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涉校園貸在校生可不納入失信名單
2020-01-06 22:32  www.phpfang.com

  1月2日,《最高人民法院關于在執行工作中進一步強化善意文明執行理念的意見》(以下簡稱《意見》)發布。《意見》提出,對納入失信名單和限制消費措施“嚴格依法、審慎適用”,對于決定采取懲戒措施的被執行人,可以給予其一至三個月的寬限期。全日制在校生因“校園貸”糾紛成為被執行人的,一般不得對其采取納入失信名單或限制消費措施。

On January 2, the Supreme People's Court's Opinion on the Further Strengthening of the Concept of the Implementation of Good Will and Civility (hereinafter referred to as the Opinion) was issued. The Opinion states that persons who decide to take disciplinary measures may be granted a grace period of one to three months for inclusion in the list of breach of trust and measures to limit consumption \"strictly according to law and prudently apply \". If a full-time student becomes an executor due to a dispute over \"campus loan \", he or she may not be included in the list of breach of trust or consumption restriction measures.

  值得關注的是,《意見》要求準確理解限制被執行人子女就讀高收費學校。限制被執行人子女就讀高收費學校,是指限制其子女就讀超出正常收費標準的學校,雖然是私立學校,但如果其收費未超出正常標準,也不屬于限制范圍。

It is of concern that the Opinion calls for an accurate understanding of the restrictions on the children of the person subjected to execution to attend high-paying schools. Restrictions on the attendance of children of persons subject to execution in high-paying schools refer to those whose children are restricted from attending schools that exceed the normal rate of fees, although they are private schools, which are also outside the limits if their fees do not exceed the normal standard.

  《意見》指出,人民法院在采取此項措施時,應當依法嚴格審查,不得影響被執行人子女正常接受教育的權利;在新聞媒體對人民法院采取此項措施存在誤報誤讀時,應當及時予以回應和澄清。人民法院經依法審查,決定限制被執行人子女就讀高收費學校的,應當做好與被執行人子女、學校的溝通工作,盡量避免給被執行人子女帶來不利影響。

《 The Opinion states that the People's Court shall, when adopting such measures, strictly examine them according to law, and shall not affect the right of the children of the person subjected to execution to receive education normally. If a people's court decides to restrict the children of the person subjected to execution from attending a high-paying school after examination according to law, it shall do a good job of communicating with the children and schools of the person subjected to execution so as not to adversely affect the children of the person subjected to execution as far as possible.

  被限制消費的個人因本人或近親屬重大疾病就醫,近親屬喪葬,以及本人執行或配合執行公務,參加外事活動或重要考試等緊急情況急需赴外地,向人民法院申請暫時解除乘坐飛機、高鐵限制措施,經嚴格審查并經本院院長批準,可以給予其最長不超過一個月的暫時解除期間。

A person who is restricted in consumption is in urgent need of going to other places because of serious illness of himself or his near relatives, funeral of his near relatives, and emergency situations such as performing or cooperating with his official duties, taking part in foreign affairs activities or important examinations.

  根據《意見》,在一至三個月的寬限期內,暫不發布其失信或者限制消費信息;期限屆滿,被執行人仍未履行生效法律文書確定義務的,再發布其信息并采取相應懲戒措施。

In accordance with the Opinion, the information on breach of trust or restriction of consumption shall not be published for the time being within the grace period of one to three months; if the time limit expires, the person subjected to execution has not fulfilled his obligations as defined in the legal instrument in force, the information shall be published and corresponding disciplinary measures shall be taken.

  一至三個月寬限期如何把握?最高法執行局副局長何東寧解釋,按照《意見》規定,不是所有案件都可以給寬限期,各地法院要結合案件具體情況,結合被執行人的履行意愿、失信程度來確定,相當于給被執行人一個改過自新的機會,威懾并督促被執行人主動履行。

What about the one- to three-month grace period? He Dongning, deputy director of the Supreme Law Executive Board, explained that according to the \"Opinion \", not all cases could be granted a grace period, and the local courts should determine according to the specific circumstances of the case, combined with the will of the person subjected to execution and the degree of breach of faith, which is equivalent to giving the person subjected to execution an opportunity to reform, deter and urge the person subjected to take the initiative.

  何東寧說,設置寬限期的目的和考慮就是讓被執行人在寬限期內自動履行義務,如果在寬限期內主動履行了義務,將不再對被執行人進行信用懲戒和限制消費。

He said that the purpose and consideration of the grace period was to allow the person subjected to an automatic performance of the obligation within the grace period, and that if the obligation was actively fulfilled during the grace period, no credit discipline and consumption restrictions would be imposed on the person subject to execution.

  據介紹,納入失信名單和限制消費這兩項措施對打擊“老賴”發揮了重要作用。何東寧同時表示,這兩項制度實行時間不長,一些工作機制正在日益完善,特別是在精細化、精準化管理方面還存在一些不足,需要進一步規范。

It said that the inclusion of discredit list and consumption restrictions on the two measures played an important role in the fight against \"rogue \". He said at the same time that the implementation of the two systems is not long, some working mechanisms are increasingly perfect, especially in the refinement, precision management there are some shortcomings, need to be further standardized.

  《意見》還規定了幾類解除或暫時解除限制消費措施的情形。比如,公司被限制消費后,它的法定代表人、主要負責人的確因為公司經營管理需要發生變更的,原來的法定代表人、主要負責人申請解除對其本人的限制消費措施的,人民法院經審查,認為法定代表人、主要負責人不屬于公司實際控制人或者影響債務履行的直接責任人員,也就是說,不存在惡意變更、規避執行的情形,應當予以準許。

《 The Opinion also provides for several types of measures to relieve or temporarily relieve consumption of restrictions. For example, if the company's legal representative or principal person-in-charge does need to be changed after the company's consumption is restricted, if the original legal representative or principal person-in-charge applies for lifting the consumption restriction measures imposed on the company itself, the people's court shall, upon examination, consider that the legal representative or principal person-in-charge does not belong to the company's actual controller or the person directly responsible for affecting the performance of the debt, that is to say, there is no malicious change or evasion of execution, and should be permitted.

  何東寧解釋,“應當準許”解除限制消費是有條件的,第一,必須由被限制消費的人提出申請;第二,提供有效證據;第三,要有書面承諾。對于提供虛假證據或者違背承諾從事消費的行為,人民法院將嚴肅懲處,不再準許被執行人再次申請。

He explained that \"should be permitted\" to lift the restrictions on consumption is conditional, first, must be applied for by the person subject to the restrictions on consumption; second, to provide valid evidence; third, to have a written commitment. The people's court shall severely punish the act of providing false evidence or violating the promise of consumption, and shall not allow the person subjected to execution to apply again.