Study On The Participation In Distribution System In Civil Enforcement

Since the establishment in the Judicial Interpretation of the Civil Procedure Law in 1992,participation in distribution has been more than 20 years.However,the controversy surrounding this system has never stopped and the judicial practices are diverse.Based on theoretical disputes and problems in the judicial practice,this thesis studies on basic issues such as the deification of the system,the existent necessity,the function of participation in distribution system and value orientation,distribution principle.On this basis,this paper discusses,integrating theory with practice,the application conditions,debt repayment priorities and relief system.Apart from the introduction and conclusion,this thesis consists of eight chapters,nearly 190,000 words.Introduction introduces the reasons for this study,problems existing in participation in distribution system,significance of research,the theoretical research status,research methods,research innovation.Chapter One discusses the demarcation of the participation in distribution system.There are broad sense and narrow sense of the participation in distribution system.This thesis discusses the system in the broad sense.Participation in distribution refers to the distribution system in which,after the disposal of the debtor's property by the executive body,other creditors apply for the allocation of money to realize their monetary claims.Participation in distribution is essentially a method of settlement of competing monetary claims.Its function is to use the same procedure to solve the concurrence of many monetary rights,save cost and improve efficiency.Although there are similarities between the participation in distribution system,the individual execution and the bankruptcy system,the difference is obvious.Participation in distribution grew out of enforcement procedures,but enjoys relative independence,which belongs to different methods of distribution of the debtor's property,along with enforcement procedure and insolvency proceedings,and should not be influenced by other methods,particularly insolvency proceedings.Chapter Two demonstrates the necessity of the existence of the participation in distribution system.When it comes to competing financial claims,the individual execution procedure,which pursues the value of "first come first served",is challenged.On the conditions of China's underdeveloped social security system,the individual implementation procedure faces the dilemma how to guarantee claims such as labor claim,personal damage compensation.This is one of the necessities of participation in the distribution system.Bankruptcy law can't fully settle the problem of concurrence of monetary claims,which is the realistic basis why the system should exist.The judicial practice that enterprises refer to participation in distribution is not the main reason that insolvency law is "placed on the shelf".The main reason for insolvency difficulty is that creditors naturally lack the inherent impetus for the commencement of insolvency proceedings.There are many design defects of insolvency law,such as absence of the simple insolvency proceedings,inadequate of insolvency judges.Trying to cancel the corporate reference for participation in the distribution system as a "forcing" mechanisms will not solve the problem of bankruptcy.Bankruptcy ex officio by the court itself is not reasonable and has no realistic foundation of judicial practice.Participation in the distribution system provides a new method of wealth distribution of a debtor's property.When monetary claims contend,the law provides two solutions: the bankruptcy system and participation in the distribution system.The insolvency proceedings provide a collective discharge and general satisfaction procedure whose result is the qualification of the debtor(enterprise)or rebirth of the subject(natural person),debt forgiveness.Participation in the distribution system is designed to solve the competing monetary claims where the parties do not wish to commence insolvency proceedings or are unable to start insolvency proceedings,which does not eliminate the subject qualification of the debtor and lead to demise of the claims.Choice of remedy should be referred to the market parties rather than the mandatory provisions of the law.Through debt repayment priority arrangements on priorities such as labourers,victims of personal injury,the system safeguards social justice.Chapter Three expounds the functions of the participation in distribution system.Two factors affecting the function of participation in distribution system are the essence of participation in distribution system and bankruptcy legislation.It is a mistake to define the function of participation in distribution system to make up for limited-bankruptcy system in China,which is the main reason why the system is not running smooth and theoretical disputes.The first function of the system is that creditors can get more money using the same implementation procedures and,at the same time,reduce implementation costs,rather than make up for the deficiencies of bankruptcy law.The mode of bankruptcy legislation is not the determinant to the function of participation in the distribution.Some countries and regions such as France,Japan,South Korea and Taiwan,Where market parties enjoy general bankruptcy,adopt egalitarian participation in distribution system.Charter Four discusses values involved in the participation in distribution system.The essence of participation in distribution determines that its pursuing value is efficiency,although fair value accounts for more important position than in enforcement proceedings.For the creditors who firstly find and control the property of the debtor should be given appropriate priority.Right to life is the most basic right of maintaining the civil subject's life,whose interests should take precedence over commercial interests.There is natural impulses to compete with the people for profits in the economic and social fields,legislation requires that "natural impulses" to be regulated.The value which country does not compete with the people should be carried out in participation in distribution system.Chapter Five argues the issue of principles.The establishment of the principle of participation in distribution system considers by countries different legislation,culture,social systems,and many other factors,there is no any principle which is absolute good or bad.With priority principles for Germany and the United States,there are many differences,the same as France and Japan.The trend of bankruptcy legislation is the general bankruptcy.However,the best partner of general bankruptcy is not absolutely the priority principle.France,Japan,South Korea,Peru,Taiwan are the good examples of "general bankruptcy and egalitarian" model legislation.Most countries in the continent implement egalitarian principle.There are no enough reasons for changing current principle,even if we adopt the general bankruptcy legislation in the future,we can still apply the principle of equality or compromise principles.In generalized distribution system,we should establish the principle of mixed: first,when the debtor's property is sufficient to pay off all debts,priority doctrine applies.Second,at the time of the debtor's property is insufficient to satisfy multiple claims,eclecticism applies.Thirdly,creditors with priority applies the principle of priority.Chapter Six is a study on the applicable conditions of participation in distribution system.There are different theories surrounding the applicable conditions.The main points of contention are: whether the debtor's property is not sufficient to satisfy all claims is a condition and whether enterprise can apply the participation in distribution system.Applicable conditions of participation in distribution system should include: multiple creditor requests,in respect of the same debtor,monetary claims,qualified creditors,application within the statutory time limit.The launch condition that property of the debtor cannot satisfy all claims causes likely theoretical controversy on the "objective criteria" and "subjective" and the abuse of executive power,which should not be a suitable condition,especially in the broadest sense of participation in distribution system.The qualified creditors should include: the creditor with enforcement basis,the creditor with priority or guarantee,the creditor with first preservative measure.The debtors should include all civil subjects including enterprise.The qualified party can apply when the enforcement procedure begins.The deadline of applying for participation differs according to whether the property need to realize: if so,the deadline is the day before the property is sold;If not,the deadline is the day announced in the notice.The creditor's right includes money obligatory right and rights which can be transferred into money obligatory rights.Chapter Seven focuses on the repayment rank of creditor in the system of participation in distribution.The repayment rank of creditor is restricted by the conditions that debtor's properties are not sufficient to pay off all the creditor.When debtor's assets are sufficient to cover multiple money obligatory rights,there is no substantive impact on the rights of the creditors.But we have to fully understand the limitations of priority rules in judicial practice: the debtor's property itself is very limited after the realization of certain statutory priority rights.At this moment,any complex liquidation order is objectively not beneficial.Instead,providing a plethora of claims having priority status is equivalent to in fact deny the claims ranking last,including the so-called "priority".Thus,when the debtor's property is not enough to satisfy multiple claims,the basic principle should be that unless you must,otherwise not set.Even if you set the priority of a claim,such claims should have a reasonable limit,which is to minimize the impact of the principle of equality of the claims.Based on protection of civil subject's basic living rights and uphold the principles of judicial practice and simple legal values in the past,a certain period,within the scope of a number of labor creditor's rights and the personal injury claim(except for compensation for mental damage,compensation for deaths)should have priority over the security right.There is logic confusion between laws on tax priority provisions and security claims.Tax lien bears a moral hazard that the tax authorities indulge in negative act and sloth administration,and the opacity of the amount of tax,the time of tax producing will impact on transaction security.Thus taxation should be dealt with common claims in the same rank.General speaking,the repayment rank of creditor in the system of participation in distribution should be: obligatory right of common benefit,labor claims and personal damage,claims with guarantees,claims with preservation measures,tax and the other general claims,administrative and judicial fine,criminal fine and confiscated property.Chapter Eight argues the relief system of participation in distribution system.The reasons why participation in distribution system needs the relief system are that rights limit power,safeguard fair value and equal protection.The concurrence of implementation relief is recognized by the Civil Law System,which allows the parties to select among the execution objection,action of dissent and ordinary action.However,China's legislation of execution greatly influenced by Taiwan does not recognize the concurrence of implementation relief,which established the relief mode of "objection-objection action".The legislation does not give the specific objection reasons.Too much objection can be led to the objection action,which greatly cut the efficiency value of the system.It should be distinguished between general enforcement objection,objection in participation in the distribution and objection informs in participation in the distribution in the relief system.It should be given different relief system according to different objection reasons.If the objection can be settled through the relief mode of "objection-review",the relief mode of "objection-objection suit" should be denied,which is the result of admitting the first value of efficiency.Except for objection that claim exist or not,other objections should follow the channel of "objection-review".