| Civil execution n distribution objection suits(referred to as the lawsuit of objection to distribution scheme in China's judicial practice)refers to the relevant creditors recorded in the distribution plan by the creditor specified in the distribution plan or the person subject to execution in the distribution plan Creditor's rights or distribution amount express objection.After the object of objection puts forward an objection,takes the object of objection as the defendant,the accusation is a litigation system that requests the court to re-judge the objection part of the distribution plan.The litigation system for participating in the distribution of objections originated from outside the territory.In China,the system is based on the judicial interpretation of the Supreme Court,which is not recorded in the Civil Procedure Law of the People's Republic of China.In judicial practice,participating in distribution,participating in distribution objection and the lawsuit of participating in distribution objection studied in this paper are of great significance to protect the legitimate rights and interests of the parties in the execution procedure and to improve the execution system of China.However,due to the fact that participating in the litigation of objection to distribution is a relatively new litigation system,the relevant normative basis is relatively rough,and the academic research is also seriously insufficient,which will inevitably lead to the confusion of theoretical understanding and judicial practice.It is urgent for us to deepen the theoretical understanding of participating in the appeal of objection to distribution and perfect the corresponding system and mechanism.In view of this,this paper will take participation in the distribution of objection litigation as a research topic to make contribution to our unified understanding and improvement of the system.There are seven chapters in this paper.In the first chapter,the author puts forward the research proposition,sorts out and summarizes the existing academic literature,and introduces the research methods and general structure of this paper.The seventh chapter is the conclusion of this paper.The second chapter is "The Theoretical Clarification of the Action of Civil Execution Participating in Distribution Objection".First of all,it introduces the origination of the action of participating in the distribution objection,and on the basis of explaining the relevant concepts,it combs the development of the system of participating in the action of objection to distribution.In China,there is no provision for the lawsuit of participating in the objection to distribution in the Civil Procedure Law of the People's Republic of China,which is established by the judicial interpretation of the Supreme Court,with low legislative rank and system.There is still a great space for the improvement of the system and the theoretical research.After the establishment of the personal bankruptcy system,the distribution system will have great changes in the distribution principles and application requirements.However,the major changes in the distribution system itself do not necessarily lead to the great changes in the participation in the distribution dissent and objection litigation.Therefore,the theoretical value of this paper will not appear because of thethe establishment of the individual bankruptcy system and digestion.Thirdly,it defines the litigation nature of the action of participating in the distribution objection.As to the litigation nature of the action of participating in the objection to distribution,there are theories such as the formation of the complaint,the confirmation of the complaint,the relief appeal,and the order appeal,among which the formation complaint is more popular.However,after considering the merits and demerits of various theories and the present situation of China's enforcement practice,this paper believes that it is more appropriate to define the action of objection to distribution as the lawsuit of relief.Finally,it discusses the value pursuit that should be adhered to in participating in the lawsuit of objection to distribution.Because the lawsuit of participating in the objection to distribution is a litigation procedure derived from the execution procedure,it should be more efficient than the general litigation in the process of promoting;at the same time,participating in the lawsuit of objection to distribution is in the final analysis the litigation procedure,and we must pay more attention to the protection of the procedural rights of the parties than the general execution procedure.It emphasizes procedural justice and provides a platform for full confrontation between litigation and defense.The third chapter is "The Constituent Elements of the Action of Civil Execution Participating in Distribution Objection".This chapter mainly studies the object of action,the parties and the cause of action in the action of objection to distribution.First of all,with regard to the object of action,this chapter points out that the object of action involved in the action of objection to distribution is the objection right of the creditor or the person subjected to execution,and the court's trial and adjudication in this action is whether the objection is tenable;the purpose of the plaintiff's filing the lawsuit is to ask the court to determine whether the objection right has the factual and legal basis.Secondly,as for the parties to the case,this chapter points out that the creditor who can be the plaintiff of this lawsuit,only when his substantive rights and interests are damaged by the distribution scheme and can obtain relief through participating in the litigation of objection to distribution,can he be the qualified plaintiff of this lawsuit.As for the executed person,whether the creditor participating in the distribution has the enforcement basis or not,he should be allowed to file the lawsuit as the plaintiff.If the person subjected to execution cannot raise objection to the objection to participate in the distribution filed by the creditor,he cannot participate in the lawsuit as the defendant of the lawsuit.Neither the creditor nor the person subjected to execution should be allowed to participate in the lawsuit as a third party.Finally,with regard to the cause of action,this chapter points out that the cause of action of participating in the action of objection to distribution should be legalized,that is,in this lawsuit,the creditor can only raise objection to the qualification of other creditors to participate in the distribution,the order of participation in distribution,the proportion of participation in distribution and the specific amount of money while the person subjected to execution may raise objection to the qualification of the creditor to participate in the distribution and the specific proportion and amount of distribution.The fourth chapter is "The Prosecution and Examination of the Action of Civil Execution Participating in Distribution Objection".This chapter points out that there are some problems in the current norms,such as imperfect norms for participation in distribution,lack of rules for the parties to raise objections,and the negative status of the court in participating in the objection procedure of distribution,which may lead to greater procedural risks.Therefore,it is necessary to improve the procedures for creditors to apply for participation in distribution and the court to make distribution plans.The rules for the parties to raise objections stipulate the obligations of the court to examine,explain and inform the parties in the process of raising objections and objections.Secondly,starting from the purpose of the plaintiff's litigation,this chapter analyzes how the court should state the problems of the original distribution scheme and how to make efforts to form a new distribution scheme in the plaintiff's judgment.On this basis,it points out that the first claim of the plaintiff should be to ask the court to reduce the defendant's distribution to XX Yuan,and the second claim is for the plaintiff to increase the distribution to XX Yuan,and the third claim is to amend the original distribution scheme according to the first and second requests after the judgment takes effect.In addition,the plaintiff can also make the fourth claim,that is,to order that the litigation costs of this case shall be borne by the defendant.Thirdly,in the lawsuit of participating in the distribution objection,the court should carry out necessary examination on the litigant's lawsuit,because the system of filing and reviewing the lawsuit of participating in the objection to distribution is decided by the particularity of the execution procedure,which is conducive to effectively curbing the malicious lawsuit and ensuring the high quality and efficient promotion of the follow-up trial procedure.In the stage of filing a case,the court mainly examines the subject of action,the time limit of prosecution,the cause of action and the materials of prosecution.At the same time,it is also necessary to smooth the relief channels of litigants' right to sue in the process of filing a case.Finally,the reasonable system of case acceptance fee has multiple institutional effects.However,due to the lack of unified system norms,the practice of collecting case acceptance fee in local courts is different and extremely chaotic.This paper points out that it is necessary to unify the standard of case acceptance fee,take the action of objection to distribution as a property case rather than a non-property case,make clear the calculation base of case acceptance fee,and take the difference between the quota scored by the plaintiff after winning the lawsuit completely and the quota specified in the original sub formula case as the base number of the case acceptance fee calculation.The fifth chapter is "The Procedure of Civil Execution Participating in the Lawsuit of Objection to Distribution".This chapter studies several important issues in the proceedings of the action of objection to distribution.First of all,the simplification of the litigation procedure of participating in the action of distribution objection are with the legitimacy in the system.We should learn from the small claims procedure to implement the first instance final trial,shorten the time limit of proof of the parties,simplify the trial organization,shorten the trial period,simplify the trial,and promote the reform of simplified judgment documents.Secondly,as for the joint action,in the action of participating in the distribution objection,only when multiple plaintiffs sue the same defendant based on the same cause of action can the joint trial be carried out,and it is not suitable to have the joint trial in any case where the other party or both parties are multiple parties.In nature,the joint action of multiple plaintiffs suing the same defendant based on the same cause of action should be defined as ordinary joint action.Thirdly,as for the defense methods of the parties,if the plaintiff reduces the cause of action,it means that the plaintiff withdraws the lawsuit and withdraws the objection.If the plaintiff changes the cause of action,the court should allow it to solve the disputes between the parties at one time.In terms of the radiation scope of the defendant's enforcement basis,if the plaintiff is the person to be enforced,it can If the plaintiff is a creditor,he cannot overturn the execution basis held by the defendant through participating in the action of objection to distribution,and can only seek relief by bringing a third party's cancellation action in addition to participating in the action of objection to distribution;the burden of proof in the action of participating in objection to distribution should be protected with that of ordinary civil action.In other words,the plaintiff must provide sufficient evidence to prove his claim.The defendant can not only provide evidence to protect his own rights and interests,but also need not.The sixth chapter is "The Judgment of Civil Execution Participating in the Lawsuit of Objection to Distribution and the Disposal of Follow-Up Matters".It mainly studies the form of judgment and its consequences under different circumstances,the effect of judgment and the distribution of the plaintiff's winning interest,and the legitimacy of the litigant's lawsuit for restitution of unjust enrichment after the termination of the distribution procedure.First of all,with regard to the form of adjudication and its consequences under different circumstances,if the action is illegal,it shall be ruled not to accept or reject the lawsuit;if the lawsuit has no reason,it shall be decided to reject the claim;if the action has a reason,it shall support or partially support the plaintiff's claim,that is,to reduce the amount of the defendant's creditor's participation in the distribution,or even cancel the qualification of the defendant's creditor's participation in the distribution,and increase the number of the defendant's creditor's e distribution amount of the plaintiff's creditors;in the lawsuit of participating in the distribution objection,the plaintiff may withdraw the lawsuit,but after the expiration of the legal prosecution period,if the plaintiff withdraws the lawsuit or the court decides that the case shall be handled as the plaintiff's withdrawal of the lawsuit,it shall be deemed that the plaintiff has withdrawn the objection to the original distribution plan;in addition,the lawsuit of participating in the objection to distribution can be settled.Secondly,with regard to the effect of the judgment and the distribution of the plaintiff's interest in winning the lawsuit,the judgment on the action of participating in the objection to distribution has absolute effect,that is,its effect can extend to the creditors other than the parties involved in the lawsuit of objection to distribution.In addition to the plaintiff's right to participate in the litigation,the plaintiff and the creditor should be equally entitled to the distribution of the litigation expenses All creditors shall share the benefits equally according to the distribution proportion.Finally,there is a great controversy about the legitimacy of the parties' action for restitution of unjust enrichment after the termination of the distribution procedure in Japan and Chinese Taiwan.In China,it is more appropriate to affirm the party's right to sue for restitution of unjust enrichment.This paper have the following three aspects of innovation:Firstly,this paper has made great contribution to the systematic research of the theory of the action of objection to distribution.At present,the academic and practical practice in China have very little research on participating in the appeal of objection to distribution,and only a few of them focus on some issues that they think are important and systematic.This paper makes a comprehensive study on the basic theory,constituent elements,prosecution and review,litigation procedure,judgment and follow-up matters disposal of participation in distribution objection litigation.It covers almost all the important issues of participating in the distribution objection lawsuit.It makes up for the defects of the existing research in a systematic and comprehensive way,,and can provides reference to help strengthen the litigation of participating in distribution objection for the academic and practical circles in China The research..Secondly,this paper are practice-oriented and problem-oriented,and discusses the judicial operation of participating in the distribution objection lawsuit,which can provide theoretical reference for how to correctly understand and apply the participation distribution system and how to improve the relevant system and mechanism in the next step.This paper holds the idea that "theoretical research should serve legal practice",focuses on the blind spots,controversial points and difficult problems in theoretical research and judicial practice,and strives to unify understanding and solve problems through systematic research.At the same time,when putting forward the relevant theoretical views and legislative suggestions,we should fully consider the social background,institutional environment and judicial environment of China to make sure that the suggestions are strongly feasible.Thirdly,some part of the research content of this paper are pioneering.The issues studied in this paper,such as the premise of prosecution,the system of filing and review,the claim of litigation,the collection of case acceptance fee,the simplification of litigation procedure,the definition and treatment of joint action form,and the filing of unjust enrichment litigation after the termination of distribution procedure have not been paid much attention by academic and practical circles.In addition,this paper puts forward innovative suggestions on the nature of the action,the constituent elements,and the distribution of the plaintiff 's interest in winning the lawsuit,which can provide new inspiration for us to unify our understanding and improve the system. |
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