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Study On Contract Of Civil Execution

Posted on:2020-12-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y LinFull Text:PDF
GTID:1366330572489867Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The implementation of the reconciliation system is a system that is often applied and has the most controversy in China's civil enforcement practice.In the theory and practice of civil execution,there have been many disputes about the connotation,nature,procedural effects,and breach of contract relief of the implementation of reconciliation.From the perspective of extraterritorial enforcement theory,the most similar to China's implementation of the reconciliation system is the implementation contract theory of the civil law system.The so-called execution contract refers to the agreement for the interests of the debtor or the creditor,and the parties or the outsiders have a direct or indirect effect on the present or future implementation.In the theory of extraterritorial civil execution,the execution contract also belongs to the litigation contract in a broad sense.The problems in the implementation of the reconciliation system at the legislative and practical levels are mainly due to the lack of relevant theoretical research,especially the lack of research on the implementation of contract theory in China.Taking the theory of extraterritorial execution contract as the introduction,the theoretical study of civil execution contract in China is carried out.In addition to the introduction,this article is divided into four chapters:The first chapter is the basic problem of implementing the contract.The article first points out that the core of the implementation contract is "the effect of the execution procedure",the relationship between the implementation of the contract and the private law contract,litigation behavior and litigation contract,the article is explained from several angles.Second,this chapter also explores the academic classification of execution contracts.Among them,the classification of the statutory execution contract and the intended execution contract,the execution of the expansion contract and the classification of the execution restriction contract belong to the traditional classification in the existing academic discussion of the execution contract.According to the different items in the implementation of the contract,this paper also proposes the classification of the purely procedural matter execution contract and the entity-related execution contract.The article points out that the academic classification is clear in the nature of the execution contract,the establishment and effective requirements,the procedural effect,and the breach of contract.Programs and other aspects are of great significance.At the end of this chapter,the nature of the execution contract is discussed.Among them,the execution contract of the execution right of the original execution authority belongs to the execution contract of the entity,which should have the dual attributes of private law and litigation.Other types of execution contracts are purely procedural matters.Execution contract,which only has the attributes of litigation.The second chapter is the evaluation of the effectiveness of the implementation contract.The effective evaluation of the execution contract refers to the process in which the execution contract conforms to the statutory or agreed establishment and effective requirements,and the procedural matters are legal in the scope of the executable parties,and the procedural effect can be achieved through the execution of the court evaluation.In the implementation of the three levels of contract effectiveness evaluation,the first is to implement the establishment of the contract and the effective requirements,followed by the legality of the execution contract,and finally the implementation of the contract has various problems and relief issues.As far as the first level is concerned,the article points out the establishment and effective requirements of the litigation behavior in the execution contract from the perspective of the attributes of the execution contract.As far as the legality of the execution contract is concerned,the article points out that the judgment standard of the execution contract legality is closely related to the execution program construction and execution program mode.In terms of the implementation of the contractual relief,the article first clearly defines the type of contract implementation.The article also points out that the form of the execution contract can be cured by means of amendments,no blame,etc.,and the essence of the contract can be enforced by means of enforcement of objections or separate litigation.Give rights relief.The third chapter is the procedural effect of implementing the contract and the remedy for breach of contract.The article first discusses the procedural effect of implementing the contract.In the dispute of the effect content of the litigation contract procedure,the effect of the implementation of the contract procedure includes the effect of the division and the effect of the burden.The effect of the division can be divided into direct and indirect treatment.Playing a role is the premise of indirect treatment.The article further points out that the implementation contract formed by the judges should be directly disciplinary effect of the judge's ex officio execution of the contract,the judge does not participate in the formation of the execution contract,and its indirect disposition is mainly achieved through the non-defaulting party's breach of contract relief.The article also clarifies the effectiveness and effectiveness of each type of execution contract,such as the execution contract of the execution rights of the original execution.As far as the implementation of contractual breach of contract relief is concerned,the article analyzes and points out that the execution remedy of the execution contract of the execution right of the original execution is mainly including the enforcement of the objection and the execution of the objection,the execution of the target,the implementation measures,the execution mode,etc.The execution contract of procedural matters,the way of default remedy is only one way of executing objection.The fourth chapter is the discussion of the specific types of execution contracts.Through the introduction of the executive contractual issues in the first three chapters,this chapter focuses on several special execution contracts.The first is to implement the reconciliation execution contract of the entity's claim right in the execution right,which has the dual attributes of the private law contract and the litigation contract.In terms of the effect of the program,the effect of executing the settlement program is to hinder the execution of the original execution based on the execution force.However,based on China's current "Implementation of Reconciliation Regulations" and other relevant judicial interpretation provisions and practices,the article proposes that the implementation of the implementation of reconciliation execution should be slow.After discussing the issues of breach of contract relief and effectiveness review,the article puts forward suggestions for future legislative improvement in light of existing legal provisions.This chapter then explores the non-execution of the contract,the article discusses the connotation,legitimacy,procedural effects and other related issues of not implementing the contract.In addition,the article also makes a simple theoretical analysis of the more common execution contracts in the legislation and practice of the sale and purchase judgment,the implementation of the property debt agreement.
Keywords/Search Tags:Execution Contract, Basic Theory of Execution contract, Establishment and Entry into Force of Execution Contract, Procedural Effect and Breach of Contract Enforcement of Execution Contract, Execution of Settlement
PDF Full Text Request
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