If the person subjected to execution has the ability to perform but fails to perform the obligations specified in the effective legal documents, and has one of the following circumstances, the people's court shall include him in the list of people subjected to execution for breach of trust, and impose credit punishment on him according to law: (1) Obstructing or resisting execution by forging evidence, violence, threats, etc. ; (2) evading execution by means of false litigation, false arbitration or concealing or transferring property; (3) Violating the property reporting system; (4) Violating the order of restricting high consumption; (five) the person subjected to execution refuses to perform the execution settlement agreement without justifiable reasons; (six) other people who have the ability to perform and refuse to perform the obligations specified in the effective legal documents.
In judicial practice, when a company is included in the list of people who have not fulfilled the judgment obligation (that is, the "blacklist"), many courts will also include the legal representative of the company in the list of people who have not fulfilled the judgment obligation. So is this behavior of the court legal? What is the specific legal basis?
First of all, what is the legal representative?
Article 38 of the General Principles of the Civil Law: According to the law or the articles of association of a legal person, the person in charge who exercises functions and powers on behalf of the legal person is the legal representative of the legal person. Article 13 of the Company Law stipulates that the legal representative of the company shall serve as the chairman, executive director or manager in accordance with the company's articles of association and shall be registered according to law.
It can be seen from the above legal provisions that the legal representative of the company is the person who exercises authority on behalf of the company, and the legal representative is not necessarily the shareholder of the company. As long as he is the chairman, executive director or manager of the company, he is qualified to be the legal representative of the company.
Secondly, under what circumstances can the court include the person subject to execution in the list of people subject to dishonesty?
Article 1 of "Several Provisions of the Supreme People's Court Municipality on Publishing the Information of the List of Executed Persons with Breach of Trust" stipulates that if the executed person has the ability to perform but fails to perform the obligations specified in the effective legal documents, and has one of the following circumstances, the people's court shall include it in the list of executed persons with breach of trust and impose credit punishment on him according to law:
(1) Obstructing or resisting execution by forging evidence, violence or threats;
(2) evading execution by means of false litigation, false arbitration or concealing or transferring property;
(3) Violating the property reporting system;
(4) Violating the order of restricting high consumption;
(five) the person subjected to execution refuses to perform the execution settlement agreement without justifiable reasons;
(six) other people who have the ability to perform and refuse to perform the obligations specified in the effective legal documents.
As can be seen from the above provisions, if the court wants to include the person subjected to execution in the list of persons subjected to dishonesty, it must meet two conditions at the same time: first, the person subjected to execution has the ability to perform and fails to perform the obligations stipulated in the effective legal documents, and second, it must meet one of the above six situations.
However, without performing, it is difficult to prove that you have the ability to perform. First, if it is verified by the court that there is no property under the name of the person subjected to execution, then this situation cannot be called performance ability. Unless the court finds out that the person subjected to execution has maliciously transferred the property. Second, for general enforcement cases, most of them do not have one of the above five situations, and the court will generally blacklist the executed person according to Article 6 of the umbrella clause. If the above laws are strictly followed, in practice, the legality of many acts of blacklisting the executed person by the court remains to be discussed.
Finally, is it legal for the court to blacklist the legal representative of the company?
When the company acts as the executor, if the company fails to perform the obligation of effective judgment, the court will often include the company and its legal representative in the list of people who have been executed in bad faith.
The company is a legal person. When it fails to perform the obligation of effective judgment, unless it has gone through bankruptcy liquidation procedures, it can be considered as capable and refused to perform. Therefore, in this case, there is no problem for the court to include it in the list of people who have been executed for dishonesty.
The legal representative of a company is only a person who exercises authority on behalf of the company as a legal person in accordance with the articles of association, and is not necessarily a shareholder of the company. Article 3 of the Company Law stipulates that a company is an enterprise legal person with independent legal person property and legal person property rights. The company is liable for its debts with all its property. The independent personality system of a company is the foundation of modern company law and the charm of the company system. When the company acts as the executor, the company bears external liabilities with all its assets, and it is still unknown whether the company can fully perform its debts before entering the bankruptcy liquidation procedure. Even after the bankruptcy liquidation, as long as the shareholders of the company do not pay their capital contributions or withdraw their capital contributions, they do not need to be responsible for the debts of the company. The legal representative of the company is not the person subjected to execution. Since he is not the person to be executed, how can he break his word? The legal representative of the company is not responsible for the debts of the company.
To sum up, the author believes that it is illegal for the court to include the legal representative of the company in the list of people who have been executed for breach of trust.