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涉校园贷在校生可不纳入失信名单
2020-01-08 01:55   来源:  www.eoto-online.com   评论:0 点击:

涉校园贷在校生可不纳入失信名单1月2日,《最高人民法院关于在执行工作中进一步强化善意文明执行理念的意见

  1月2日,《最高人民法院关于在执行工作中进一步强化善意文明执行理念的意见》(以下简称《意见》)发布。《意见》提出,对纳入失信名单和限制消费措施“严格依法、审慎适用”,对于决定采取惩戒措施的被执行人,可以给予其一至三个月的宽限期。全日制在校生因“校园贷”纠纷成为被执行人的,一般不得对其采取纳入失信名单或限制消费措施。

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.

  值得关注的是,《意见》要求准确理解限制被执行人子女就读高收费学校。限制被执行人子女就读高收费学校,是指限制其子女就读超出正常收费标准的学校,虽然是私立学校,但如果其收费未超出正常标准,也不属于限制范围。

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.

  《意见》指出,人民法院在采取此项措施时,应当依法严格审查,不得影响被执行人子女正常接受教育的权利;在新闻媒体对人民法院采取此项措施存在误报误读时,应当及时予以回应和澄清。人民法院经依法审查,决定限制被执行人子女就读高收费学校的,应当做好与被执行人子女、学校的沟通工作,尽量避免给被执行人子女带来不利影响。

《 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.

  被限制消费的个人因本人或近亲属重大疾病就医,近亲属丧葬,以及本人执行或配合执行公务,参加外事活动或重要考试等紧急情况急需赴外地,向人民法院申请暂时解除乘坐飞机、高铁限制措施,经严格审查并经本院院长批准,可以给予其最长不超过一个月的暂时解除期间。

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.

  根据《意见》,在一至三个月的宽限期内,暂不发布其失信或者限制消费信息;期限届满,被执行人仍未履行生效法律文书确定义务的,再发布其信息并采取相应惩戒措施。

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.

  一至三个月宽限期如何把握?最高法执行局副局长何东宁解释,按照《意见》规定,不是所有案件都可以给宽限期,各地法院要结合案件具体情况,结合被执行人的履行意愿、失信程度来确定,相当于给被执行人一个改过自新的机会,威慑并督促被执行人主动履行。

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.

  何东宁说,设置宽限期的目的和考虑就是让被执行人在宽限期内自动履行义务,如果在宽限期内主动履行了义务,将不再对被执行人进行信用惩戒和限制消费。

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.

  据介绍,纳入失信名单和限制消费这两项措施对打击“老赖”发挥了重要作用。何东宁同时表示,这两项制度实行时间不长,一些工作机制正在日益完善,特别是在精细化、精准化管理方面还存在一些不足,需要进一步规范。

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.

  《意见》还规定了几类解除或暂时解除限制消费措施的情形。比如,公司被限制消费后,它的法定代表人、主要负责人的确因为公司经营管理需要发生变更的,原来的法定代表人、主要负责人申请解除对其本人的限制消费措施的,人民法院经审查,认为法定代表人、主要负责人不属于公司实际控制人或者影响债务履行的直接责任人员,也就是说,不存在恶意变更、规避执行的情形,应当予以准许。

《 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.

  何东宁解释,“应当准许”解除限制消费是有条件的,第一,必须由被限制消费的人提出申请;第二,提供有效证据;第三,要有书面承诺。对于提供虚假证据或者违背承诺从事消费的行为,人民法院将严肃惩处,不再准许被执行人再次申请。

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.


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