Contents
 
 
      Part I: How can a party apply for execution?
      The conclusion of the lawsuit, even to the successful party, doesn’t indicate the epilogue. The court’s judgment or letter of mediation only stipulates the rights and obligations both parties have to fulfill. Some persons involved only give weight to the court trial rather than the execution. In case one party refuses to fulfill his or her obligations, the other party has the right to apply for the court’s enforcement, but if the application is beyond the legal time limit, the judgment may be just like a mere scrap of paper. Hence, execution for the judgment should also be paid special attention on.
       Part II: What kinds of legal instruments can be applied for execution?
       In divorce cases, the legal documents that the party can apply for execution of refer to those documents in effect or having the characters of settlement. In China, we have the second trial system, so the judgment should enter into effect in case the party doesn’t lodge an appeal within the legal time limit. After the effectiveness, the party can apply for the court’s enforcement with the judgment. To the divorce cases, such execution mainly refers to property settlement, visits of issue and so on.
      (1) The judgment or letter of mediation with the character of settlement on money.
For instance, the judgment stipulates that the defendant should pay 300,000 Yuan for the housing depreciation payment to the plaintiff or pay 5000 Yuan to the plaintiff for the economic aids within 10 days after the judgment enters into effect. Such judgment has the character of settlement, so if one party refuses to fulfill the obligations, the other party can apply for the court’s execution.
      (2) The judgment or letter of mediation with the character of settlement on property entity.
      For instance, the judgment stipulates that the female party is possessed with the 29-inch Panasonic colorful TV set, if the male party holds back the TV set, the female party can apply for execution.
      (3) The party can apply for execution for the purpose of completing the procedures of settlement.
      For instance, the court has made the judgment that the male party possesses the premises, while the female party gets the housing depreciation payment from the male party. As the property right is owned by both parties, the procedures of transfer need the female party’s cooperation. If the female party refuses to deal with the procedures of transfer, the male party can apply for the court’s execution.
      (4) The party can apply for execution for the right of visits.
      After divorce, only one party can have the child-care right. In fact, the party may often meet with interference from the other party or relatives of visiting the child. Pursuant to Article 32 of The Supreme People’s Court’s Interpretation of certain issues concerning the Application of Marriage Law of People’s Republic of China, it puts: Article 48 of Marriage Law stipulates that the party can apply for the court’s enforcement in case the other party refuses to execute the judgment concerning visits of issue. The relevant mandatory measures include the court can impose detention or a fine on the person who interferes the party’s lawful right of visits. Any act of visiting children by force is forbidden. The party is forbidden to restrict personal freedom of children or visit children by force.
       Part Ⅲ How can a party transfer the other party’ bank deposit or equities in the stock market?
      As for bank deposits, the party can go through procedures of transfer at the relevant bank with the court’s judgment/letter of mediation and letter of application for execution, then the bank deposits shall be transferred to the court’s account or the applicant’s assigned account. As for stocks in the share market, the court shall seize the party’s stock account, which means the stocks can only be sold out instead of withdrawing the movable capitals in the account. Another measure is that the court can enforce the party to sell stocks for cash and transfer money into the applicant’s assigned bank account.
       Part Ⅳ What are the procedures of transferring the ownership of a house property?
It is relatively more complicated to conduct the procedures of transfer of the property right, as the procedures are usually involved with several bureaus and departments. For instance, in case the loans for the premises haven’t been paid off, the persons involved have to go through the concerning procedures of transfer in the bank and the administrative center of the accumulation fund, even if the persons have the court’s judgment or letter of mediation. In practice, the bank and the center require both parties showing up in person to go through the concerning procedures, if one party refuses to be present, it would be really difficult to realize the transfer.
       In case no bank loans, both parties or one party can go through the concerning procedures of transfer at the real estate trading center with the court’s judgment or letter of mediation.
       Part Ⅴ How can a party ask for the other party to pay the child-care expense?
Usually, the person involved may only agree to pay for the cost of maintenance per month to the assigned account for the children rather than to hand over when visiting the children, in order to avoid writing the receipt. The banker’s reference can testify that the party has fulfilled the obligation.
       Part Ⅵ What will one party do when the other party doesn’t accommodate?
In fact, what the party concerns most is not that the other party yells “No money, one life” but the other party really possesses nothing. Under such circumstance, the court is also at its wit’s end and the applicant has to reapply for execution until the other party owns some possession. However, in case the other party conceals property on purpose in order to shirk duty, the party can exert pressure upon the other party from these two aspects:
      First, request for the penalty interest if the other party postpones the execution.
Subject to the relevant laws and regulations, if the other party postpones the due obligation, he or she should be charged with the contract-breaking fees as calculated by two-fold of the current loan interest rate. As long as the other party is alive, 20 years or even 30 years, he or she cannot shirk the duty, even if the legal execution has no stipulated time limits. Anyway, no one is willing to have a life to be served by the court day and night.
      Second, cooperation for the court’s investigation on the other party’s hints of property.
      To some extent, every court has to conduct tens or hundreds of cases in hands, so the court runs short of hands to execute each case. Therefore, the party involved should take some measures to look for the hints of the other party’s property for the purpose of achieving one’s own rights, if necessary, the party involved can turn to some professional investigatory organizations for assistance. In case the party involved feels the court’s execution has less power or is inclined to postpone on purpose, I suggest the party involved should communicate more with the judge in charge to avoid any misunderstanding between each other. In the event that the judge himself really drags his feet in conducting the case, the party involved can report to his leader or other supervisory institution for help.
       Part Ⅶ What is the time limitation applying for execution?
       The conclusion of the lawsuit with the winning judgment is by no means the epilogue. Although the court judgment is the validity of enforcement, if the party involved doesn’t exercise this right, the party maybe achieves nothing. Subject to the relevant laws, the party, in case a natural person, he or she can apply for the court’s enforcement provided that the other party refuses to fulfill the obligation within one year; while in case a unit, the time limit is 6 months. In other words, even though the party wins the lawsuit, he loses the right of applying for the court’s enforcement beyond 6 months or 1 year. In conclusion, I’ll emphasize that both judgment and execution are of great importance; otherwise in case the application for the execution is beyond the time limits, it indicates that all your efforts go for nothing.
       Part Ⅷ What are the materials needed for an application of execution?
       In applying for the court’s execution, the documents should be submitted:
      1) The effective judgment/the letter of mediation
      2) The applicant’s ID card
      3) The letter of application
       Part Ⅸ What are the cases unacceptable to apply for the execution in the court?
In divorce case, there are two kinds of cases that are unacceptable to apply for the court’s enforcement.
      (1) Questions concerning Hukou’s transfer by force.
Hukou’s transfer by force is always a tough question for mediation in divorce cases.       Generally, the tough questions concerning this are connected with the following two aspects:
      First, the party without the property right refuses to transfer the Hukou.
      For instance, Mr. Zhang and Mrs. Li registered for divorce and Mrs. Li is provided with the premises. After the written judgment takes effect, Mr. Zhang refuses to move out his Hukou, bringing some unnecessary inconvenience to Mrs. Li, especially on selling the premises. If Mrs. Li appeals to the court for moving out Mrs. Zhang’s Hukou or applies for the court’s enforcement, generally, the court shall not accepted for the reason that the public security organ is responsible for the transfer of Hukou, while such request is sure to be refused by the public security organ, their reason for which is that pursuant to the concerning regulations of Hukou management, the police security organ has no legal grounds to force the person involved to move out Hukou owing to divorce cases.
      So, how can you solve this kind of tough problem? As a thumb of my rule, I think the most effective way of solving the problem is the connection between rights and obligations. To be specific with the above-mentioned case, the court adjudicates Mrs. Li possesses the premises; meanwhile, she is supposed to make the housing depreciation payment to Mr. Zhang, for example, 400,000 Yuan. If Mr. Zhang refuses to move out his Hukou, Mrs. Li can take this as an excuse for fulfilling her obligation, such as Mrs. Li pays Mr. Zhang 300,000 Yuan and pays off the rest until Mr. Zhang moves out his Hukou. Of course, such kind of countermeasure is by no means a well-advised plan, however, there are no legal grounds for forcing the other party in the divorce case to move out Hukou from the original premises in the current social system.
      Second, questions concerning the transfer of issue’s Hukou by force.
For instance, Mr. Zhang got divorced with Mrs. Li and Mrs. Li bears the child-care responsibility. Before divorce, the child’s Hukou is at Mr. Zhang’s place, but now Mrs. Li requests to move it out to her place. Under such circumstance, the procedures of transfer can be conducted unless both parties have come to unanimous agreements. However, in case Mr. Zhang refuses to cooperate, Mrs. Li can go through the concerning procedures at the local public security organ where her census register is located with the letter of judgment/mediation or the divorce agreement. Generally, the public security organ shall cooperate with the concerning procedures.
      (2) When exercising the right of visits,
      After divorce, when exercising the right of visits, the person involved may often meet with the other party’s interference, because to some extent divorce may have influenced feelings of one of the parties or both parties for some time in life. It is just out of this kind of feelings that the person involved may encounter difficulty in visiting his or her children. For instance, the other party may on purpose not pick up the calls of the person involved for visits or even deprive his or her right of visits and so on. Of course, the other party has obviously violated the person’s right of visits. However, thinking of the healthy development of children and less harm on their immature hearts, the person involved is not allowed to take the child out by force, but he or she can apply for the court’s assistance for getting rid of the other party’s vicious interference, in order to guarantee the legal visitation right. Sometimes the court may even take the measure of detention on some serious “trouble-creators”,
       Part Ⅹ How much money does the execution procedure cost?
      According the article 8 of The People’s Court charge methods for the court lawsuit fees, the standard of charge is as follows:
      The party applying for the execution shall pay 50 Yuan when the amount claim is less than 10,000 Yuan while the part exceeded is between 10,000 Yuan and 500,000 Yuan, the party shall pay the expense at the rate of 0.5%. If the amount of claim is over 500,000 Yuan, the applicant shall pay the expense at the rate of 0.1%.