The Research Of Creditor’s Claims Preservation System For The Executed In Civil Lawsuit

The procedure of property preservation is an important means of relief for civilright, creditors can successfully guarantee the realization of creditor’s rights with thisprocedure. However, the achievement of property preservation effect subjected to theproperty of the debtors. Only successfully preserve debtor’s sufficient amount ofproperty, it can smoothly realize creditor’s rights during the phase of implementation.So we included the claim which the executed should enjoyed in the scope of thepreservation of property is undoubtedly an effective measure which conducive to therealization of creditor’s right and simplify the enforcement procedure. It is also a strongsolution to ease the judicial practice of “difficult execution” in the present stage of ourcountry. In view of China’s code of civil law go deep about theoretical study of thelitigation preservation and judicial practice, this article used the preservation procedureof claims for the executed as the topic, trying to thoroughly research and investigate thisinstitution.The first part of this article mainly discusses the basic theory of the creditor’spreservation system of the executed, including the executed creditor’s preservationsystem’s concept, characteristic and significance, the executed creditor’s preservationsystem’s implementation condition and the theoretical foundations.The second part of the article mainly analyses the provision of the executedcreditor’s preservation system in some foreign countries and Taiwan area. The mainanalysis points are these countries and regions’ legislation characteristics and innovationin terms of this system, and through their legislative situations summary the legislationof Chinese civil procedure law for reference. This part mainly have investigatedGermany, France,Britain, the United States and China’s Taiwan region of the personsubjected to execution of creditor protection system.The third part and the fourth part is the subject part of this article. The third partmainly analyzed and studied the five disputed problems in the implementation of theexecuted creditor’s preservation system. These five questions respectively are whetherthe litigation preservation of claims has priority of repayment in the phase of execution,whether can preserve the third part guarantor’s property, the duration problem about thepreservation expiring creditor’s right, the possibility of preservation about installmentsdue claims and the litigation preservation of expiring creditor’s right and conflict problems in the execution of creditor’s right. The author also gives his own view on thebasis of analyze the five problems.The fourth part of this article mainly has analyzed our country present stage’slegislation flaw for the executed creditor’s claims preservation system. It has focused onthe light penalty problem of the third party who failing to fulfill the obligation, thepremise for creditor protection provision, and the undue claims could not be preservedand not giving third party full right to objection. The author had given the four defects apreliminary conception of improvement and proposed some improving suggestions inorder to consummate our country’s creditor’s preservation system for the executed.