If the person applying for executor dies, the heir can be changed to the person applying for executor after the rights are confirmed. Reading tip: During the execution procedure, sometimes the person applying for executor dies. Then, can the heirs of the person applying for executor die? Apply to the execution court to change him as the person applying for execution? According to the provisions of the judicial interpretation, if the natural person who is the person applying for execution dies, and the heir of the natural person applies to change or add him as the person applying for execution, the People's Court should support it.

Judgement Summary: If the person applying for execution dies, and the heir applies to change him as the person applying for execution based on the civil mediation letter issued by the court confirming that the creditor's rights belong to him and is inherited, the court shall support the application.

Case Introduction 1. On July 30, 2020, in the case of other contract disputes between Zhang Mourun and Sanhe Company, the Shanghai High Court ruled that Sanhe Company should return the investment money, liquidated damages, etc. to Zhang Mourun . Because Sanhe Company failed to fulfill its repayment obligations, Zhang Mourun applied to the Shanghai No. 2 Intermediate People's Court for enforcement. On August 27, 2020, the Second Intermediate People's Court filed the case for execution. 2. On November 21, 2020, Zhang Mourun passed away. Zhou Moujue is Zhang Mourun’s wife. On March 15, 2021, Zhou Moujue filed a lawsuit for family division and inheritance disputes with the Jing'an District Court in Shanghai. After mediation, the court issued a civil mediation letter, clarifying that Zhang Mourun's claims against Sanhe Company were settled by Zhou Moujue. Inheritance and all. 3. Zhou Moujue applied to the Second Intermediate Court to change him as the executor of the application, and the Second Intermediate Court ruled to agree to the change. Sanhe Company was dissatisfied with the ruling and applied to the Shanghai High Court for reconsideration. 4. On July 21, 2021, the Shanghai High Court ruled to reject Sanhe Company’s reconsideration application and upheld the execution ruling of the Second Intermediate People’s Court.

Key points and ideas of the judgment The focus of the dispute in this case is whether Zhou Moujue should be changed to the person applying for execution. In this regard, the Shanghai High Court held that: Article 2, paragraph 1, of the "Regulations of the Supreme People's Court on Several Issues Concerning Changing and Adding Parties in Civil Execution" stipulates: "When a natural person who is the person applying for execution dies or is declared dead, the estate of that natural person If the administrator, heir, legatee or other person who legally inherits the rights determined by the effective legal document due to the death or declaration of death of the natural person applies to change or add him or her as the applicant for execution, the People's Court shall support it." The Second Intermediate People's Court said. In the Execution (2020) Shanghai 02 Execution Case No. 1078, the person who applied for execution, Zhang Mourun, died. Based on the (2021) Shanghai 0106 Minchu No. 11392 civil mediation letter issued by the Jing'an Court, Zhou Moujue applied to change him as the executor as an heir. The Second Intermediate People's Court ruled to grant permission based on the above provisions, which was based on facts and complied with legal provisions. Sanhe Company reconsidered that there were procedural issues in the (2021) Hu 0106 Minchu No. 11392 civil mediation case by the Jing'an Court and that the claim could not be used as a basis for execution. It had no factual and legal basis, and the Shanghai High Court would not support it.

Summary of practical points The professional team of lawyers Tang Qinglin and Li Shu of Beijing Yunting Law Firm have handled and analyzed a large number of legal issues involved in this article and have rich practical experience. After handling a large number of cases, he also summarized his experience in handling cases and published the "Yunting Legal Practice Book Series". This article is excerpted from the book series. The authors of this book series are all professional lawyers working on the front line at Beijing Yunting Law Firm, with profound theoretical foundation and rich practical experience. The topic selection and writing style of this book series are based on actual case analysis, and strive to start from practical needs and seek the most direct solutions to difficult and complex legal issues often encountered in practice. Never forget the past and be the teacher of the future. Based on the court's judgment, regarding the death of the person applying for execution and his heir's application to add or change the person applying for execution, the key points are summarized as follows for practical reference.

1. If the person applying for executor dies during the execution procedure, the heir can apply to change or add him or her as the person applying for executor. Article 2, Paragraph 1 of the "Regulations of the Supreme People's Court on Certain Issues Concerning Changing and Adding Parties in Civil Execution" (2020 Amendment) stipulates: "If a natural person who is the person applying for execution dies or is declared dead, the natural person's estate administrator and heir shall If a person, legatee or other person who legally inherits the rights determined by a valid legal document due to the death or declaration of death of the natural person applies to change or add him or her as the person applying for execution, the people's court shall support it. "According to this provision, if the person applying for execution dies. , the people's court should support the heir's application to change or add him or her as the executor.

2. The heir can also apply to change the executor after obtaining a legal document from the court confirming that the creditor's rights belong to him/her. If the person applying for execution dies during the execution process, the heirs apply to the execution court to change the person applying for execution based on the judgment or mediation letter issued by the court confirming that the debts left by the person applying for execution will be inherited by them. They have rights within the scope of inheritance and the court should support it. . It is worth noting that before the Civil Code takes effect, if an heir applies to the court to change the executor with a valid notarized will, the court can support it. However, after the Civil Code comes into effect, when the contents of several wills conflict, the notarized will is no longer the most valid will, but the last one made shall prevail. After that, if the heir applies to the court to change the executor with a notarized will, if there is a later will that conflicts with the notarized will, his request cannot be supported by the court.

3. In practice, there are situations where only one legal heir inherits the creditor's rights, and other legal heirs give up inheriting the creditor's rights.

After the person applying for executor dies, without a will or a legacy support agreement, the estate of the person applying for executor will be distributed according to legal inheritance. In the case of multiple legal heirs, if they apply to the execution court for execution at the same time, the execution court needs to identify and distribute the share of each legal heir. In practice, for the sake of efficient distribution of inheritance, convenience for court enforcement and other factors, there are often situations where one legal heir inherits the creditor's rights and other heirs give up the inheritance of the creditor's rights. In this case, if the legal heir who has not given up the inheritance of the creditor's rights applies to the enforcement court to change the executor, the court should support it. (Our country is not a country of case law, and the cases quoted and analyzed in this article are not guiding cases, and have no binding force on the trial and adjudication of similar cases. At the same time, it is particularly important to note that in judicial practice, the details of each case They vary greatly, and the judgment opinions in this article must not be quoted directly. The enforcement business department of Beijing Yunting Law Firm has sorted out and studied the judgment documents of different cases, aiming to provide more readers with different research angles and observation perspectives. It does not mean that The recognition and support of the enforcement business department of Beijing Yunting Law Firm for the judgment opinions of this article does not mean that the court must quote or refer to such judgment rules when handling similar cases)

Relevant. Legal Provisions

"Provisions of the Supreme People's Court on Several Issues Concerning Changing and Adding Parties in Civil Enforcement" (Fa Interpretation [2020] No. 21)

During the execution process of Article 1, application The executor or his successor or right holder may apply to the People's Court to change or add parties. If the application meets the statutory conditions, the people's court shall support it.

Article 2 If a natural person who is the person applying for execution dies or is declared dead, the natural person’s estate administrator, heir, legatee or other person shall be determined by a valid legal document as a result of the natural person’s death or declaration of death. If the subject of rights applies to change or add him or her as the person applying for execution, the People's Court shall support it. If a natural person who is the person applying for execution is declared missing, and the natural person's property custodian applies to change or add him or her as the person applying for execution, the People's Court shall support it.

"The People's Republic of China and the Civil Code" (effective from January 1, 2021)

Article 1123 After the inheritance begins, the legal inheritance shall be If there is a will, it shall be handled in accordance with the testamentary inheritance or legacy; if there is a legacy and support agreement, it shall be handled in accordance with the agreement.

Article 1,142 A testator may revoke or change his or her will. After making a will, if the testator performs civil legal actions contrary to the contents of the will, it will be deemed to have revoked the relevant contents of the will. If there are several wills and their contents are conflicting, the last will shall prevail.

Court Judgment

The following is the discussion of the Shanghai High Court in the "This Court's Views" section: This Court believes that the Second Intermediate People's Court in the execution (2020) Hu 02 Zhi No. 1078 case , the person applying for execution, Zhang Mourun, died. Based on the (2021) Shanghai 0106 Minchu No. 11392 civil mediation letter issued by the Jing'an Court, Zhou Moujue applied to change him as the executor as an heir. The Second Intermediate People's Court ruled to grant approval in accordance with Article 2, paragraph 1, of the "Supreme People's Court's Provisions on Several Issues Concerning Changing and Adding Parties in Civil Enforcement", which has a factual basis and complies with legal provisions. Sanhe Company reconsidered that the Jing'an Court's claim that there were procedural issues in the (2021) Hu 0106 Minchu No. 11392 civil mediation case and could not be used as a basis for execution has no factual and legal basis, and this court will not support it. In accordance with the provisions of Article 11, paragraph 1, and Article 23, paragraph 1, item (1) of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by People's Courts", the ruling is as follows: Shanghai Sanhe is rejected Real Estate Co., Ltd.’s application for reconsideration upheld the Shanghai Second Intermediate People’s Court’s (2021) Shanghai 02 Zhiyi No. 77 execution ruling.

Case source "First-instance Enforcement Ruling of Shanghai Sanhe Real Estate Co., Ltd." Shanghai Higher People's Court (2021) Hu Zhifu No. 59

Extended reading

On the basis of searching a large number of similar cases, Lawyer Yunting summarized the relevant adjudication rules as follows for readers’ reference:

1. The person applying for execution dies during the execution process, and the heirs apply for execution according to the court’s confirmation. If the creditor's rights are inherited by the judge, apply to the enforcement court to change the executor and enjoy the rights within the scope of inheritance, which is in compliance with legal regulations.

Case 1: "Wang, Xia Yang, et al. Contract Execution Ruling" Beijing Higher People's Court (2018) Jingzhijian No. 58 Beijing High Court held that the "Supreme People's Court's Notice on Changes in Civil Enforcement" "Provisions on Several Issues Adding Parties" stipulates: "If a citizen who is the person applying for execution dies or is declared dead, the citizen's executor, legatee, heir or other person shall bear the responsibility according to law due to the death or declaration of death of the citizen. If an effective legal document determines the subject of rights and applies to change or add him or her as the person applying for execution, the people's court should support it.

"Based on the above provisions, the Beijing High Court held that the basis for execution of Haidian Court's (2011) Hai Zhi Zi No. 10140 case was the (2010) Hai Min Chu Zi No. 8994 civil judgment, which clearly ordered Xia Mouyang to (2004) The civil judgment No. 19621 of Haiminchuzi confirmed Wang Guiqin's obligation to return and bear joint liability for repayment. In this case, the person applying for execution, Zhang Mouying, died during the execution. The Fengtai Court made a civil judgment (2016) Jingminchu No. 23465. It was confirmed that the debt of 670,177 yuan and 45 cents left by Zhang Mouying was inherited jointly by Wang Mou and Wang Guiqin, and Wang Mou was entitled to 335,088 yuan each. As Zhang Mouying's creditor's heir, he applied to the Haidian Court to change him as the executor of this case. He has rights within the scope of inheritance and is in compliance with the above legal provisions. The Haidian Court ruled that Wang Mou should be changed to (2011) Haizhi No. 10140 Case Xia Mouyang's objections to the authenticity of the signature of Zhang Mouying, the person applying for execution in the Haidian Court execution case, and its lack of any relationship with Zhang Mouying's demolition compensation and subsidies are not part of the review of this case. The scope can be resolved through other legal channels in accordance with the law.

2. The will made by the original applicant for executor has been notarized, and the contents of the will include the claims within the share of the original applicant for executor determined by the third party inheritance judgment. If the notarized will is deemed valid by the court in another case, the execution court may decide to change the third party to be the executor based on the application of the third party.

Case 2: "Li 1, Li 2, Li 3 Infringement Enforcement Review Enforcement Ruling" Guangdong Provincial Higher People's Court (2019) Guangdong Zhifu No. 571 The Guangdong High Court believes that the focus of the dispute in this case is the (2007) Qingzheng Nei Zi No. 490 issued by the Qingyuan City Notary Office The issue of the validity of the notarial certificate. First of all, regarding the validity of the notarial certificate, Li Mou 1, the applicant for reconsideration, appealed to the Qingyuan Intermediate People’s Court because he was dissatisfied with the Qingcheng District People’s Court (2018) Guangdong 1802 Minchu No. 684. , therefore, the validity of the notarial certificate No. 490 of the Qingyuan City Notary Office (2007) is pending. It was found that Li Mou 1 and others appealed against the Qingyuan City Qingcheng District People’s Court (2018) Guangdong 1802 Minchu No. 684 Civil Judgment No. 1. In the case, the Qingyuan Intermediate People's Court has issued a civil judgment (2018) Guangdong 18 Min Zhong No. 3181. The final judgment held that it was not inappropriate for the first-instance court to determine that the notarial certificate was valid. Therefore, the applicant for review requested the Qingyuan Intermediate People's Court to revoke the validity of the above-mentioned notarial certificate (2018). ) The reason for reconsideration of the execution ruling No. 18 of Guangdong Province is inconsistent with the facts, and this court will not support it. Secondly, regarding the issue of whether Li Mouqing should be changed as the executor of this case, the Supreme People's Court's Notice on Changes in Civil Execution. Article 2, paragraph 1, of "Provisions on Certain Issues Adding Parties" stipulates: "If a citizen who is the person applying for execution dies or is declared dead, the citizen's executor, legatee, heir or other person shall be responsible for the death or declaration of death of the citizen." If a subject who legally bears the rights determined by a valid legal document applies to change or add him or her as the person applying for execution, the people's court shall support it." In this case, according to the notarized will made by the original executor Huang Jin, Li Shaoqing was the heir to the will and inherited Huang Jin’s share as determined by the Qingyuan Intermediate Court (2006) Qingzhong Famin Yichuzi No. 10 Civil Judgment claims within. Based on Li Mouqing's application, the Qingyuan Intermediate People's Court ruled to change him as the executor of this case, which was in line with the provisions of the above judicial interpretation, and the Guangdong High Court upheld it.

3. When the person applying for execution dies, and multiple legal heirs give up inheritance in writing, and the execution court changes the person applying for execution to the person applying for execution based on the application of the remaining legal heirs who have not given up inheritance, it is in compliance with the law.

Case 3: "Execution Ruling on Reconsideration of the Loan Contract Dispute between Wu Moufeng and Wu Mouxiang" Fujian Nanping Intermediate People's Court (2021) Min 07 Zhifu No. 102 Fujian Nanping Intermediate People's Court held that " Article 2, Paragraph 1 of the Provisions of the Supreme People's Court on Several Issues Concerning Changing and Adding Parties in Civil Execution stipulates: "If a natural person who is the person applying for execution dies or is declared dead, the natural person's estate administrator, heir, legatee or If other subjects who legally bear the rights determined by effective legal documents due to the death or declaration of death of the natural person apply to change or add them as the executor, the People's Court shall support it. "Wu Moujian, Wu Mouming, Wu Mouying, Wu. Feng recruited the legal heir for Wu, and Wu Jian, Wu Ming, and Wu Ying gave up the inheritance in writing, and the Yanping District People's Court of Nanping City changed it to (2003) Yanminchu Zi No. 485 based on Wu Feng's application. The person applying for execution of a civil judgment complies with legal requirements. The reconsideration applicant Wu Mouxiang is dissatisfied with the (2003) Yanminchuzi No. 485 Civil Judgment, which is not a matter of reconsideration and review, and can be resolved through other legal channels.