2024年4月6日发(作者：)

香港法院英文求请信

Request:

The applicant refuses to accept the execution (200X)

famin Yizhong Zi No. xxxxx case of the Hong Kong court, and

now raises an objection to the execution:

1. Request the suspension of execution of this case;

2. Request that the wrongly executed funds be returned to

highway Co., Ltd. (the company is the construction unit of the

applicant's construction project and the guarantor in the

process of litigation).

Facts and reasons:

1、 The applicant is fully entitled to raise an objection to

the implementation. After the applicant filed an application

for objection to execution, the court's executive board

questioned the applicant's qualification to apply for objection

to execution on the ground that only a third person was

qualified to raise an objection to execution. The applicant

believes that, According to Article 202 of the latest

amendment to the Civil Procedure Law of the people's

Republic of China: "If a party or interested party believes that

the execution act violates the provisions of the law, it may

raise a written objection to the people's court responsible for

execution. If a party or interested party raises a written

objection, the people's court shall review it within 15 days

from the date of receiving the written objection. If the reason

is tenable, it shall rule to revoke or correct it; if the reason is

not tenable, it shall rule to reject it. If the party or interested

party is not satisfied with the ruling, it may serve it by itself

Apply for reconsideration to the people's court at the next

higher level within ten days from the date of the decision. "

Therefore, the applicant, as a party to this case, is fully

qualified to apply for enforcement objection, and there are no

legal obstacles. It is inappropriate for the court to assume that

the applicant is not the third party in the case and has no right

to raise objections.

2、 This case has passed the retrial procedure, and there

are pending lawsuits with the applicant for execution, so the

execution should be suspended. (2015) there was an error in

the judgment of famin Yizhong Zi No. -, which could not be

recognized by the applicant. The applicant applied to the

Supreme People's court for retrial, and the case has been filed

(case No. (2015) minshen Zi No. notice of accepting the case);

At the same time, the applicant and the execution applicant

have filed a separate lawsuit against XXX in the Municipal

People's court for compensation, which has been accepted by

the court. There is a problem of exercising the right of set off

after the case may win, According to Item 1 of Article 7 of the

provisions of the Supreme People's Court on Several Issues

concerning the correct application of the measures for

suspension of execution (FA FA Fa [2002] No. 16): "the

people's court may decide to suspend the execution in

accordance with its functions and powers in one of the

following circumstances; (1) the higher people's court has

accepted the execution dispute case and is handling it", so

Nanyang intermediate people's court should consider the

actual situation of this case to suspend the execution.

The current court does not agree to suspend the

implementation on the grounds that the cases accepted by

the law are disputed cases in the implementation rather than

cases with entity errors. The applicant believes that this

understanding is wrong, completely taken out of context and

contrary to the spirit of the law. Because the disputes in the

implementation and the errors in the entity point to the same

case, not two or three cases.

3、 Understanding the legal status of highway Co., Ltd.

from the perspective of creditor's rights, the court should not

directly enforce the company.

1. The creditor's rights of the applicant have not expired.

According to the construction practice, the construction unit

shall provide guarantee to the construction unit during the

construction process. The guarantee period is the liability

defect period of the project quality, and the defect period is

two years from the date of the completion acceptance of the

project (based on the construction contract of construction

project). Now, as the guarantor of the construction project

quality of the highway Co., Ltd., the applicant's guaranteed

creditor's rights have not expired, and there is still a liability

defect period, According to Article 61 of the provisions of the

Supreme People's Court on Several Issues concerning the

execution of the people's Court (1998) No. 15, "if the person

subjected to execution is unable to pay off his debts, but has

due creditor's rights to a third person other than the person in

this case, the people's court may, at the application of the

person applying for execution or the person subjected to

execution, send a notice of performance of the due debts to

the third person (hereinafter referred to as the notice of

performance)". This amount does not belong to the matured

creditor's rights at all, and has no execution conditions.

2. Even if the creditor's right is due, it cannot be ruled to

be directly enforced. According to the previous law, even if the

applicant enjoys the due creditor's rights against the highway

Co., Ltd., the court has no right to enforce it and can only issue

a notice.

3. XX Co., Ltd. has raised an objection to the execution,

and the court shall immediately stop the execution, and has

no right to review. According to Article 62 of the provisions of

the Supreme People's Court on Several Issues concerning the

implementation of the people's Court (1998) No. 15, "the

objection of the third party to the notice of performance shall

generally be raised in writing. If it is raised orally, the Executor

shall enter it in the written record and be signed or sealed by

the third party". Article 63 stipulates that "if a third party raises

an objection within the period specified in the notice of

performance, the people's court shall not enforce the third

party and will not review the objection raised". Now that the

highway Co., Ltd. has raised a written objection to the

implementation, the court should immediately implement the

reversal and return the money to the highway Co., Ltd.

4. The document issued by the applicant for highway Co.,

Ltd. cannot be used as the basis for court enforcement. The

correspondence between the applicant and highway Co., Ltd.

can only be valid in one of the two, which is determined by the

relativity of the two, and does not involve a third person;

Moreover, some transactions between the two may not have

inevitable legal effect. Therefore, the court made a mistake to

enforce the highway Co., Ltd. on this ground.

4、 Understanding the legal status of XX Co., Ltd. from the

perspective of guarantee, the court has no right to directly

enforce the company. As the construction unit of the

construction project set up by the applicant in the city, the

guarantor in the litigation process is not the subject of the

lawsuit in this case and cannot be directly enforced by the

court.

1. It is seriously illegal to take litigation preservation

measures without providing any guarantee. In the process of

litigation with the applicant, without providing any effective

guarantee, the court of first instance adopted litigation

preservation measures, illegally freezing the applicant's

account and deposit of more than 2 million yuan, which is a

serious violation of the civil procedure law. In the case of

adverse social impact, the court actually took advantage of the

lack of legal knowledge of ordinary people to require the

highway Co., Ltd. to provide a guarantee, so its guarantee had

a great problem, and now it is not convincing to enforce it on

this ground.

2. Directly ruled that the execution of XX Co., Ltd. was

improper. Although the highway Co., Ltd. provided the

guarantee, according to the reply of the economic tribunal of

the Supreme People's Court on whether the party providing

the guarantee for the respondent during property

preservation should clarify its obligations in the judgment or

mediation and whether the guarantor's property can be

directly executed in the execution procedure, and article 85 of

the provisions of the Supreme People's Court on several issues

of the people's court's execution (Trial), The people's court has

the power to order the execution of the property of the

guarantor within the scope of the suretyship liability only

when the person subjected to execution has no property to

enforce or his property is insufficient to pay off his debts. Now

the execution has just begun, and our company is not

completely unable to perform, that is, it is ruled that the

guarantor in the direct execution lawsuit does not comply with

the legal provisions.

5、 The excess deduction of deposits of highway Co., Ltd.

is improper. Regardless of whether the judgment is right or

wrong, even according to the final judgment of the higher

people's court, the amount payable by the applicant is not

enough, but the court deducted yuan from the account of

highway Co., Ltd., which is a full amount of yuan more than the

judgment, which belongs to the implementation of exceeding

the standard, which is obviously inappropriate.

To sum up, the applicant believes that Nanyang

intermediate people's court's execution behavior is improper,

and we request your court to grant the application, so as to

safeguard the legitimate rights and interests of the applicant.

Sincerely

Applicant: XXX Co., Ltd

agent:

XX, XX, XX