Insights

How to Apply for Property Preservation and Evidence Preservation in Ningbo Divorce Litigation

Ningbo Author：LuXu WANG

The raising of 1. issues

last week, I received a client, Ms. Zhang. She found that her husband was quietly transferring his real estate and deposits, and was also preparing to transfer the company's shares to relatives at a low price.

Ms. Zhang was very anxious and asked me if I could freeze these properties before suing for divorce, and whether the WeChat chat records of my husband and a third party would be deleted and whether they could be fixed in advance.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

2. legal basis

article 1092 of the the People's Republic of China Civil Code stipulates that if one of the spouses hides, transfers, sells, destroys, or squanders the joint property of the husband and wife, or forges the joint debt of the husband and wife in an attempt to encroach on the property of the other party, the joint property of the husband and wife may be divided less or not.

Article 104 of the the People's Republic of China Civil Procedure Law stipulates that if an interested party does not apply for preservation immediately due to an emergency, it will cause irreparable damage to his or her legitimate rights and interests, he or she may, before filing a lawsuit or applying for arbitration, apply to the place where the property to be preserved, the place where the respondent has his or her domicile, or the people's court that has jurisdiction over the case to take preservation measures. The applicant shall provide security, and if no security is provided, the application shall be rejected.

Article 84 of the the People's Republic of China Civil Procedure Law stipulates that when the evidence may be lost or difficult to obtain in the future, the parties may apply to the people's court for the preservation of evidence during the litigation process, and the people's court may also take the initiative to take preservation measures. In case of emergency, if the evidence may be destroyed or lost or difficult to obtain in the future, the interested party may, before bringing a lawsuit or applying for arbitration, apply to the place where the evidence is located, the place where the respondent has his domicile or the people's court that has jurisdiction over the case for the preservation of the evidence.

3. core points

1. Property preservation is divided into pre-litigation preservation and litigation preservation.

Pre-litigation preservation applies to cases where the situation is urgent and has not yet been prosecuted, and the applicant must file a lawsuit within 30 days after the court has taken protective measures, otherwise the preservation will be lifted. Litigation preservation is to apply to the court after the divorce case is filed, which can freeze bank deposits, seize real estate vehicles, restrict equity changes, etc.

2. Evidence preservation is often used for electronic data and witness testimony.

WeChat chat records, transfer details, infidelity photos, videos, repentance letters, witnesses about to go abroad and other situations are all suitable for applying for evidence preservation. The court may seal, copy, photograph, record or extract electronic data.

3. Property preservation requires security.

Pre-litigation property preservation generally requires the provision of an equal amount or court-approved security. The form of guarantee includes guarantee, cash, real estate, etc., in practice, the litigation preservation liability insurance guarantee issued by the insurance company is more common.

4. Liability for preservation errors

if the application for preservation is indeed wrong and causes losses to the respondent, the applicant shall be liable for compensation. Therefore, before applying for preservation, we should evaluate the evidence and necessity to avoid abuse.

4. boundary conditions

  • if the other party is only normal consumption or reasonable disposition of property, does not belong to the transfer of property, the court may not support preservation.
  • Evidence preservation must be for "may be lost or later difficult to obtain" evidence, ordinary documentary evidence is generally submitted through the evidence period can be.
  • Pre-litigation preservation must be prosecuted within the statutory time limit, otherwise it will be automatically discharged.

5. operational steps

  1. sorting out property clues: list the real estate, vehicles, bank deposits, stocks, funds, company equity, creditor's rights, etc. under the name of the other party.
  2. Collect evidence of transfer: keep bank flow anomalies, real estate transaction records, equity transfer agreements, screenshots of chat records, etc.
  3. Preparation of preservation application: stating the application matters, factual reasons, preservation subject matter, and emergency description.
  4. Provide guarantee materials: contact the insurance company to issue a letter of guarantee, or prepare cash, real estate guarantee.
  5. Submitted to the court: pre-litigation preservation is submitted to the court with jurisdiction; litigation preservation is submitted to the judge.
  6. Timely prosecution or promotion of litigation: a case must be filed within 30 days after pre-litigation preservation, and cooperation with the court after litigation preservation.

6. common mistakes

myth 1: The preservation application must be approved by the court.

In practice, the court will review the urgency, necessity and security, and may be rejected if the evidence is insufficient or the subject matter is unclear.

Myth 2: Preserving property is tantamount to awarding it to yourself.

Preservation is to prevent the property from being transferred, and the final division is still up to the court to decide on the basis of law and evidence.

Myth 3: You can apply to freeze all accounts of the other party at will.

The scope of preservation should be equivalent to the claim, and the preservation that clearly exceeds the standard may be adjusted by the court or even liable for compensation.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 84 of the the People's Republic of China Code of Civil Procedure
  • article 104 of the the People's Republic of China Civil Procedure Law

8. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 9. Lawyers

if it is found that the other party is transferring property, preparing to transfer the company's shares to relatives at a low price, or the key chat records may be deleted at any time, the correct action is to apply for preservation as soon as possible, rather than waiting for the prosecution to find a way out. Property preservation can be filed before or in litigation, and if the situation is urgent and not immediately preserved may make it difficult for you to make up for the loss, you can apply before the lawsuit, but usually to provide security. Before you start work, think clearly about the scope of the property to be preserved-which suite, which account, and how much equity, the more specific the positioning, the better the court will operate.

Evidence preservation is easily overlooked, but it is often the key to a turnaround. For evidence that may be lost or difficult to obtain in the future, such as chat records, emails, monitoring, company accounts, you can apply for preservation in litigation, and you can also apply before litigation in case of emergency. From the experience of handling cases, the earlier the preservation, the more active it is: first, fix the other party's account flow and fund movement, which can prevent the money from being transferred during the lawsuit; First, fix the electronic data, which can prevent the key evidence from being deleted and cannot be verified, and can also send the signal of "don't move" to the other party.

Preservation should be done within the rules, providing security, clarifying property clues, and cooperating with court verification, all of which should be prepared in advance. If the preservation is wrong, you may have to pay compensation to the other party, so don't speculate on a large area of freezing, focus on the object directly related to the disputed property. After the freeze, it is still necessary to proceed through normal proof and negotiation: while locking up property with preservation, an enforceable partition plan is proposed in mediation, transforming "locking up" into "talking up". Attention should also be paid to the connection between execution and preservation, and it is not until after the judgment that the preservation has expired.