On The Judgment Effect Of The Divisibility Of The Share

In tradition the division of common property is action of formation, that accuser prevail the force of formation without the force of execution. Rather than the constant this thesis state the division is characterized both executable and legitimate, because the dividing essentially has both constitutive judgment and prestation judgment characters. Therefore to achieve actual division, the executive force is demanded for the division judgment besides the formation force. Besides preface and epilogue, the thesis has 4 sections.The first section is about the characters of the common property division. It is demonstrated that the division judgment is considered both the nature of the division and litigation quality of that. About the division nature, there is an argument whether it is right identification or right transfer. However according to the “one property on right” civil law concept, it is more suitable for right transfer. As the litigation quality, firstly the right to litigate the division is the right of formation, besides because the litigation in fact has non-litigation characters and the judgment would change the law relation, the division litigation is actually action of formation. Therefore when both the division nature and litigation quality are considered, the litigation is characterized both formation judgment and prestation judgment.The second section discusses the common property division fromation force. When the division is adjudicated, the legal relation between the owners would certainly change. Between the owners, the obligation relation is effected because the division ways would be decided by the judgment and the owners would carry the division duty after that. About the real rights, every owner would achieve only a part of ownership, every owner actually is responsible of other’s guarantee duty of the divided property. Regarding the third parties, the division judgment entitled ordinary third parties. The individual entitled the collateral real rights would constantly has the same right range after the division. According to the right transfer quality, the division judgment is un-retrospective, that the owner would actually divide the ownership after the judgment.The third section discusses the common property division executive force. Because the division characterized both formation judgment and prestation judgment the executive force is theoretically structured through the relation with the Civil Law, improving litigation efficiency, the execution actions and legitimacy. The execution and res judicata do not necessarily share the same objective scope, for they are directed by different concepts. To achieve the protection of adjudge force, all the owner can request to claim their shares merged. As for executing the judgment, all owners have to apply enforcement.The forth section is to ensure the legitimacy and the formation force of the division judgment. According to non-litigation character of the division litigation, it is extremely critical for the court to public the moral conviction of the division methods especially the specific division to ensure the legitimacy of the division judgment effectiveness. Afterwards the stability performance is disturbed by how to extend the original partly collateral real rights. In this occasion the right owner could attend the litigation to specify the collateral real right to the specific individual, instead of retrospecting the multiple ownership to the original owners. In that way the judgment formation force would be stabilized.