Shishu In The Implementation Of The Program's Priority To Protect

As a legal system, right of priority originated in Roman law. The civil law in many jurisdictions has set out special regulations about right of priority. However, scholars differ in their interpretations of right of priority. Guided by the principle of justice and fairness, the article tries to explor the fundamental theory of right of priority. The relevant rules of right priority in substantive law have been summarized in this article and problems and causes concerning the protection of right of priority in procedure of execution have been examined. The author comes up with the conclusion that right of priority has greater value than the ordinary right and entails better legal protection. The article explores many issues concerning the protection of right of priority in procedure of execution, which is helpful in establishing and strengthening right of priority protection system in China.With respect to right of priority protection, the article argues that whether a right falls into the category of right of priority can be determined by logical reasoning and value judgment. If logical reasoning and value judgment differ in their conclusion, then value judgment prevails. Right of priority is a matter of value judgment or perspective in its nature. To perfect or reconstruct the legal system concerning the protection of the third party in procedure of execution is question open to discussion. Therefore, we can hardly reach the same conclusion. Nevertheless, the article believes that incorporation of rules of right of priority protection into China's procedure of execution is not only necessary but also possible.The article analyzes the protection of right of priority in procedure of execution from the following five perspectives:The first part of this article deals with the concept of right of priority in civil law. Given the fact that there is no unified definition of right of priority in China, the author provides his unique idea of the concept of right of priority through summarizing the leading views form authorities.The second part deals with the current situation and problems concerning right of priority protection in procedure of execution. Five issues have been identified in the article. The current situation of right of priority protection in procedure of execution has been generally discussed and problems have been analyzed within the context of concrete cases.The third part deals with right of priority protection in procedure of execution. First, the article discusses such preemptive rights as preferential payment of building contract, court fee of preservation in litigation and judgment enforcement, commission charged by appraisal or auction company, basic living expenses for judgment payer and his or her dependents, remuneration for assignment of right to the use of land and tax payment. Second, the article discusses the protection of real rights for securities. Third, the article discusses the protection of option to purchase. Last, the article discusses the sequence of right of priority protection.The fourth part deals with the experiences of right of priority protection in procedure of execution in civil law countries and areas. The article investigates the legal system of right of priority protection in civil law countries and its relevance to China. Emphasis has been given to the introduction of relevant legislations in Germany, Switzerland, Japan and Taiwan.The fifth part deals with the establishment of procedural protection of right of priority in procedure of execution. First, the article analyzes several important issues concerning procedural protection of right of priority from four perspectives. Second, in-depth discussion has been given to the procedure of application and opposition, the procedure of participation and distribution, the procedure of right of priority protection, the procedure of protection of real rights for securities, and the procedure of protection of right of priority to seagoing ships.