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ZhongYin Lecture Hall: How Does an Attorney Play a Role During Enforcement? - Analysis on Court’s Enforcement Implementation Procedure and Relevant Objection Review Procedure

2019.05.17  

Author: Zhong Yin Law Firm   

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On May 17, 2019, the third “ZhongYin Lecture Hall” in 2019 was hosted in the meeting room of ZhongYin (Beijing). In the lecture, Mr. Yang Haichao, a specially invested expert, shared his experience in practice on the subject “How does an attorney play a role during enforcement? - Analysis on court’s enforcement implementation procedure and relevant objection review procedure”. Our senior partner Chen Yongxue presided over the lecture. Over 40 attorneys of the firm attended this lecture on site, and over 270 colleagues from head and branch offices watched this lecture via live webcast.

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Mr. Yang Haichao

Mr. Yang Haichao had worked in a district court in Beijing. During his service in the court, he successively worked in commercial tribunal, enforcement implementation tribunal, and enforcement adjudication tribunal, handled more than a thousand civil and commercial cases, enforcement implementation cases, and enforcement adjudication cases, and wrote a number of papers and monographs. After resigning from the court, Mr. Yang Haichao currently serves as the legal director of a listed real estate company. He is responsible for the company's legal affairs, and participated in the company's merger and acquisition projects and major litigation and enforcement cases. He has rich practical experience and outstanding academic ability.

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The lecture is ongoing

Since the courts across the country launched the tough battle to “basically solve the difficulty in enforcement”, the Supreme People’s Court has issued a number of judicial interpretations related to enforcement, as well as a new enforcement system, greatly solving the difficulty in enforcement. Mr. Yang Haichao believes that this is both an opportunity and a challenge for attorneys. The increase in enforcement cases means corresponding increase in attorneys' job opportunities; but unlike the familiar trial procedures, attorneys need to pay more attention to and put more energy in enforcement cases.

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Chen Yongxue

Combining years of experience in handling cases, Mr. Yang Haichao elaborated on how attorneys can play their role in enforcement implementation procedures and enforcement objection procedures. In enforcement implementation procedures, the enforcer’s judgment will affect the progress of enforcement. For example, in cases of vacancy and return of house, some enforcers say that, if it is stated in relevant auction notice that “the court is not responsible for vacancy and return of house”, the bidder may only file a separate lawsuit to claim vacancy and return of house; some enforcers hold the person subject to enforcement liable for the offence of refusal to execute judgments or rulings, therefore facilitate successful vacancy and return of house. In this regard, the core role of attorneys is to, by invoking relevant legal provisions and enforcement procedures, influence enforcers to exercise their discretion in a legal and reasonable way in favor of attorney’s client, and this role is played depending on attorney's communication skill and professional competence, of which professional competence is embodied in detailed analysis on the procedural legal issues and the judgement on ownership of and the examination of and control over subject matter of enforcement. Moreover, Mr. Yang Haichao mentioned a new way - the system of lawyer investigation order. Higher courts in some provinces have begun experimenting with this system, which is worthy an active try in spite of lack of national uniform regulations.

The core of enforcement objection procedure is judges’ power to review enforcement. The parties confront each other in court, and judges adjudicate neutrally, mainly conducting formal review on procedural issues. In this regard, on the one hand, attorneys may propose to or refute to enforce an objection in a timely and appropriate manner by applying their professional competence; on the other hand, they may solve disputes arising from implementation of enforcement through objection to enforcement, promote enforcement by petitioning for non-enforcement, change to or addition of a party, and so on, and by raising objection to jurisdiction, as outsider, and so on, and persuade the enforcer to take enforcement measures by using existing cases.

During the exchange session, the participating attorneys raised some questions about enforcement procedures which they have in handling their respective cases, and Mr. Yang Haichao answered them patiently. The lecture was highly targeted and practical in the sense that Mr. Yang Haichao explained enforcement implementation procedure and enforcement objection procedure in detail and effectively improved attorneys' ability to play a role in different procedures and to promote enforcement, greatly benefiting attorneys of head and branch offices.

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Relevant lawyers

  • Chen Yongxue

    chenyongxue@zhongyinlawyer.com

    -Senior partner