On The Protection Of Priority In The Implementation Of The Program

Civil forcible execution is an activity that compels a debtor who has the existed obligation to fulfill the duty to realize creditor's civil rights on the basis of the legal effective documents of state judicial organs through the country force wielding under conditions prescribed by the legal procedures.The priority establishment,aims at abolishing equal principle of creditor's rights,gives some priority in the privilege the other creditor to the peculiar creditor during debtor's property is not worth paying off.Priority has embodied country's legislation policy,has been reflecting the idea that the law runs after to equal,impartial and just indefatigability of essence.In actual judicial practice,require that priority suitable for use stipulates,main part concentrates the implementation stage on civil case. This is two characteristics when the priority has been applying to:First much,the creditor must contain priority creditor's rights and at the same time enjoy creditor's rights,and many creditor's rights to the same debtor.It is the priority when creditor's rights is relatively other given priority to being repaid only in this way,there is no priority if there only exist one preferential creditor's rights.Secondly,debtor's property can not satisfy creditor's many requests when the creditor requires that the debtor clears off debts much at the same time,.These two characteristics are obviously shown in implementation stage,it is very important that discuss priority of implementation stage suitable in civil case.There are several creditors who has being unlike a character when the executive organ handles debtor property when in carrying out law case,the creditor in case and not in case,the general creditor and peculiar creditor, especially the legal priority people mainly,results in the right conflicting much.Specifically for the right conflicting,the different obligee,the executive organ how to carries out a summary on to carrying out the complicated condition appearing in law case,how to ensures the right conflicting managing to come true orderly according to law judging by law, appropriate various treatment debt.The author drafts category and character being similar to law case to priority and their regulation about priority carrying out the law studying,summing up an entity in current situation in procedure of execution;analyze the cause and countermeasure of priority protect in procedure of execution,study the dispute focal point problem in a deep going way;build up the concept of execution priority on the basis,set forth the connotation of execution priority,and then the type analysis being in progress.By the many-sided,the multiple echelons analysis and discuss of execution priority,look forward to make valuable headway on the theory of priority protecting in the people's court forcible execution case.This article is mainly divided four parts,respectively are:1.The definition and type of priority.This part analyses each different priority concept,and carries on the induction to the middle dispute focal point question.Thought the main focal point is:The priority is one independent right or the existing creditor rights' special potency or the condition;the priority is one procedural right or the reality right;the priority is the real rights or the creditor's rights;the priority is legal or agreement.In this foundation,establishes the author's definition of priority in this paper.The priority is a civil right that some obligee's civil right preferred implements when some different civil rights have the conflict according to the legal rule or the litigant.And union the priority definition in this article,according to the stipulation of the existing national law,classified three kinds of priority as the right of preoccupancy,the right of preferential payment,the right of preemption and so on.2.The question and reason which exists the priority execution.This part from the views of judicial practice,according to the corresponding priority category,sets forth some kinds of questions in priority process existence at present executive procedure,and analyses emphatically the reason of the questions.3.The ideas of consummates our country priority protection system.This part analyses and discusses some priority in our country judicature executive procedure involved the most quantity,the most disputes according to the fore cited priority's type,and gives the author's ideas of consummating our country priority protection system.The author mainly divides into these situations four kinds:the protection of the right of preoccupancy(mainly including the protection of the cautio judicatum solvi,the taxes,the staff wages,the living expenses of executed person and adopter),the protection of the priority of architectural engineering funds,the protection of the right of preferential payment,the protection of the right of preemption.Here need explanation that is thought the priority of architectural engineering funds is one kind of priority,the problem appearing is especially complicated and numerous,this article takes it as a separate unit from the common right of preoccupancy and has some specially analyze.4.The priority cis-position principle and the construction of protection procedure.In order to solve the order problem of the priority,the author according to the execution practice,referring to the related legal rule,and according to the priority category,has induced certain sorting principle about the priority,they respectively are:the cis-position principle of the right of preoccupancy,the cis-position principle of the right of preferential payment,the cis-position principle between the right of preoccupancy and the right of preferential payment.In the existing laws and regulations,there are not many items about the priority protection in executive procedure.Even if there are some fragmentary stipulations,but how to concrete protect,still has not clear, detailed,patternized stipulation.The author proposes some exploratory design about the main routine of the priority protection in the executive procedure.