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Article selection staff: Liu Lei   |   Release date:2021/3/9 16:12:53   |   Number of views: 23345

Recently，Supreme People's Court、Supreme People’s Procuratorate、Ministry of Public Security、The China Securities Regulatory Commission jointly issued the "Opinions of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, China Securities Regulatory Commission on Further Regulating the People's Courts' Freezing of Pledged Stocks of Listed Companies" (Fafa [2021] No. 9) (hereinafter referred to as "Opinion")，Effective from July 1, 2021。The heads of relevant departments of the four units answered reporters’ questions on the "Opinions"。

一、Please introduce the background and guiding ideology of the "Opinions"

Answer: The capital market plays an important role in financial operations that affects the whole body。With the economic and social development of our country and the increasingly perfect capital market system，It is increasingly common for people’s courts to enforce the stocks of listed companies of persons subject to execution。Further standardize the work related to the freezing of pledged stocks by the People’s Court，Improve the process of disposal and price change of pledged stocks，For safeguarding parties、Legitimate rights and interests of the pledgee，It is of great significance to ensure the healthy and orderly development of the securities market。In preservation and enforcement cases，The people's court freezes the debtor's shares of listed companies，If the stock has been pledged to others，To protect the legitimate rights and interests of creditors in the case，The enforcement court will often freeze as many pledged stocks held by the debtor as possible，To pay off the case claims as much as possible on the basis of realizing the pledged claims，There is a risk of freezing the amount that exceeds the standard。Meanwhile，After the pledged stocks were frozen by the judiciary，The pledgee cannot change the price of the pledged stocks on his own in accordance with the agreement，It is also easy to miss business opportunities，It is not conducive for the pledgee to realize his legitimate rights and interests。For this，In Article 7 of the "Opinions on Further Strengthening the Concept of Good-faith and Civilized Execution in Enforcement" issued by the Supreme People's Court at the end of December 2019 (hereinafter referred to as the "Opinions on Good-faith and Civilized Execution"), it proposed to establish a new freezing method for pledged stocks. ideas。

Because the new freezing method of pledged stocks involves assisting the transformation of the freezing system of the agency，After the promulgation of the "Goodwill and Civilized Implementation Opinions"，The Executive Bureau of the Supreme People's Court and the China Securities Regulatory Commission、Laws of China Clearing Corporation and its branches、Technology and other departments conduct repeated research on the technical implementation path of the new freezing method，And finalized the plan stipulated in the "Opinions"。At the same time，Although the "Opinions" only regulate the work related to the freezing of pledged stocks by the People's Court，However, in order to avoid disputes between the People’s Court and other competent authorities that freeze pledged stocks in practice，Supreme People's Court、The China Securities Regulatory Commission and the Supreme People’s Procuratorate、The Ministry of Public Security and other major departments that freeze pledged stocks will hold discussions，And print and issue the "Opinions" by joint signature。

In the process of drafting opinions，We adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics dafabet online sports betting appfor a New Era，In-depth study and implementation of Xi Jinping’s Thought on the Rule of Law，Adhere to the general tone of the work of seeking progress while maintaining stability and the people-centered development idea，Play the role of trial execution function，Provide powerful judicial services and guarantees for economic and social development。

First, strengthen the concept of goodwill and civilized execution。Enforcement work is an important means to achieve successful judgment by relying on the coercive power of the state，Significant impact on all parties。The people's court should adhere to the principle of proportionality during the execution process，Avoid over-execution。While executing the pledged stocks to realize the creditor’s claims，We must also reduce our debts to debtors as much as possible、Adverse effects of the pledgee，Reduce the possible impact on the development of the securities market as much as possible。

Second, services ensure the healthy and orderly development of the securities market。In the process of issuing the "Opinions"，On the one hand，We focus on solving outstanding problems in the process of freezing pledged stocks，Provide legal support to protect the exercise of stock pledge rights;On the other hand，Also fully respect the market-oriented operation rules of stock pledge and relevant administrative supervision rules。Article 6, Paragraph 3 of the "Opinions" clearly stipulates，The pledgee must still comply with securities transactions when disposing of price-changed stocks、Business rules related to registration and settlement。

The third is to adhere to problem orientation。Freeze on the amount of pledged stocks that exceeds the standard in current practice、Problems such as incomplete disclosure of frozen stocks and the inability of pledgees to change their prices，Under the existing legal framework，Comprehensive opinions from all aspects，Proposed clear and specific solutions，Strive to solve outstanding problems reflected by various market entities and the people，Release the economic functions of frozen property as much as possible，Continuously enhance the vitality of the securities market and the people’s sense of gain。

The fourth is to protect the parties involved fairly and in accordance with the law、Legitimate rights and interests of interested parties。Justice is the soul and life of justice，Execution programs are no exception。On the one hand，The "Opinions" clearly stipulates，For pledged stocks that have been marked，The People's Court allows the pledgee to change the price to realize the pledged creditor's rights;On the other hand，The pledgee shall also change the price in a certain manner under the supervision of the People’s Court，Prevent malicious collusion between the pledgee and the debtor to avoid execution and damage the legitimate rights and interests of the creditor in the case，This is the concrete embodiment of fair justice in the field of execution。

二、What is the relationship between the "Opinions" and the provisions on the freezing of pledged stocks in Article 7 of the "Goodwill and Civilized Implementation Opinions"

Answer: Just mentioned，The Supreme People’s Court proposed the idea of ​​constructing a new freezing method for pledged stocks in Article 7 of the “Opinions on Good Faith and Civilized Enforcement”。The "Opinions" are a further clarification and refinement of the "Opinions on Goodwill and Civilized Implementation"。Based on the "Goodwill and Civilized Implementation Opinions"，"Opinions" on how to freeze pledged stocks、How listed companies accurately disclose the status of frozen stocks、There are clear and specific provisions on how the pledgee can apply for a voluntary price change，This is of great significance to the people's courts and assisting agencies in practice to better grasp the application of the new freezing method of pledged stocks。In the process of applying the "Opinions"，Also pay attention to the following issues:

Firstly，Article 7 of the "Goodwill and Civilized Implementation Opinions"dafabet online sports betting app，When freezing pledged stocks, the people's court should freeze the debtor's capital account in the securities company in advance，The "Opinions" did not emphasize this，But it is stipulated in Article 6, Paragraph 1，The people's court freezes the debtor's capital account when allowing the pledgee to change the price of the stock on its own。This provision is mainly based on two considerations: 1.The purpose of freezing the capital account is to prevent the stock price change from being maliciously transferred after entering the capital account。But in accordance with the technical implementation path of the new freezing method determined in the "Opinions"，After the people’s court froze the pledged stocks，Not all pledgees will apply for self-priced stocks，Freeze capital accounts in advance when freezing pledged stocks，Not only insufficient necessity，And it will also increase execution costs。2.For those that exist in practice，Court A previously froze the pledged stocks but did not freeze the capital account or wait for the frozen capital account，Court B has previously frozen the capital account but has not frozen it or is waiting to freeze the pledged stocks，What should be done after the stock price change money enters the capital account，We think，Refer to relevant laws、Judicial interpretation stipulates and takes into account the particularity of capital accounts，In this case，The effect of freezing pledged stocks shall extend to the stock price change money entering the capital account，Court A freezes the price change in advance，Relevant courts can resolve this issue。Of course，To reduce disputes as much as possible，When the execution court freezes the pledged stocks, especially when the securities company assists in freezing the pledged stocks，The debtor’s capital account in the securities company can also be frozen。

The second is，Article 7 of the "Goodwill and Civilized Implementation Opinions"，Disputes between the People’s Court and other state agencies regarding the freezing of pledged stocks，The Supreme People’s Court takes the initiative to cooperate with the Supreme People’s Procuratorate、The Ministry of Public Security and other departments coordinate the solution。In accordance with this regulation，Supreme People’s Court and Supreme People’s Procuratorate、Consultation with the Ministry of Public Security and other departments，The "Opinions" were finally issued through joint signature of departments，And the dispute resolution mechanism is clarified in Article 12 of the "Opinions"。

The third is，Article 7 of the "Goodwill and Civilized Implementation Opinions"，Freezing that has been completed before the system transformation is completed is not applicable to the new freezing method。To this，"Opinions" need to be considered from the perspective of technical implementation and practice，In the first article、Article 10 is further clarified as，Inapplicable "Opinions" on the waiting list for freezing of pledged stocks，But the waiting list is changed to the official freeze，Or renew the formal freeze that has been processed before the implementation of this opinion，Upon application by the parties or pledgees，You can handle it according to this opinion。

Three、We noticed，After Article 3 of the "Opinions" stipulates that the assisting agency accepts the freeze request from the People's Court，The pledged stocks need to be marked in the system。Excuse me，What is the relationship between "mark" and "freeze" here?After the stock is marked，What legal effects will it produce

Answer: The reason why the "Opinions" distinguish between "marking" and "freezing"，Mainly based on two considerations: on the one hand，Just mentioned，In traditional freezing mode，To protect the legitimate rights and interests of creditors in the case，The enforcement court will generally freeze as many pledged stocks held by the debtor as possible，There is not only the risk of freezing the amount that exceeds the standard，And after the listed company discloses this situation, it will trigger market panic。For this，Article 2 of the "Opinions"，When the People’s Court freezes pledged stocks，As long as the number of stocks to be dafabet online betting websitefrozen is stated in the execution assistance notice in accordance with the calculation method for freezing non-pledged stocks。After stock freeze，Any part of the pledged stocks is released from pledge，The assisting agency will adjust this part of the stock to frozen status in the system，And can be sent by mail、Notify the People’s Court promptly by phone or other methods，Until the amount required to be frozen by the People’s Court is met。On the other hand，To prevent malicious collusion between the debtor and the pledgee，Unauthorized transfer of stocks to avoid execution，The People’s Court also needs to exercise a certain degree of control over pledged stocks，These stocks are marked in the system by the assisting agency。This not only prevents debtors、The pledgee disposes of the stocks at will，And when listed companies disclose freezing conditions，Can also be comprehensive、Accurately describe the frozen status of pledged stocks，Give market entities more clarity、Accurate expectations。In summary，About the relationship between "mark" and "freeze"，It can be simply summarized as "freezing" is the purpose，"Marking" is a means to achieve the purpose of freezing。

About the effectiveness of “marks”，《Opinions》Third、six、The eight articles are clearly stipulated: Firstly，To the pledged stocks that have been marked，The pledgee can apply to change the price on his own，But the law、Except otherwise provided by judicial interpretation。The second is，Other people’s courts or other state agencies freeze marked stocks，Assist the agency to process according to the waiting list freeze。Three is，The people's court can force the price of marked stocks to change during the execution procedure，The purpose is to prevent the pledgee from applying for a voluntary price change or releasing the pledge of the stock in practice，Hindering the normal progress of the execution program、The occurrence of situations that damage the legitimate rights and interests of creditors in the case。

Four、What are the main reasons and purposes of the "Opinions" stipulating that pledgees can change the price of stocks on their own

Answer: The reason why the pledgee is allowed to change the price of the stock on his own to realize the pledged claim，On the one hand，Because the stock prices of listed companies are constantly fluctuating，After the court froze it，If the pledgee cannot change the price on his own in accordance with the agreement，Not only will it damage their legitimate rights and interests，Moreover, the legitimate rights and interests of the debtor and creditors in the case will eventually be damaged by missing the opportunity for price change。On the other hand，Different from other properties，Stocks of listed companies are generally traded through the secondary market，There is a public transaction price，The pledgee will sell the stocks on his own under the supervision of the People's Court，Generally, there is no problem of malicious collusion in transferring property at a low price to damage the rights of creditors in cases。In other words，If the pledged stocks have not been judicially frozen，The pledgee and the debtor can handle the price change of the pledged stock in accordance with the market-oriented rules according to the agreement reached between them，In traditional freezing mode，This market-oriented operation rule will be blocked。The main purpose of the "Opinions" is，On the basis of not damaging the legitimate rights and interests of creditors in the case，Return the price change method of frozen pledged stocks to market-oriented operating rules as much as possible，Minimize the impact of enforcement measures on the pledged stock market。

In summary，Allow the pledgee to change the price of the stock to realize the pledged claim，Not only is it helpful for the pledgee to realize its creditor’s rights in a timely manner，And after the pledgee realizes the release of the pledged creditor's rights，It can also provide convenient conditions for the subsequent execution of the pledged stocks by the People’s Court。

　五、If case creditor、The debtor has objections to the People’s Court allowing the pledgee to dafabet online sports betting appchange the price on its own，How to relieve

Answer: In the process of drafting the "Opinions"，We attach great importance to case creditors、Protection of debtors’ rights and interests，And conducted comprehensive and systematic research and demonstration。First，In accordance with the provisions of Article 225 of the Civil Procedure Law，Party、Stakeholders believe that the execution violates legal provisions，Objections can be raised to the People’s Court responsible for execution。Accordingly，creditor、The debtor has objections to the people's court allowing the pledgee to dafabet online sports betting appchange the price on its own，Objection can be filed。Secondly，When the People’s Court issues the exchange payment to the pledgee，creditor、The debtor has objections，It can be handled in accordance with the judicial interpretation of the procedures for objections and objection lawsuits to the case allocation plan。In the process of specific application of the "Opinions" by local courts，Debtor’s relief rights、Relevant provisions of judicial interpretation，Fully protect creditors、Debtor’s relief rights，Protect the parties involved fairly and in accordance with the law、Legitimate rights and interests of the pledgee。