Research On Coercive Auction In Civil Enforcement Procedure

As a very important measure of realization of assets at market prices in civil enforcement procedure, coercive auction refers to the means by which the state executing organs implement auction through bidding publicly for the articles, goods or other specific property sealed up and transferring the property rights to the bidder who offers the highest price according to related stipulations and it's purpose is for debtors to pay off the debts. Coercive auction is firstly stipulated in Our Civil Procedure Law (1991) which clearly defines it's legal status in execution procedure.Based on the nature of coercive auction, this thesis regards that the state is the sole body of enforcement power and enforcement is a public law activity on the basis of the public power, which lead to the public law nature of coercive auction. To guarantee justice and efficiency in enforcement procedure, coercive auction should be regulated by relevant laws, administrative regulations and rules. In addition to the principles of openness, fairness and impartiality, the principles of entrusting auction to auctioneer, auctioning timely and priority should also be adhered to. In the course of coercive auction, assessment of the subject matter and selection of auctioneer are necessary and such procedures should also be involved as deciding on the reserve price, fixing upon the auction date and place, releasing the bulletin and so on.Regarding the legal effect of coercive auction, this thesis holds the point that the vendee gains the ownership of original acquisition through auction owing to it's public law nature. If the auction is successful, the property rights of real estates would be transferred to the vendee when the vendee receives the ruling, while the property rights of chattels would be transferred when the property is delivered to the vendee. The risk transfers when the subject matter is delivered. The vendee does not have the right to claim warranty of defects of the subject matter or security for defects of right, unless the client or auctioneer disguises the defects willfully. Stocks of limited company and real estates are special subject matters for coercive auction. To compel transfer of limited companys stocks by state force realistically meets the needs of our society and it is also supported by theory. If the subject matter is limited companys stocks, attention should be paid to protecting the preemption of the other shareholders. Besides, a few of questions need further research such as the paying of bidding deposit, bulletin time-limits, etc.Coercive auction in civil enforcement procedure requires rapidity, promptness and efficiency. Therefore, the author chooses coercive auction in civil enforcement procedure as the research topic and hopes to gain a more comprehensive and in-depth understanding of coercive auction with the help of available research fruits.