On Addition And Alteration Of The Person Subjected To Execution In China

As a special institution of the civil enforcement, China’s addition and alteration system of the person subjected to execution aim to improve the execution efficiency and ease the difficulty of execution based on the maintenance of the legitimate interests of the parties. However, with the development of economy, as a result of the lag of China’s civil procedure law, a large number of new cases are emerging by resulting in that many problems are difficult to solve in China’s addition and alteration system of the person subjected to execution.Taking appending one spouse party as the person subjected to execution between the couple for instance, in practice, the normal method is the execution institution should append one spouse party as the person subjected to execution if the debtor fails to perform or has no ability to perform the bared debt in the implementation process. Such an approach seems to achieve the interests of creditors; actually, it is to harm the procedure interests of the additional person subjected to execution. The reason is the subject range of the addition and alteration system of the person subjected to execution does not contain the case of appending one spouse party as the person subjected to execution and there is no specific procedural requirements of addition and alteration system of the person subjected to execution in present legislation in China’s present civil procedure legislation. In other words, the practice of the addition and alteration system of the person subjected to execution lack of legal basis for the support. Based on those reasons, the writer believes that the only way to solve this chaotic situation in judicial practice is to construct China’s applicable procedures based on clearing the main subject range of the addition and alteration system of the person subjected to execution.Not only is the urgent need of present legislation to build the applicable procedures of the addition and alteration system of the person subjected to execution, but also it has a strong legal basis. Firstly, in procedural law area, precisely because of the divisibility of the litigation rights and civil rights, the authority has the ability to append other subjects did not participate in the trial proceedings directly as the person subjected to execution in performance process, and the procedural law basis of the alteration system is the expansion of the scope of res judicata. Secondly, in substantive law area, because of the indivisibility of the joint and several liabilities, it could append the relevant responsible persons and ask them to perform the obligations. This reason is based on constant qualitative of the responsibility property. Specifically, responsibility property will not lose its right of the execution with the change of its main body, and the person could be changed as the person subjected to execution if the nature of the responsibility property does not changed regardless of who owns this responsibility property. Finally, the addition system and the alteration system of the person subjected to execution cannot be separated and must operate as a whole part. These two must have a same foundation in supporting the development of the whole system and this foundation is the purpose of civil enforcement. The implementation of civil enforcement purpose depends on the establishment of relevant institutions. Balancing fairness and efficiency, and improving litigation efficiency, as two main characters of addition and alteration system, make legal rights become real natural legal rights. In other words, those two maintain the stability of effective judgments, and ensure the value and function of the parties’legitimate rights and interests fit the requirements of civil enforcement purpose. It is precisely because those legal bases to allow the addition and alteration system of person subjected to execution exist as an exception in civil enforcement regime.Although the addition and alteration system of person subjected to execution established by the proper theoretical foundation, unfortunately, there are no perfect procedural provisions in China’s civil legislation. It leads to many problems in judicial practice like there did not improve the uniform application of the pattern for the start, review and relief of the specific procedures. According to the legal basis of the addition and alteration system, combining with practical operation of current situation and investigating the advanced legislative system of other countries, this article puts forward the overall vision to construct China’s specific procedures. It should improve the protection mechanism of the related procedures based on concept of procedural safeguards. It also should perfect the existing legislation by paying equal attention to both procedural justice and substantive justice, and taking comprehensive fully relief as a principle in order to meet the needs of present society. However, the long-term solution is to carry out compulsory enforcement act separately by drawing from civil law countries such as Japan, Taiwan and others. In addition, it should define the main subjects’scope of the addition and alteration system of person subjected to execution, so that afford legal ground to deal with new cases.