Research On The Parties Of Execution

The legal system of forcible execution embraces multifarious and disorderly contents, including substantive issues and procedural issues, litigious events and nonlitigious events, various institutional theories and different legal agencies. Under such a system, the institution of the party of execution is greatly important and complicated. In the traditional theory of civil procedure, the execution procedure is regarded as a party of the civil procedure. Accordingly, the party of execution is equated with the party in civil actions. As a result, there is a lack of systematic study on the theories and practice relevant to the party of execution.In fact, with his independent characters, the party of execution is quite different both from the party to civil actions and from the subjects of rights and obligations in the substantive law. Currently, due to the lack of in-depth study on the issues relevant to the party of execution, it is common in practice to expand the subjective scope of the executive force, to change or to add at will parties to an action, which, to a certain extent, results in the chaotic situation of execution and in more difficulties in execution. Thus, to conduct an in-depth research on the legal system concerning the party of execution is of significance both in theory and in practice. Given the above-mentioned factors, this dissertation attempts to explore the issues relevant to the party of execution by studying the theory and practice in the relevant fields and by combining the results of domestic and foreign researches with the actual situation of execution in our country for the benefit of formulating the theory and the practice of forcible execution in our country.The dissertation consists of seven parts:The preface introduces the legislation models of forcible execution in the civil law countries, and their relevant researches; the status quo of the researches on the institution of forcible execution in our country; and the theoretic and practical significance of the research on the party of execution. It also presents the purposes and train of thoughts of this dissertation.Chapter one is a survey of the party of execution. It is the theoretical basis for the research of the dissertation. It focuses on the concepts, the legal features of the party of execution, the subject qualifications and the scope of the party of execution. In delimiting the scope of the party of execution, it points out clearly that the theoretic basis for the change of the party of execution is the identity of the expansion of the subjective scope of the executive force with the relationship between the subjects of execution. Chapter two focuses on the theory of the expasion of the subjective scope of the executive force, which is one of the bases for execution.Starting from the connotation of the executive force of the judgment and that of res judicata, it demontrates the differences between the two in their functions, purposes, forms, ways of expanding the subjective scope, and so on. Meanwhile, it makes it clear that the expansion of the subjective scope of the executive force is an important theoretic basis for the change of the parties of execution. Subsequently, it discusses the legitimate grounds and principles for expanding the subjective scope of the executive force.Chapter three conducts a typological analysis on the expansion of the subjective scope of the executive force. It proceeds from the problems in the provisons of the existing law on changing and adding parties of execution. It classifies the expansion of the executive force into three categories: the successor of the party of execution, the person who is in possission of the subject matter for the party of execution or his successor, the said third party in litigation assupmtion. Finally, it carries out the analytical demonstration on the three categories respectively.Chapter four states the long-standing mistaken ideas in execution practice about the expansion of the subjective scope of the executive force through analyzing the liability of the surety for execution or the assistant in execution, the exercise of the creditor’s rights enjoyed by the person against whom a judgment or order is being executed, the enforcement of the joint and several obligation, and the enforcement of husband-wife joint obligation.Chapter five analyzes the partnership, the wholly private-owned enterprises and the branches of the business entity, and discusses the change of the party of execution caused by the identity of subject relationship, such as the personality and the confusion. It also makes a systematic study on the denial of the personality of the legal entity and analyzes the problems of the change of the party of execution caused by such denial.Chapters two, three and five constitute the main parts of this dissertation as well as the key points under consideration.Chapter six puts forward detailed proposals for establishing and improving the procedure of changing the party of execution. It argues that the procedure of changing the party of execution should be commenced by the application of the creditor, the execution organization should examine such application and determine on the rationality of changing the party of execution. It also suggests that proceedings for the action of execution and the action of the debtor’s objection be established to provide the creditor and the debtor with means of adequate relief.