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Studies On The Property Research In The Executing Procedure

Posted on:2009-02-28Degree:MasterType:Thesis
Country:ChinaCandidate:J YangFull Text:PDF
GTID:2166360245964126Subject:Litigation
Abstract/Summary:PDF Full Text Request
In recent years, in order to overcome difficulties in executing, theorists and practical realm in our country carry out a reform upsurge in the field of civil-executing. For the issue of researching the subjects'property, some scholars advocate that the principles and systems in the trial procedure such as the adversarial system and the burden of proof should be applied to civil-executing, with the participation of the parties to resolve the problem of "hard to find the subject's property." Although this reform advocates can partly meet some practical needs of the difficulty in civil-executing, there are many problems in theory. The power of executing investigation which is essentially administrative power, have the characteristics of compulsory, initiative and unidirectivity , the adversarial system counters to the fundamental attributes of the power of executing investigation. The function and value of the burden of proof system also decide that the burden of proof system can not exist in the execution process. Therefore, this simple transplant of experience in the trial procedure is difficult to justify in theory, and in practice, easily leads to the burden for the creditor to research the property of the subject. The correct theory is: the execution authority should actively investigate the property of the subject, which is decided from administrative power of the power of execution investigation; and the subject should commit the responsibility of self-declaration of property; the creditor enjoys the right to help execution authority to investigate the property. Therefore, a legal system of researching the subject's property should be set up that the active investigation for execution authority and the responsibility of self-declaration for the subject are a major, and the researching of creditor is a minor.
Keywords/Search Tags:the research of property, the burden of proof, the power of executing investigation, abnormal change, the declaration of property
PDF Full Text Request
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