Court procedures receive Malaysian writ summons

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YOU HAVE BEEN SERVED 6 Things You Must Know in a Malaysian Court Summons

您已经被传讯,马来西亚法院传票6件您必知的事情

Writ of Summons (Writ Saman) And Other Procedures, Receiving One

In this article we will discuss the fastest way to get a Judgment and then how can you recover your debts vide the execution of the Judgment.

传讯令状及其他程序

在本文中,我们将讨论获得判决的最快方法,然后讨论如何通过执行判决来追讨债务。

1 What is a Writ of Summons?

什么是传讯令状?

1.1 When you want to sue someone to recover a debt, you may file a Writ of Summons. In other circumstances when a matter involves a substantial dispute of facts, it is preferable that the action (court case) should  begin by way a Writ of Summons.

1.1如果您要起诉某人以追讨债务,您可以提呈传讯令状。其它情况下,如果涉及实质性事实纠纷,最好是以传讯令状展开诉讼程序(法庭案件)。

In the writ, there would be a memorandum and endorsement of claim which briefly state the Plaintiff’s claim. It is a document to inform the Defendant of the suit and command the Defendant to enter appearance for the suit within the period stated in the writ.

令状中有一份通函和对索偿的确认,简要概述了原告的索偿。该文件旨在通知被告该诉讼,并命令被告在令状规定的期限内“现身”/出庭。

1.2  Writ of summons shall be issued in conjunction with the Statement of Claim of the Plaintiffs. If the Plaintiff does not file the Statement of Claim when the Plaintiff issued the writ, Plaintiff will need to file the Statement of Claim within 14 days after the Defendant entered into appearance.

1.2传讯令状将与原告的申索陈述书一并发行。如果原告在发出令状时未提呈申索陈述书,则原告必须在被告“现身”/出庭后14天内提呈申索陈述书。

1.3  The Writ of Summons will command/ direct the Defendant to enter appearance for the suit within the period stated therein.

1.3传讯令状应命令/指示被告在所述期限内“现身”/出庭。

Substituted Service

替代送达

1.4  if the Writ of Summons cannot be served, the Plaintiffs will have to apply for it to be served by way of substituted service.

1.4如果不能送达传讯令状,则原告需要申请替代送达的方式送达

2 What will happen if I do nothing after receiving the Writ of Summons?

如果我收到传讯令状后什么也不做会发生什么?

2.1 If the Defendant failed to enter appearance within time stipulated in the Writ of Summons, the Plaintiff may enter a judgment in default of appearance against the Defendant.

2.1如果被告未能在传讯令状规定的时间内“现身”/出庭,则原告可对被告提出缺席判决。

2.2 In the event the Defendant failed to enter a Memorandum of  Appearance upon receiving the writ, the Defendant is not be entitled to serve the Defendant’s defence unless consent from the Court is granted.

2.2如果被告在收到令状后未上呈出庭通函,除非获得法院许可,否则被告无权将被告辩护送达。

2.3 If the Defendant should fail to file a Statement of Defence after entering a Memorandum of Appearance, a Judgment in Default may also be entered against the Defendant

2.3如果被告在上呈出庭通函后未能提交抗辩陈述书,则也可对被告提出缺席判决。

3 How much time do I have after receiving the Summons?

收到传票后我有多少时间?

3.1 The Defendant has to enter appearance within 14 days after the service of the writ. The Defendant can either appear personally or through a solicitor at the Registry of the Court.

3.1被告必须在令状送达后的14天内“现身”/出庭。被告可以亲自出席,也可以通过律师在法院主簿署处出席。

3.2  If the Defendant intend to defend against the suit, the Defendant have to file and serve a Statement of Defence to the Plaintiff within 14 days after the Defendant entered appearance. If the Statement of Claim has not been served on the Defendant, within 14 days after the Statement of Claim is served on the Defendant.

3.2如果被告希望为诉讼辩护,被告必须在被告“现身”/出庭后14天内向原告提出辩护陈述书并送达于原告。如果申索陈述书尚未送达于被告,则在申索陈述书送达于被告后的14天内。

4 What is a Memorandum of Appearance?

什么是出庭通函?

4.1 Memorandum of Appearance is a mode for the Defendant to enter into appearance. It is a court document to request the court Registry to enter appearance of the Defendant.

4.1出庭通函是被告人“现身”/出庭的一种方式。这是一份法院文件,要求法院主簿官输入被告的“现身”/出庭。

4.2 The Memorandum of Appearance have to be served to the Plaintiff on the date the Defendant entered appearance.

4.2出庭通函必须在被告“现身”/出庭之日送达于原告。

5  What is Summary Judgment?

什么是简易判决

5.1 Summary Judgment is an action applied by the Plaintiff to obtain judgment against the Defendant without going to trial. A summary judgment is applied when the Plaintiff believes that the Defendant has no defence to the Plaintiff’s claim. Plaintiff can apply for summary judgment after:

5.1简易判决是原告在不进行审判的情况下针对被告获得判决的一个行动。简易判决适当于原告认为被告对原告的主张无辩护。原告可以在以下情况下申请简易判决:

5.1.1 The Writ of Summons and Statement of Claim has been served on to the Defendant; and

5.1.2 The Defendant entered an appearance

5.1.1传讯令状及申索陈述书已送达于被告;和

5.1.2被告人现身

5.2  the Defendant may also apply for a summary judgment for counterclaim with the belief that the Plaintiff has no defence to the counterclaim.

5.2被告还可以在反申索中认为原告无法抗辩,而在反申索中申请简易判决。

5.3  The court will only grant summary judgment if the court is satisfied that there are no triable issues or questions. If there is an issue in dispute which in the court’s opinion needs to be tried, the summary judgment application will be dismissed.

5.3只有在法院确信没有任何需要审判的问题和疑问时,法院才会作出简易判决。如果争议中存在法院认为需要审判的问题,则简易判决申请将被驳回。

6  What is a trial/ full hearing?

什么是审判/全面聆讯?

6.1 A trial is a proceeding before the court to examine the cause or matter of the suit, and will involve the examination of oral evidence from the witnesses of both sides.

6.1审判是在法庭上一项审问诉讼起因或问题的程序,并将涉及双方证人的口头证据的审问。

6.2  Whereas a hearing is an examination of a cause or matter before the court. There are usually no examination of witnesses during a hearing.

6.2聆讯是在法庭上对起因或问题的检查。聆讯期间通常不对证人进行审问。

6.3 During the pandemic in 2020 and 2021, hearing in court and Trial may be conducted via Zoom, click on the following articles for more details:

6.3 在2020年和2021年疫情期间,法院是通过Zoom来进行听审和审判,点击以下文章了解更多详情:

A Trial Via Zoom In The Wake Of The Covid-19 Pandemic

Zooming In The Court Of Appeal In E-Appellate

Online Hearings In Court – A New Era In The Covid 19 Pandemic

6.4 To understand more about the Trial procedures, please refer to this article: 6 Tips To Trial Procedures In Malaysian Courts

6.4 要了解更多有关审判程序的信息,请参阅这篇文章:6 Tips To Trial Procedures In Malaysian Courts

7  What happens after a judgment is entered against me?

对我作出判决后会发生什么?

7.1 When a judgment is entered against the losing party, the winning party may enforce the judgment against the losing party. The judgment can be enforced in one or more of the several manner shown below.

7.1当对败诉方作出判决时,胜诉方可以对败诉方执行判决。判决可以通过以下一种或多种方式来执行

7.2  However, the losing party may apply to the court for a stay of execution to stay the enforcement of the judgment against the losing party.

7.2但是,败诉方可以向法院申请延缓执行,以延缓对败诉方的判决的执行。

AFTER JUDGMENT: Order for payment/ recovery of money – Writ of Seizure and Sale

判决后:支付庭令/收回款项庭令-查封与拍卖令

8 After you have obtained a JUDGMENT, you may wish to execute the JUDGMENT vide a writ of seizure and sale is a direction to the Sheriff or Bailiff with respect to the Magistrates’ and the Sessions Court, to seize the movable properties of the debtor in order to satisfy the amount of the judgment debt with interests and the costs of execution.

8获得判决后,您可能希望通过查封与拍卖令的方式执行判决,这是推事庭和地方法庭给予法警或执行官的指示,需查封债务人的动产,以满足判决债务金额以及利息和执行成本。

8.1  However, the Sheriff or Bailiff is not entitled to seize the Judgment Debtor’s properties listed under section 3 of the Debtors Act 1957.

8.1但是,法警或执行官无权查封《 1957年债务人法》第3条所列的债务人财产。

9   Possession of Immovable Property – Writ of Possession

不动产所有权- 所有权令状

9.1 A writ of possession is a direction to the Sheriff or Bailiff with respect to the Magistrates’ and the Sessions Court Judgment to take possession of the immovable property belonging to the judgment debtor

9.1所有权令状是根据推事庭和地方法庭的判决给予法警或执行官的指示,以接管判决债务人所拥有的不动产。

9.2 However, the judgment creditor will need to obtain leave from the court before a writ of possession can be issued.

9.2但是,判决债权人必须先获得法院许可,然后才能发出所有权令状。

9.3 The judgment creditor will need to serve a notice of the proceedings to every person in actual possession of the immovable property in order to satisfy the court that leave should be granted.

9.3判决债权人必须向每一名实际拥有不动产的人送达诉讼通知,以使法院信纳应允予许可。

Delivery of Movable Property – Writ of Delivery

动产交付-交付令

10 A writ of delivery is a direction to the Sheriff or Bailiff with respect to the Magistrates’ and the Sessions Court, seize and deliver a specific movable property as defined in the order or judgment to the judgment creditor.

10交付令是向法警或执行官就推事庭和地方法庭的指示,查封并交付庭令或判决中所定义的特定动产给判决债权人。

Bankruptcy

破产法

11 In Malaysia, the law provides that before a judgment creditor can issue a bankruptcy petition, the minimum sum of the indebted sum must be RM100,000.

11在马来西亚,法律规定在判定债权人可以提出破产呈请之前,所欠的最低金额必须为10万令吉。

11.1 The creditor normally takes a course of action to obtain a judgment against the debt.

11.1债权人通常会采取法律行动以取得债务判决。

11.2 Thereafter the judgment creditor will issue a bankruptcy notice against the judgment debtor.

11.2判决债权人随后将对判决债务人发出破产通知书。

11.3 Upon failure of judgment debtor to settle the debt in compliance with the bankruptcy notice, the judgment debtor commits an act of bankruptcy and the judgment creditor may commence a bankruptcy action against the judgment debtor.

11.3判决债务人未能按照破产通知书清偿债务时,则判决债务人作出破产行为,判决债权人可对判决债务人提起破产诉讼。

12 For further information, please refer to http://alexchanglaw.com/index.php/bankruptcy-malaysia-general-information/

12 更多相关信息,请参阅 http://alexchanglaw.com/index.php/bankruptcy-malaysia-general-information/

Companies Winding Up

公司清盘

13 Compulsory (Companies) Winding-up Petitions in Malaysia are filed pursuant to section 218 of the Companies Act 1965.

13马来西亚(公司)强制性清盘呈请根据1965年《公司法》第218条提呈。

13.1 It is a legal process by which the Director General of Insolvency or a liquidator is appointed by the court to wind up the affairs of a company.

13.1这是一个法律程序,破产部总干事或清算人由法院任命,以清盘公司事务。

13.2 After a winding up order is granted, the liquidation process of the company begins. However, it does not mean that the creditors of the company will necessarily get paid.

13.2发出清盘令后,公司的解散程序开始。但是,这并不意味着公司的债权人会得到偿还。

13.3 The purpose of winding up a company is to ensure that all the company’s affairs will be dealt properly.

13.3清盘公司的目的是确保妥善处理公司所有业务事项。

13.4 For further reading, please refer to http://alexchanglaw.com/index.php/what-is-compulsory-winding-up/

13.4更多相关阅读,请参阅 http://alexchanglaw.com/index.php/what-is-compulsory-winding-up/

13.5 To know more about what happens after compulsory winding up, please refer to http://alexchanglaw.com/index.php/what-happens-after-compulsory-winding-up/

13.5要了解更多有关强制清盘后的情况信息,请参阅 http://alexchanglaw.com/index.php/what-happens-after-compulsory-winding-up/

Garnishee Proceedings

第三方债务人法律程序

14 Judgment creditor who has obtained a judgment for payment of money against a judgment debtor may apply to the court to order a third party indebted to the judgment debtor (Garnishee) to pay the debt which is due or accruing due to the judgment debtor to the judgment creditor.

已对判决债务人获得金额判决的判决债权人可向法院提出申请,命令欠判决债务人债款的第三方债务人(Garnishee)向判决债权人支付判决债务人到期或应计到期的债务。

14.1 The garnishee includes but not limited to the judgment debtor’s bank or other financial institution in which the judgment debtor has a current or deposit account with.

14.1第三方包括但不限于判决债务人在其中拥有活期账户或存款账户的银行或其他金融机构。

Charging Order

押记令

15 The court may impose a charge on any interest to which the judgment debtor is beneficially entitled to secure the payment of the judgment sum.

法院可从判决债务人有实益的权利中施以抵押以确保判决金额的支付。

15.1 Charging order can be applied to securities, including but not limited to, any Government stock and any stock of a registered company under any written law. This also includes the dividend or interest payable under stocks.

15.1押记令可适用于证券,包括但不限于任何政府股票和根据任何成文法注册的公司的任何股票。这还包括根据股票支付的股息或利息。

Order of Committal

拘押令

16 In the case where the judgment debtor disobeys the judgment or order given by the court, an order of committal can be issued by the court.

如果判决债务人不遵守法院的判决或命令,则法院可以发布拘押令。

16.1 The order of committal is to enforce the judgment or order should the person the order or judgment is made against disobeys the order or judgment given.

16.2 The court may issue an order for committal in the following:

16.2.1 Failure to do an act within a specific time;

16.2.2 Failure to deliver any movable property in accordance to the order or judgment; and

16.2.3 Failure to abide to a judgment or order for the payment of money.

16.1当针对某人而做出的判决或命令不被遵从,则拘押令可执行该判决或命令。

16.2法院可以就以下事项发布拘押令:

16.2.1在一定时间内没有采取行动;

16.2.2没有根据命令或判决交付任何动产; 和

16.2.3不遵守付款判决或命令。

“The Malay Version is a translation to the best efforts and if there is a conflict between the translation and the English version, please refer to the English version.”

“此版本是我们尽心的翻译,如翻译版本与英文版本存在冲突,请以英文版本为准。”

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