The outward transfer of personal property includes two types: one is the transfer of immigrant property; The second is the transfer of inherited property;
1. Migration must apply to the foreign exchange administration department of the original residence of the immigrant or the decedent's residence before his death;
2, more than 200 thousand yuan (including 200 thousand yuan) of the transfer of immigrant property to take "one application, step by step remittance";
3. If the application amount exceeds the equivalent of RMB 500,000 (including RMB 500,000), it must be reported to the State Administration of Foreign Exchange for examination and approval;
Second, the criminal relief method of the debtor's malicious transfer of property
In order to maintain the authority of the people's court's effective judgment or ruling, the criminal law stipulates the crime of refusing to execute the judgment or ruling. Those who have the ability to execute and refuse to execute, if the circumstances are serious, may be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine.
1On April 7, 1998, the Supreme Court issued the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Cases of Refusing to Execute Judgments and Orders, which standardized the legal application of the crime of refusing to execute judgments and orders, and made it clear that "having the ability to execute" means that "according to the verified evidence, the person who has the obligation to execute the judgments and orders of the people's courts has property available for execution or has the ability to perform certain duties. On August 29th, 2002, Article 313th of the Interpretation of Criminal Law of People's Republic of China (PRC), which was adopted by the NPC Standing Committee at its 29th meeting, further clarified the situation of "having the ability to refuse to execute, and the circumstances are serious", including "the person subjected to execution conceals, transfers, intentionally damages or transfers his property for free, or transfers his property at an obviously unreasonable low price, so that the judgment or ruling cannot be executed".
Accordingly, if the debtor has the above-mentioned four ways to transfer property and is unable to fulfill the obligations stipulated in the judicial documents, it shall meet the constitutive requirements of "refusing to execute the judgment or ruling" stipulated in Article 3 13 of the Criminal Law. Creditors can complain to the court, and the court responsible for enforcement will hand it over to the public security organ for investigation.
To sum up, when investigating the debtor's transfer of property, the creditor shall further find out whether there are four situations mentioned in this article. If so, a lawsuit should be brought to the court in time, and the criminal responsibility of the debtor can be investigated with criminal law weapons to protect the legitimate rights and interests.
Third, the common methods of asset transfer
1, transfer
Transfer means that the sponsor can directly transfer the basic assets to the special purpose company without changing or terminating the original contract, that is, the transaction does not involve the original debtor. The corresponding concept in the civil law system is assignment of creditor's rights. According to the general rules of American contract law, as long as the original obligee (promoter) and the new obligee (spy) reach an agreement on the transfer, the transfer will take effect between the two parties, and it is not necessary to obtain the debtor's consent or notify the debtor or take other further actions. However, in order to constitute an effective transfer, that is, to have effect on the debtor, the seller must not only specify the meaning of "transfer" in the agreement, but also send a notice of transfer to the debtor. However, if the promoters continue to serve as the asset pool, they may be exempted from the notification obligation. If both parties agreed in the original contract to restrict the transfer, the transfer agreement shall not be effective for the debtor. Transfer is a simple and economical transfer method, and it is also the most commonly used transfer method in the process of securities.
2. Debt rollover
That is, the creditor-debtor contract between the sponsor and the original debtor is terminated first, and then the special purpose company and the original debtor sign a new contract according to the terms of the original contract, thus transforming the creditor-debtor relationship between the sponsor and the original debtor into the creditor-debtor relationship between the special purpose company and the original debtor. Renewal is an effective and strict way to transfer assets, so there is no legal obstacle in any jurisdiction. However, this method also has some disadvantages that can not be ignored: because the special purpose company and the original debtor need to sign a new contract, this method is cumbersome, time-consuming and laborious. Only when the number of original debtors is small can securities adopt this method.
3. Partial participation
In this way, there is no contractual relationship between the special purpose company and the asset debtor, and the basic contract between the sponsor and the original debtor continues to be valid. Assets do not have to be transferred from the sponsor to the special purpose company. SPV first issues asset-backed securities to investors, and then transfers the raised funds to the sponsors, and the transfer amount is equal to the portfolio value. Investors can borrow money from special purpose companies or sponsors from special purpose companies. The funds for special purpose companies to repay loans come from the income generated by asset portfolio.
According to the law, there are two kinds of personal property transfer: one is the transfer of immigrant property; The second is the transfer of inherited property. Either way, you need to apply first.