What is the difference between a mediation agreement and a judgment? Guangdong Zhiming Law Firm clarifies the two-year starting point for applying for compulsory enforcement and the interruption of the statute of limitations for litigation

What is the difference in the effective time between the mediation agreement and the judgment

After the judgment is delivered, there is a fifteen day appeal period. During the appeal period, if either party appeals, the first instance judgment shall not take effect; The verdict only came into effect after fifteen days without any appeal from either party. The mediation agreement is different. According to Article 100 of the Civil Procedure Law, the mediation agreement has legal effect once signed by both parties. Effective upon receipt, there is no appeal period and no appeal is allowed. In practice, we generally suggest that if the other party is willing to mediate, they should try to sign a mediation agreement under the supervision of the court, because it takes effect quickly, the willingness to perform is relatively high, and the mediation agreement can also be applied for compulsory enforcement. But one detail to note is that if one party refuses to sign for the mediation agreement when it is delivered, it shall be deemed that the mediation has failed, and the court shall make a timely judgment. This' signature 'is a hard threshold for effectiveness, not just' court stamp '.

The deadline for applying for compulsory enforcement is not a one size fits all approach of two years

Article 246 of the Civil Procedure Law stipulates that the period for applying for enforcement is two years. How do we calculate this two-year period? Calculated from the last day of the performance period specified in the legal document; If the legal document stipulates installment performance, it shall be calculated from the last day of each specified performance period; If the legal document does not specify a performance period, it shall be calculated from the effective date of the legal document. Note that the term 'two years' is correct, but many people confuse' application for enforcement deadline 'with' statute of limitations'. The statute of limitations for litigation is three years as stipulated in Article 188 of the Civil Code, which refers to the period of "requesting protection of civil rights from the court"; The deadline for applying for enforcement refers to the period of "applying to the court for compulsory enforcement after the judgment/mediation agreement takes effect". The applicable objects, starting points, and interruption rules for the two periods are different. In the courts in Shenzhen, the enforcement filing window is very strict in reviewing applications that exceed the deadline, and if there is no reason for suspension or interruption beyond the deadline, the ruling will not be accepted.

Several situations where the statute of limitations for litigation is interrupted can also be "renewed" during the execution phase

Article 195 of the Civil Code stipulates that if the statute of limitations for litigation is interrupted due to the right holder making a request for performance to the obligor, the obligor agreeing to perform the obligation, or the right holder filing a lawsuit or applying for arbitration, the statute of limitations for litigation shall be recalculated from the time of interruption or termination of the relevant procedures. During the execution phase, the deadline for applying for execution can also refer to the rules for interrupting the statute of limitations in litigation. For example, if you have urged the other party in writing for payment within two years, the other party has replied with a promise to repay, and both parties have reached a new repayment agreement, these may all constitute interruptions. But "verbal collection" is difficult to prove in court. We generally recommend using EMS to mail the collection letter and keep the signed receipt, or leaving a record of the other party's confirmation of the debt through WeChat or email. The Shenzhen Intermediate People's Court has emphasized in multiple enforcement reconsideration cases that the party advocating for interruption should bear the burden of proof, and simply saying 'I called' is not enough.

Is there any remedial path left after the execution deadline has passed

If the deadline for application execution has already passed, there is still a solution. According to Article 483 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, if the applicant for enforcement applies to the people's court for compulsory enforcement beyond the time limit for applying for enforcement, the people's court shall accept it. If the person subject to enforcement raises an objection to the time limit for applying for enforcement, and the people's court finds the objection to be valid after examination, it shall rule not to enforce. That is to say, the court does not actively review the statute of limitations, and only reviews it if the debtor raises an objection. In practice, many executed persons do not understand this rule and do not raise objections, but the court still executes it. So don't give up in a hurry after the deadline, file a case first and see the other party's reaction. But this is a passive approach with high risks and cannot be considered a routine plan. A more prudent approach is to fix the evidence of interruption through written reminders, reaching new agreements, and other means before the deadline expires.

What materials are required for applying for execution of a mediation agreement

In Shenzhen, when applying for compulsory enforcement to the court, it is generally necessary to submit: an enforcement application form, a copy of the effective legal document (mediation agreement or judgment), an effectiveness certificate (the mediation agreement becomes effective upon receipt, but some courts still require the issuance of an effectiveness certificate), the identity certificate of the applicant for enforcement, the identity information or business registration information of the person subject to enforcement, and property clues (if any). If it is a mediation agreement, it is best to attach a delivery receipt or receipt record to prove the effective time. Many parties, when applying for enforcement for the first time, thought that they could file a case by bringing the mediation agreement to the court. However, due to the lack of effective proof or proof of service, the trip was in vain. We generally recommend that the mediation agreement be copied and retained immediately after receipt, and a valid certificate be issued by the presiding judge to avoid the trouble of changing clerks and retrieving files over time.

Don't be intimidated by the words' final 'and' restore execution 'during execution

If the court cannot find any property available for execution during the execution, it will rule to "terminate the current execution procedure", abbreviated as the final version. This is not a case closure, nor is it debt elimination. According to Article 9 of the "Provisions of the Supreme People's Court on Strictly Standardizing the Termination of the Execution Procedure (Trial)", if the applicant for execution discovers that the executed person has assets available for execution after the termination, they may apply for execution again without being limited by the time limit for applying for execution. That means you can apply to resume execution at any time after the final version. But restoring execution requires you to provide new property clues, and the court will not proactively help you keep investigating. In Shenzhen, the court's online investigation and control system covers banks, securities, vehicles, real estate, etc., but some assets such as accounts receivable, matured debts, and overseas assets require the applicant for enforcement to provide clues themselves. We usually advise the parties involved to check the other party's business changes, litigation status, vehicle and property changes every six months to one year after the final settlement, either by themselves or through a lawyer.

Which is more cost-effective, mediation or judgment

If the other party has the intention to fulfill the agreement but needs installment payments, the advantages of a mediation agreement are obvious: quick effectiveness, non disclosure, and the ability to agree on breach of contract terms (such as paying liquidated damages if overdue). If the other party is simply dragging out time and has no intention of fulfilling, the judgment is more appropriate because the judgment can be appealed, the second instance can also investigate the facts again, and the public release of the judgment will put pressure on the other party's business reputation. But no matter which one is chosen, the core is to apply for execution as soon as possible after receiving the effective document, and not to waste time waiting for the other party to voluntarily return it. Both the statute of limitations for litigation and the statute of limitations for enforcement are hard deadlines, after which they become passive. Guangdong Zhiming Law FirmShenzhen contract dispute lawyerWhen dealing with contract disputes and enforcement cases, the performance deadline, consequences of breach, and delivery address are usually clearly written during the mediation stage to reduce subsequent enforcement disputes. If you have any questions about the analysis of labor relations and labor relations, you can take a look at our Zhiming Lecture Hall's Labor and Labor Relations Analysis - Shenzhen Lawyer Law Lecture; If it is an investment and wealth management dispute, Lawyer Shen Jinlong has also discussed in detail the seminar on dispute resolution in investment and wealth management disputes; The direction of consumer rights protection can refer to the three-step approach to consumer rights protection - Zhiming Lecture Hall Legal Lecture and Awakening Era • Three Step Approach to Consumer Rights Protection. More practical articles can be found in the Zhiming Lecture Hall column.

Judgment of Execution Case Experience of Guangdong Zhiming Law Firm

In various grassroots courts in Shenzhen, after the filing of enforcement cases, online investigation and control are generally carried out first, and the feedback cycle for investigation and control is about 15 to 30 days. If there is no property under investigation, the court may interview the applicant for enforcement to inquire about property clues and then decide whether to terminate the application. We generally suggest that the party concerned should write a list of known property clues when applying for execution, such as the other party's commonly used bank account, Alipay WeChat account, vehicle license plate, real estate address, and foreign investment equity. The more specific these clues are, the more targeted the court's investigation and prosecution will be. In addition, if the mediation agreement specifies a guarantor or collateral, the secured property can be directly disposed of during execution, which is more efficient than simply pursuing debt. But the guarantee clause should be clearly stated in the mediation agreement, not just "guaranteeing repayment", but "setting up a mortgage on a certain property and registering it" or "the guarantor bears joint and several liability", otherwise it may not be possible to directly add it during the execution stage. It is best to consciously preserve evidence of interrupted statute of limitations in the early stages of a dispute, rather than waiting until it is about to expire to find it. Many parties who encounter the other party's arrears for the first time are accustomed to making phone calls to urge them, but the evidentiary power of phone recordings is not unified in the recognition standards of Shenzhen courts, and written traces are more stable. If you have specific questions about the execution of the procedure, it is recommended to bring the original document to Guangdong Zhiming Law Firm for a face-to-face interview, calculate the effective time, performance deadline, and expired time, and then decide on the next step.

Author: Guangdong Zhiming Law Firm. Consultation hotline: 0755-25986969.

Disclaimer: The content of this article is a general introduction to legal knowledge and does not constitute legal advice or agency commitment for any specific case. The application of law is influenced by the facts, evidence, and court rulings of individual cases. Readers should consult professional lawyers based on their own situation. Guangdong Zhiming Law Firm shall not be held legally responsible for any decisions made based on the content of this article.