On Several Issues About The Execution Of Auction By Civil Law

As an important measure of the execution by civil law, the execution of auction aims at powers conditioning each other, right relieve, benefit balance and shows the independent value of procedure such as justice, benefit, order and liberty. The character of the execution of auction is the decisive factor to decide the value of the system and purpose realization. With the development of civil litigious rights and res judicata, the trend of the execution of auction appears and the system of the execution of auction based on the public law gets acceptance from the world. The appearance and development of the system in China can not go without the public law. However, on the basis of admitting that execution of auction is becoming the public law, more theory and practice studies on the reform of the system of the execution of auction goes on. In order to realize civil judge result smoothly, the execution of auction as the public law in China should be regarded as the theory foundation, and the operation procedure of it must be standardized, and the supervision and relieving system must be improved by the means of powers conditioning each other and right relieve, and the interest of the main bodies should be balanced.There are four chapters except the preface and conclusion:Chapter one: the foundation of the execution of auction by civil law. First, it gives its definition and the comparison between it and other types of auctions. Second, it shows its own comments on the different characters of auctions as the foundation of the execution of auction. Third, it puts forward that the system based on the public laws ought to be set up and improved and points out five principles which must be applied to the execution of auction.Chapter two: first, it analyzes the present laws and the theoretical basis of the basic principles of"to the civil rules about the auction and selling off property by people's court"stipulated by the Supreme People's Court and its reason of constructive amendments. Second, considering the legislation in foreign countries and the practices of the execution of auction, it puts forward to some suggestions, such as, the appraising cost ought to be determined by the auction price; it makes clear the specific procedures in entrusting appraising and reserving price; auction can be carried out after the public exigency when the main person and other interested persons are absent; the traditional execution of auction should be encouraged to be carried out by an electric auction; forcible management system ought to be set up after selling the real property or the failure of the auction and so on.Chapter Three, first, it analyzes the legal effects in the execution of auction on a basis of public law. Then, it puts forward to the following suggestions: to get the real property should not lie on the register and certificate of the property right; the time that the person who get the ownership ought to the time of handing out; to distinguish between the shifts of the risk metastasis by auction and the time and place of getting the ownership; the execution of auction to property and the person who get ownership; the person who get ownership should get the right of warranty against right defect after the auction; negotiating about canceling all burden on the various real property from the interested person.Chapter Four, first, it gives differentiation between the supervision on the execution and the relieve system. And it points out the supervision system on the execution of auction and the relieve system on the basis of the decentralization. Then, on one hand, to supervision on the execution of auction, the court should take the super and each body's supervision as the inner supervision system; the procuratorate should have the authority of the supervision on the execution of auction; the court and the interested persons should reinforce the supervision to appraising and the organization of auction. On the other hand, to relieve on the execution of auction, carrying out decentralization ought to be taken as a basis; to set up the independent implementation judging organization; to take suit of dissent in the procedures and suit of dissent in the bodies as the basic relieve system of the execution of auction.