作者：佚名     2016-12-27

——浙江利群律师事务所律师　郑峰

摘  要：限制被执行人高消费，是执行司法实践中的一项督促被执行人自觉履行债务的新举措，对缓解执行难起到积极的推动作用。由于现行法律对此没有规定，各法院做法不一，措施不当易构成对被执行人的人身权的侵害。本文从限制被执行人高消费的概念着手，用比较的方法，剖析其性质和构成，探讨了法院依职权采取还是以当事人申请为前提的合法性和合理性，并给出限制被执行人高消费的基本含义；对于高消费的认定，是采取这一措施的关键，本文引用了某一法院的规定来分析高消费的标准，认为何为“高消费”应因人而异，不能一概而论。

关键词：执行难 被执行人 高消费

“执行难”问题，使法院的判决成为“法律白条”，严重影响了法院的公正．高效形象。为切实有效地缓解执行难，各地法院均在探索新的执行措施。近年来，有些法院大胆尝试“限制被执行人高消费”，在司法实践中起到一定的效果。 然而，各法院对其认识不一，做法不一，将会影响执行的公正性。本文拟从基本概念出发，用比较的方法，对限制被执行人高消费措施进行探讨，与大家交流，以便统一认识。

一、限制被执行人高消费的概念与性质

限制被执行人高消费，是司法实践的一种创举，法律上并没有明确的规定，对其含义的理解也有所不同。有人认为，限制被执行人高消费，“指人民法院对已经立案执行的被执行人，在采取法律赋予的各种强制执行措施后其仍以缺乏履行能力为由拒绝履行，但其各项消费行为明显与其向法院申报的财产状况不相符合，因而对其名称、住址、涉案状况在一定范围内公示，利用单位、个人对其消费行为的监督举报来督促其自觉履行的一项执行措施。” 笔者认为，该定义有以下三点值得商榷：

（一）“已经立案执行的被执行人”用词重复。被执行人是在执行案件中对当事人的特殊称谓。没有立案执行，当然也不能称其为被执行人。正如，民事诉讼中，被告肯定指诉讼立案后的被告，在没有进入诉讼前，债务人是不能称之为被告的。因此，用被执行人一词是明确的，不可能产生歧义，不必使用“已经立案执行的”来修饰。

（二）“采取法律赋予的各种强制执行措施后其仍以缺乏履行能力为由拒绝履行”。根据《民事诉讼法》和《执行若干问题》的规定，法律赋予的各种强制执行措施有：查询、冻结、划拨被执行人的存款；扣留、提取被执行人收入；查封、扣押、冻结、拍卖、变卖被执行人的财产；搜查被执行人及其住所或者财产隐匿地；强制被执行人交付法律文书指定的财物或票证；强制被执行人迁出房屋或者退出土地；强制被执行人履行法律文书指定的行为；强制被执行人加倍支付迟延履行利息和迟延履行金；执行被执行人的到期债权；对无形财产及其他特定权益的执行。 对这些法律规定的强制执行措施，法院可以根据个案的实际情况，选择其中的一种或数种措施进行执行活动，并不要求法院对所有案件均要用尽上述所有的执行措施。如果法院用尽上述措施，只要被执行人有财产，一般是会得到有效执行的，但是，执行成本会非常高，不能实现社会经济效益。同理，限制被执行人高消费措施，也不应限定在穷尽上述法律明确规定的执行措施后才能实施。

（三）权利人申请是前提条件。民事责任是对不履行义务以及侵犯他人权利的人所规定的责任，而权利救济是对权利人权利受侵犯时的保护和救济。限制被执行人高消费绝不是民事责任，是对权利受侵害的人一种救济手段。 这是针对被执行人的一种强制措施，在一定程度上限制了被执行人行为自由的权利。法院依职权主动采取该措施，没有法律依据，一旦操作不当，就会侵犯被执行人的人身权利，而成为违法执行。如果将限制被执行人高消费视为申请执行人的救济权利，在被执行人以无履行能力为由不自觉履行法定的债务，但生活上有高消费行为时，申请人据此向法院提出限制被执行人高消费的救济权利，那么，法院可依据当事人之间已明确的权利义务关系，确认申请人的救济权利，准许对这种恶意逃避债务的被执行人限制高消费措施。这样，既可以保障被执行人限制高消费措施的优越性，又保证了执行措施的合法性。况且，已于2002年12月17日提交全国人大讨论的《中华人民共和国民法（草案）》第九十八条规定“自然人、法人有抽逃资金、隐藏、转移财产等行为，拒不履行发生法律效力的法律文书的，经权利人申请，人民法院可以将该逃避民事责任的情形予以公告，并可以采取必要措施限制其高消费等行为”，可见，权利人申请应当是限制被执行人高消费的构成要件之一。

笔者认为，限制被执行人高消费，指法院对被执行人以缺乏履行能力为由拒绝履行，但其各项消费行为明显与其向法院申报的财产状况不相符合，经申请执行人申请，对其名称、住址、涉案状况在一定范围内公示，利用单位、个人对其消费行为的监督举报来督促其自觉履行的一项执行措施。

二、高消费的认定

高消费，现行法律没有规定，不论在理论上还是在实践中，均是一个模糊的概念。 执行中，对高消费的认定，应因人而异，不宜采用完全相同的标准。否则，该措施不仅不会提高执行的效率，反而会妨碍执行活动的有效开展。

例如，福建省顺昌人民法院《限制债务人高消费令》规定，在被执行人没有全部履行完毕前：“不得有宾馆、星级酒店（楼）、歌舞厅、夜总会、健身房等高消费场所消费；不得乘坐高级汽车、火车卧铺和飞机，不得使用无线电话等高档通讯工具；不得购置房产，不得租赁写字楼办公；不得购买高档商品和购置高档、大额生活用品；不得为家庭成员支出大额生活费用；不得出外旅游、度假；不得对外投资（包括开办公司、购买股票和债券等）；只能保留按政府规定的最低生活标准和生活费用，其他均属被执行财产范畴。” 笔者认为，该限制令规定“星级酒店（楼）、歌舞厅、夜总会、健身房等高消费场所消费；不得出外旅游、度假；不得对外投资（包括开办公司、购买股票和债券等）”等均是合理可行的。但是，如果“不得乘坐……火车卧铺和飞机，不得使用无线电话等高档通讯工具；……不得租赁写字楼办公”等，限制了被执行人从事正常的商业活动所必需的消费，将会严重妨碍社会经济的发展。限制被执行人高消费，是对其有意逃避债务，恶意挥霍的制裁，但并不应限制被执行人通过劳动创造财富。如果根据被执行人的业务性质，必需使用无线电话或乘坐飞机却因限制所谓的高消费而不能得到保障，被执行人将难以发挥自身技能，通过劳动创造财富，以最大限度地履行债务，最终实现执行的目的。

笔者认为，被执行人是公司的，应视该公司的性质，除进入破产程序外，应允许其拥有维持通常经营活动所必需的财产和经营开支，限制其购买房产、汽车等。对于公司的经营收入，应当扣除必要费用后，及时偿付债务。该公司的职员，尤其是公司高级管理人员，在从事公司经营活动时的经营性消费应当严格限制其最高标准。如果公司的经营开支超过法院限定的标准，就应视为高消费。

被执行人是个人的，应建立个人财产申报制度。 被执行人应根据法院的要求，如实申报本人及其共同生活家庭成员所有的财产及消费标准。法院经核实后，确定被执行人可以拥有的财产（包括收入）以及基本的消费标准，并告知申请执行人和被执行人。被执行人的财产和消费就应在法院确认的范围内，超过该范围的，就应属于高消费，应予以执行。当然，对于个人从事正常商业活动的，应当考虑该商业活动所必需的消费，如使用无线电话，乘坐飞机等，而不能将其一律视为高消费。

综上所述，对于限制被执行人高消费，在现行法律没有明确规定的情况下，法院采取该措施时应慎重，要规范做法，避免无章可循，要真正起到督促被执行自觉履行债务的功能。在法院不能有效执行的前提下，首先，法院应告知申请执行人，其有权申请限制被执行人高消费；其次，法院应责令被执行人如实申报财产和必需的消费开支；最后，法院应书面告知被执行人不得参与列明的高消费活动，否则，应承担相应的刑事责任。以上，仅是笔者对此的肤浅看法，有不当之处，望各位指正。

Author: Anonymous 2016-12-27

——Zheng Feng, a lawyer from Zhejiang Liqun Law Firm

Abstract: Limiting the high consumption of the person subjected to execution is a new measure in judicial practice to urge the person to consciously fulfill their debts, which plays a positive role in alleviating the difficulty of execution. Due to the lack of provisions in current laws and the varying practices of various courts, improper measures can easily constitute infringement of the personal rights of the person subjected to enforcement. This article starts with the concept of restricting high consumption by the person subjected to execution, analyzes its nature and composition using a comparative method, explores the legality and rationality of whether the court adopts it ex officio or based on the application of the parties, and provides the basic meaning of restricting high consumption by the person subjected to execution; The determination of high consumption is the key to adopting this measure. This article cites the regulations of a certain court to analyze the standards of high consumption and believes that what constitutes "high consumption" should vary from person to person and cannot be generalized.

Keywords: difficult to execute, high consumption by those who are executed

The issue of "difficulty in enforcement" has turned court judgments into "legal white papers", seriously affecting the fairness and efficiency of the court. In order to effectively alleviate the difficulty of enforcement, courts in various regions are exploring new enforcement measures. In recent years, some courts have boldly attempted to "limit the high consumption of executed persons", which has had a certain effect in judicial practice. However, different courts have different understandings and practices towards it, which will affect the fairness of enforcement. This article intends to explore the measures to limit high consumption by those subjected to execution from the perspective of basic concepts and comparative methods, and to communicate with everyone in order to achieve a unified understanding.

1、 The Concept and Nature of Restricting High Consumption by Persons Subject to Execution

Restricting the high consumption of the person subjected to execution is a pioneering act in judicial practice, and there is no clear legal provision, and the understanding of its meaning varies. Some people believe that restricting high consumption by those subjected to enforcement, An execution in which the people's court refuses to perform a person who has already filed a case for execution on the grounds of lack of ability to perform after taking various mandatory enforcement measures granted by law, but their various consumption behaviors clearly do not match their declared property status to the court. Therefore, the name, address, and involved situation of the person are publicly announced within a certain range, and the supervision and reporting of their consumption behaviors by units and individuals are used to urge them to consciously perform Measures The author believes that there are three points worth discussing in this definition:

（1） The term 'executed person who has already been filed for execution' is repeated. The person being executed is a special term for the parties involved in the execution of a case. Without filing a case for execution, of course, it cannot be called the person being executed. As in civil litigation, the defendant definitely refers to the defendant after the lawsuit is filed. Before entering the lawsuit, the debtor cannot be called the defendant. Therefore, using the term 'executed person' is clear and cannot create ambiguity, and there is no need to modify it with 'already filed for execution'.

（2） After taking various enforcement measures granted by law, they still refuse to perform on the grounds of lack of ability to perform. According to the provisions of the Civil Procedure Law and Several Issues Concerning Enforcement, various enforcement measures granted by law include: searching, freezing, and transferring the deposits of the person subjected to enforcement; Withholding or withdrawing the income of the person subjected to execution; Seizure, seizure, freezing, auction, or sale of the property of the person subjected to execution; Search the person subjected to execution and their residence or property hiding place; Forcing the person to be executed to deliver the property or documents specified in the legal documents; Forcing the person subjected to execution to move out of the house or withdraw from the land; Coercing the person to be executed to perform the acts specified in the legal documents; Forcing the person subjected to enforcement to double the payment of interest and penalty for delayed performance; Execute the matured creditor's rights of the person subjected to execution; Execution of intangible property and other specific rights and interests. For the enforcement measures stipulated by these laws, the court may choose one or more of them based on the actual situation of each case for enforcement activities, without requiring the court to exhaust all the aforementioned enforcement measures in all cases. If the court exhausts the above measures, as long as the person subjected to enforcement has property, it will generally be effectively enforced, but the cost of enforcement will be very high and cannot achieve socio-economic benefits. Similarly, measures to restrict high consumption by the person subjected to enforcement should not be limited to being implemented only after exhausting the enforcement measures clearly stipulated in the aforementioned laws.

（3） The application of the right holder is a prerequisite. Civil liability is the responsibility imposed on those who fail to fulfill their obligations and infringe upon the rights of others, while rights relief is the protection and relief of rights holders when their rights are violated. Limiting the high consumption of the person subjected to execution is not a civil liability, but a means of relief for those whose rights have been infringed upon. This is a coercive measure against the person subjected to execution, which to some extent limits the right of the person to freedom of conduct. The court voluntarily adopts this measure based on its authority, without legal basis. If the operation is improper, it will infringe on the personal rights of the person being executed and become illegal execution. If the restriction of high consumption by the person subjected to execution is regarded as the remedy right of the applicant for execution, and if the person subjected to execution voluntarily fulfills the statutory debt due to lack of ability to perform, but engages in high consumption behavior in daily life, the applicant applies to the court for the remedy right to restrict high consumption by the person subjected to execution. Therefore, the court may confirm the applicant's remedy right based on the clear rights and obligations between the parties, Allowing high consumption restrictions on those who maliciously evade debt. In this way, it can not only ensure the superiority of the measures taken by the person subjected to enforcement to restrict high consumption, but also ensure the legality of the enforcement measures. Moreover, Article 98 of the Civil Law of the People's Republic of China (Draft), which was submitted to the National People's Congress for discussion on December 17, 2002, stipulates that "if a natural person or legal person engages in activities such as evading funds, concealing, or transferring property, and refuses to comply with legally effective legal documents, the people's court may, upon the application of the right holder, announce the situation of evading civil liability and take necessary measures to limit their high consumption and other behaviors, It can be seen that the application of the right holder should be one of the constituent elements limiting the high consumption of the person subjected to enforcement.

The author believes that restricting the high consumption of the person subjected to execution refers to an enforcement measure taken by the court to refuse to fulfill their obligations on the grounds of lack of fulfillment ability, but their various consumption behaviors clearly do not match their declared property status to the court. Upon the application of the applicant for execution, their name, address, and involved situation are publicly disclosed within a certain range, and the supervision and reporting of their consumption behaviors by units and individuals are used to urge them to consciously fulfill.

2、 Recognition of high consumption

High consumption, which is not regulated by current laws, is a vague concept both in theory and in practice. During implementation, the recognition of high consumption should vary from person to person and should not adopt completely identical standards. Otherwise, this measure will not only not improve the efficiency of execution, but also hinder the effective implementation of activities.

For example, the Shunchang People's Court of Fujian Province's "Restriction of Debtors' High Consumption Order" stipulates that, Before the person subjected to execution has fully fulfilled their obligations: "There shall be no hotels or star rated hotels (buildings) Consumption in high consumption places such as dance halls, nightclubs, and gyms; Do not take high-end cars, train sleepers, or airplanes, and do not use high-end communication tools such as wireless phones; Not allowed to purchase real estate or rent office buildings for office use; Not allowed to purchase high-end goods and purchase high-end and high-value daily necessities; Not allowed to spend large living expenses on family members; Not allowed to travel or vacation outside; Not allowed to make external investments (including starting a company, purchasing stocks and bonds, etc.); Only the minimum living standards and living expenses set by the government can be retained, and all others belong to the category of property being executed The author believes that the restriction order stipulates that "consumption in high consumption places such as star rated hotels (buildings), dance halls, nightclubs, gyms, etc.; travel and vacation are not allowed; and external investment (including starting a company, purchasing stocks and bonds, etc.) is reasonable and feasible. However, if "it is not allowed to take... train berths and airplanes, nor to use high-end communication tools such as wireless phones;... it is not allowed to rent office buildings", etc., which limits the consumption necessary for the person being executed to engage in normal commercial activities, it will seriously hinder the development of the social economy. Restricting high consumption by the person subjected to execution is a sanction for intentionally evading debt and maliciously squandering, but it should not restrict the person from creating wealth through labor. If, based on the nature of the business of the person subjected to execution, it is necessary to use wireless telephones or take airplanes but cannot be guaranteed due to restrictions on so-called high consumption, the person subjected to execution will find it difficult to utilize their skills, create wealth through labor, and fulfill debts to the maximum extent possible, ultimately achieving the purpose of execution.

The author believes that the person being executed is a company, and should be allowed to own the necessary property and operating expenses to maintain normal business activities, in addition to entering bankruptcy proceedings, based on the nature of the company. The purchase of property, cars, etc. should be restricted. For the company's operating income, necessary expenses should be deducted before timely repayment of debts. The employees of the company, especially the senior management, should strictly limit their business consumption to the highest standard when engaging in company business activities. If the company's operating expenses exceed the standards set by the court, it should be considered high consumption.

The person being executed is an individual and a personal property declaration system should be established. The person subjected to execution shall truthfully declare all property and consumption standards of themselves and their family members living together in accordance with the requirements of the court. After verification, the court determines the property (including income) that the person subjected to enforcement can own and the basic consumption standards, and informs the applicant for enforcement and the person subjected to enforcement. The property and consumption of the person subjected to execution should be within the scope confirmed by the court. If they exceed this range, they should be classified as high consumption and should be executed. Of course, for individuals engaged in normal business activities, they should consider the necessary consumption for that business activity, such as using wireless phones, flying, etc., and cannot be considered as high consumption.

In summary, in the absence of clear provisions in current laws, the court should be cautious when taking measures to limit the high consumption of the person subjected to enforcement, standardize their practices, avoid rulelessness, and truly play a role in urging the person subjected to enforcement to consciously fulfill their debts. On the premise that the court cannot effectively enforce, firstly, the court should inform the applicant that they have the right to apply for restrictions on the high consumption of the executed person; Secondly, the court should order the person subjected to execution to truthfully declare their property and necessary consumption expenses; Finally, the court shall notify the person subjected to execution in writing that they shall not participate in the listed high consumption activities, otherwise they shall bear corresponding criminal responsibility. The above is only the author's superficial view on this, and there are some shortcomings. We hope everyone can correct them.