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债务人财产调查途径:
(一)申请人提供财产线索
由申请人提供线索是发现债务人财产的有效途径之一。一些申请人在纠纷发生前就与债务人认识,甚至与债务人有过长期的民事交往与合作,他们或多或少了解债务人的财产状况,因此完全有能力向法院提供这方面的情况;另一些申请人虽然在发生纠纷前与债务人素不相识(如交通肇事等突发性行为引起的侵权诉讼),但纠纷发生后,权利人也会留意债务人财产方面的情况,因此也有可能了解到一部分债务人的财产状况。另外,申请人同执行结果有直接的利害关系,他们深知如果能够向法院提供这方面的信息,执行将变得简单快捷,自己的权利就能够早日实现,所以从申请人的角度说,他们最有提供债务人财产状况的积极性,只要他们掌握了这方面的信息,总是乐意将这方面的情况提供给法院的。
由债权人提供线索,虽然是发现债务人财产的有效途径,但不应由此得出应当由债权人对债务人财产状况负举证责任的结论,尤其是不能因为债权人未能向法院提供债务人的财产状况的材料,法院就不受理债权人的执行申请,就把执行受挫的责任归咎于债权人。
(二)债务人申报财产
债务人比任何人更清楚自己的财产状况,他们不仅知道自己到底有哪些财产和究竟有没有能力偿还债务,而且对处于自己占有下的财产,哪些是自己的、哪些是别人寄放的或者是借用别人的也一本清册。因而让债务人来向法院说明究竟有没有财产、有哪些财产,不仅没有任何困难而且也是一种最为经济的发现财产的方法。当然, 由于债务人同案件有直接利害关系,财产一旦被发现就意味着不得不履行被生效法律文书所确定的债务,他们自然是极不情愿向法院申报财产的,即使不得不去申报,也会尽量地瞒报。所以,必须用行之有效的法律规则来约束债务人,使他们必须申报并且必须据实申报。
(三)法院依职权调查
法院依职权调查是指法院通过自己的调查来发现债务人的财产。在执行实务中,由于债权人常常不能向法院提供债务人财产状况,或者至多提供一些财产线索,法院就需要通过自己的调查来发现债务人的财产。法院具有强制性的调查权,在法院进行调查时,被调查的单位和个人有协助调查的义务,必须合作和配合,如实向法院提 供债务人的财产情况。对违反协助义务的人,法院可以采取民事诉讼强制措施。所以,法院依职权调查是发现债务人财产的极具实效性的方法。
就采用的顺序而言,法院调查应当位于申请人提供和债务人申报之后,因为如果通过申请人提供财产信息或者债务人申报获得财产信息,执行法院已经获知了可供执行的财产,就没有必要再去调查了。从这个意义上说,法院调查又是一种补充性的发现债务人财产的方式。法院调查与申请人提供和债务人申报呈反比关系,其他两种发现债务人财产的方式越有效,需要采用法院调查的比例就越少,相反,如果不能通过其他两种方式有效地获悉债务人可供执行的财产,就越需要依赖法院的调查。
实践中,有的债权人认为去调查债务人的财产很多余,因为即使调查出结果,自己也没法让对方还债。这样显然是不清楚我国法律法律的表现,一般来讲,在债务人不还钱的时候,为了防止其转移财产,债权人是可以申请法院进行财产保全,这样也是对债权人权益的保护。
The approach to the investigation of the debtor's property:
(1) the applicant provides a clue to the property
Providing clues to the applicant is one of the effective ways to find the debtor's property. Some of the applicants and the debtor knew in the dispute before, even with the debtor had civil exchanges and cooperation for a long time, they are more or less understanding of the debtor's property status, therefore have the ability to provide the information to the court; some other applicants although in dispute with the debtor (such as traffic accident caused by be strangers to each other and other unexpected behavior), but the tort litigation dispute, the right people will pay attention to the situation of the debtor's property, so it is possible to understand the part of the debtor's property status. In addition, the applicant has direct relations with the implementation of the results, they know that if you can provide this information to the court, the execution will become simple and quick, their rights will be realized at an early date, so from the point of view, they have the enthusiasm to provide debtor property status, as long as they have this information in this aspect, is willing to provide to the court.
By the creditors to provide clues, although effective way to find out the property of the debtor, but should not be obtained by the creditors of the debtor's property shall bear the burden of proof the conclusion, especially not because the creditor fails to provide the debtor's property to the court, the court will not accept the creditors of the implementation of the application, the implementation of the responsibility of frustration due to the creditor.
(two) the debtor declared property
The more aware of their property status than anyone, they not only know what property and whether there is no ability to repay the debt, but also in their possession of the property, which is their own, which is another place or borrowed a list also. Therefore, it is not only difficult for the debtor to explain to the court whether there is property or property, but also a most economical way to discover the property. Of course, as the debtor has a direct interest with the case, once found property meant performance is determined by effective legal documents of debt, they are naturally reluctant to declare their property to the court, even have to declare, will try to cheat. Therefore, we must use legal rules effective to restrain the debtor, so they must be declared and must truthfully declare.
(three) an investigation by the court in accordance with its authority
The court according to the investigation of power refers to the discovery of the property of the debtor by the court through its own investigation. In execution practice, because creditors often fail to provide debtors' property to the court, or at most provide some property clues, the court needs to find debtor's property through his own investigation. The court has mandatory investigative power. When investigating in court, the investigated units and individuals have the obligation of assisting investigation. They must cooperate and cooperate to provide the debtor's property with the truth. For persons who violate the obligation of assistance, the court may take compulsory measures for civil action. Therefore, the court in accordance with the authority to investigate the property of the debtor is a very effective method.
With the order, the court investigation shall be located in the applicant and the debtor after the declaration, as if by the applicant or the debtor to declare the property information to obtain property information, the implementation of the court has been informed of the property available for execution, there is no need to go to the investigation. In this sense, the court investigation is a complementary way to find the debtor's property. The investigation and court and declare the debtor is inversely proportional to the other two, found that the debtor's property more effectively, need to adopt the court investigation proportion is less, on the contrary, if not by the other two methods effectively informed the debtor property available for execution, the more need to rely on the court investigation.
In practice, some creditors think that to investigate the property of the debtor is a lot, because even if the results are investigated, they can not make the other party pay the debt. Obviously, it is not clear about the performance of our laws and regulations. Generally speaking, when debtors do not repay money, in order to prevent their transfer of property, creditors can apply for court property preservation, which is also the protection of creditors' rights and interests.