the special fund for subsidize the price of fishery refined oil, subsidies are granted to fishery producers, including fishermen and fishery enterprises engaged in domestic Marine fishing, pelagic fishing, inland fishing and aquaculture and using motor fishing boats in accordance with the law. That is to say, the recipients of the subsidy are the fishery producers, i.e. the actual construction and production users of the vessel, as specified in the regulations. Second, diesel subsidies are intended to cover costs lost by actual operators, not policy benefits. The appeal is the actual contribution and user of the fishing boat involved, so the appellant claims that the ownership of the diesel subsidy has sufficient, complete and clear legal basis.

4. The court of first instance held that the appellant Chen and the third party a company of first instance were "distributing the specific ant of diesel subsidy by agreement, not the policy subsidy itself, which cannot change the nature of diesel subsidy as a policy subsidy", which was too one-sided and formal. The attachment agreement stipulates that "the diesel subsidy shall be owned by Chen en law", which is an agreement between the parties on the ownership of the policy-based subsidies that may arise in the future, and the policy-based subsidies will eventually be paid to the third party in the form of money. The appellant did not dispute whether the diesel subsidy was a policy subsidy. The appellant emphasized the ownership of the diesel subsidy after it was issued, rather than the nature of the subsidy. In addition, the third party also recognized that the ownership of diesel subsidies belongs to the appellant.

5, According to the supreme people's court of the people's court for execution objection and reconsideration cases provisions on some issues of article 24, the supreme people's court on some specific problems in the current civil trial work "in the first division chief judges the supreme people's court civil trial xin-wen cheng on December 24, 2015 minutes" nine, questions about execution objection lawsuit ", etc. The provisions of laws and regulations with the spirit of the trial, the appellant has one and only "an outsider execution objection lawsuit" a means of judicial relief to confirm its enjoy the ownership of the mark. That is to say, an outsider who enjoys the ownership of the subject matter of execution can only remedy the case through the execution objection lawsuit of an outsider, and shall not file a separate lawsuit to confirm the right. Therefore, in the execution objection lawsuit of an outsider, it shall find out the ownership of the substantive right of the subject matter of execution, and whether the substantive right can exclude the compulsory execution.

Since building 6, the boat has always occupied by the appellant XXL legal and business, even if the appellant affiliated behavior is a kind of flaw, but if because of the defects, and will be the appellant Du  to the third person between a company And the creditor's rights and debts of all passed on to the appellant XXL, obviously violate the civil law basic fairness.

Opinions of the court of second instance

1. The acquisition, transfer and extermination of the ownership of ships in China's laws adopt the mode of registration confrontation, but not the mode of effective registration. Therefore, the ship ownership registration certificate only has the effect of presumption of rights, and the actual owner can request confirmation of the actual owner by proving that the record of the ship registration certificate is inconsistent with the actual status of rights and that it is the actual owner. In addition, it should be pointed out that in the mode of antagonistic registration, the unregistered ownership of a ship does not have the effect of antagonizing a third party, but the third party shall be understood as the counterpart of the real right relationship with the same ship, excluding the general creditor of the owner recorded in the ship ownership registration certificate. Therefore, even if the ship registration does not match the actual status of rights, the actual owner of the ship is able to fight against the general creditors of the registered shipowner.

2. According to relevant regulations, the subsidy source for the price of refined oil in fishery is arranged by the central budget, which is used to subsidize the consumption cost of refined oil increased by fishery producers due to the adjustment of the price of refined oil. The objects of subsidies are fishermen and fishery enterprises engaged in domestic Marine fishing, pelagic fishing, inland fishing and aquaculture and using motor fishing boats in accordance with the law. Therefore, the price subsidy of fishery refined oil is a subsidy given by the state to fishery producers to make up for their actual production and operating costs. Chen is the actual producer or operator of the ship involved in this case. Based on other facts of this case, Chen shall also enjoy the subsidy for the price of fishery refined oil.

[judgment of the court of second instance]

Chen's rights and interests are enough to exclude the compulsory implementation of the price subsidy for the involved ships and fishery products. The appeal request has factual and legal basis to support. The judgment annulled the judgment of first instance, and the subsidies under the fishing boat and fishing boat involved could not be implemented. The subsidies under the fishing boat and fishing boat were confirmed to be owned by Chen.

【 lawyer's comments 】

The core of execution objection lawsuit lies in: first, it confirms the authenticity and legality of the right of the outsider to the subject matter of execution. Secondly, the entity rights enjoyed by the outsider can be enough to exclude the enforcement of the subject matter. In such cases, the court needs to take the initiative to find out whether the outsider has the real and legal right to the subject matter of execution, whether the outsider has the real right and some legal priority, no matter whether the outsider has filed the right confirmation claim at the same time. In addition, when evaluating whether the rights of an outsider in a case can exclude compulsory execution, it is necessary to compare the advantages and disadvantages of the nature and effectiveness boundaries of the rights enjoyed by the outsider (the dissenter) and the applicant for execution, and make a comprehensive judgment based on existing laws and regulations.