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On Real Estate Execution System

Posted on:2008-08-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:X Y FanFull Text:PDF
GTID:1116360218961363Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In executing the creditor's right over money, real estate, as a subject matter of execution, is of great significance for realizing the creditor's effective credit. However, due to outdated execution legislation and execution theory research, it is hard for China's existing real estate execution procedures to meet the need of execution practice. How to improve the real estate execution system through reform, and ease the interest conflict between the debtor and creditor under the precondition of ensuring efficient realization of creditor's right are a basic point and main thread of the research in this paper.This paper is made up of ten chapters.Section One: Real estate in the sense of execution law means any real estate and real estate right that can be appraised at the current rate as a subject matter of execution or that can be delivered to the creditor to determine the creditor's right. Compared to the real estate in the sense of civil law, real estate in the sense of execution law has two features: 1. In addition to the real estate in the sense of civil law, it also includes specific movable estate that can be executed with real estate method, such as watercrafts and aircrafts. 2. Execution law focuses on the negotiability of real estate. Theoretically and practically, it is hot disputed whether State-owned appropriated land use right, rural collective land use right, leased real estate use right, unauthorized buildings and other real estate rights can be used as debtor's liability property. Through analysis, the author considers that, without violating the national macro policy on real estate administration, these real estates and real estate rights should all become the debtor's liability property. At the same time, the auth reviews the real estate legislation execution in typical countries with separate legislation, special legislation, and mixed legislation.Section Two: Basic principles for real estate execution are basic principles and fundamental guidelines to be followed by the execution organ, execution parties, and other participants in the real estate execution procedures. Basic principles in the real estate execution procedures include: modest and restriction principle, register principle, public auction principle, and consolidated execution principle.Section Three: Real estate close-down effects consist of: time effect, subjective effect, and objective effect of close-down. Starting point of time effect of real estate close-down should vary from the subject. At the same time, there are practically more disadvantages than advantages to set the real estate close-down time limit. It should be replaced with the auction date system. Likewise, when facing different subjects, real estate close-down should have different contents of effect. But the uppermost effect of real estate close-down is on the debtor. On the issue of effect of debtor's real estate close-down, relatively ineffective view should be accepted. The objective scope of effect of real estate close-down not only covers the real estate itself, but also the accrued interest, substitutes and appurtenants.Section Four: Such features of real estate auction as public law oriented, specific auction subject, non-acceptable disposal of subject matter, unequal rights and obligations in the legal relation of auction have determined that auction is an action of public law. When lawfully auctioned, real estate will produce positive effects such as transferring the ownership of real estate. When the auction becomes null and void due to such reasons as malicious collaboration of bidders, real estate will produce negative effects such as auction over again. To protect the certainty of auction effect, if there's any leasing right or usufructuary right burden on the real estate before auction, which may impede the realization of preset security interest, the execution court should carry out auction after directly deducting such leasing right or usufructuary right. After the real estate is auctioned, if the property right owner of the real estate refuses to hand over the real estate to the buyer, the execution organ should establish hand-over system according to its power and compulsorily deliver the real estate to the buyer.Section Five: Compulsory administration is an execution measure for the execution organ to select and appoint an administrator to manage the real estate that has been closed down and pay off the monetary creditor's right with the income earned. The author gives detailed definitions in nine terms, including the features, types and conditions of compulsory administration of real estate, uniqueness of administrated target, execution subject, starting-up, effect, selection and appointment and legal position of administrator, termination and effect of administration.Section Six: As there are more subjects on the right to real estate, the allocation of real estate prices are more complicated. On the basis of referring to foreign legislation, we should give a correct order to the allocation of priority and ordinary creditor's right in real estate by combining existing law of China, and allow the creditor's right in the sense of public law to participate in the allocation process.Section Seven: The author considers that, in terms of execution law, for the property right change resulted from legal action, China should stick to the effective requirement of real estate register. For the property right change resulted from factual legal action, the date of action should be the time point of the real estate property right change. With this precondition, due to the fact that the actual ownership of real estate is separated from its register, in order to protect the creditor and the third person, it is suggested to establish the register cancellation litigation, substitutive register litigation, premonitory register and real estate priority systems.Section Eight: Legal principle for the execution force expansion in real estate execution procedures lies in the implementation of fair execution idea and pursuit to efficiency value. On the issue of real estate execution force expansion, in addition to the accordance with substantive law, the real estate transaction withdrawal system should be established to prevent the fact that the debtor may displace its real estate property through making related party transaction to escape from execution.Section Nine: Remedies for defective action of real estate execution may be divided into non-litigation remedy and litigation remedy. After defining different remedies, we should correctly understand the shortcomings existing in the real estate execution remedy system of China and rebuild the system.Section Ten: The innovation and reform of real estate execution system shall finally be materialized in legislation. The four fundamental principles are summarized by the author in china's real estate execution legislation under the preconditions including the rather weaker effectiveness of the legal document, the uncoordinated between the legal rules, the inferior operational situation in present, and so on.1. To safeguard the obligatory right of creditor furthest;2. To simplify the executive routines furthest;3. To ensure the fair procedure;4. To consider the China's national condition.Simultaneously the author also proposed three concrete questions of the real estate which should be attentive in real estate execution legislation, such as the execution legislation form of the real estate, the execution jurisdiction of the real estate, and the execution name of the real estate.
Keywords/Search Tags:Real Estate Execution, Property right change, Execution force expansion, Execution Remedy, Execution legislation
PDF Full Text Request
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