Research On Forcible Auction

Execution of creditor's rights concerning money can be divided into three phases. The first phase is to freeze the disposing right over all the property of the person against whom a judgment or order is being executed. It can also be called 'the phase of sealing up and distrainment '. The purpose of the first phase is to prevent the debtor from disposing his or her property. The second phase is to change the sealed up or distrained property into money through auction or selling off to discharge creditor's rights concerning money. It can also be called 'the phase of changing property into money'. The last phase is to deliver or distribute the money got from auction or selling off of the property to the creditor to satisfy creditor's rights. It can also be called'the phase of satisfying'. As one of the measures of changing property into money, forcible auction is the middle tache between sealing up , distrainment and distribution and plays a role of connecting the preceding and the following in the process of the entire procedure of execution. Compared with selling off ,which is also a measure of changing property into money, forcible auction has a public, fair and just form and its procedure of changing is very precise. Its unique function of price discovery and value maximum can not be compared with that of selling off. What is the legal effect of forcible auction? The answer lies in the different understandings of the nature of forcible auction. The dispute concerning the nature of forcible auction never stops. Those who support the private law theory recognize that auction is a business under private law; those who support the public law theory consider that auction is a kind of public law action, for it is a disposition made by national power; and those who support the eclecticism think that the nature of forcible auction should be between the above two. What is the legal effect of forcible auction in our country? And how to establish the procedure of execution? Those questions can only be answered on the predition that the nature of forcible auction is correctly identified. As a executor, the writer knows deeply that it is necessary to research the forcible auction system and its relative theories. This dissertation mainly researches the basic theory of forcible auction to further firm the public law theory of forcible auction of our country and establish reasonable and proper auction procedure, and brings forward some advises on perfecting the current forcible auction system. The first chapter of the dissertation, concerning the summarize of forcible auction, begins with the origin of forcible auction, reveals the character of forcible auction by comparing it with voluntary auction, and illustrates the basic principles of forcible execution law of China. The second chapter analyzes the three theories about forcible auction, and expounds on that basis the reasons why we should take public law theory in China. Also it analyzes the respective legal effect under the three different theories. The third chapter establishes our country's forcible auction procedure by considering foreign law systems on forcible auction. In the fourth chapter, the writer analyzes main problems and their reasons existing in China's forcible auction and puts forward advises to improve the system. Compared with other articles on forcible auction, this dissertation tends to be practical, and particularly puts forward the writer's ideas and resolving methods about some fi'equently seen problems in judicial practice with the purpose of mutual encouragement with those comrades who are concerned in China's execution work.