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Study On The Supplementary Action Of Performance

Posted on:2016-08-26Degree:MasterType:Thesis
Country:ChinaCandidate:W F XuFull Text:PDF
GTID:2296330461959090Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Supplementary payment on Civil Law is an important way that the substantive law gives creditors to protect their full implementation of the right, which makes a creditor can request supplemental portion of the debt from the supplemental debtor when the debtor has no property or the property is insufficient to pay off the debt. According to the different reasons why the debtor should assume the responsibility, types of supplementary payments can be divided to the special legal status produced supplementary payment and non-special legal status generated supplementary payment. In theory, it lacks adequate discussions about how can we successfully make supplementary creditor take his supplementary responsibilities for clearing the debts through litigation. When strictly abiding by the provisions of substantive law, in order to obtain a complete debt settlement, creditor has to sue the principal debtor and the supplementary debtor in former and latter proceedings respectively, that would not only bring inconvenience to the creditors, but also result in great cost on judicial resources of the Court. Therefore, in order to reduce the time and steps during achieving the rights, the parties often put the principal debtor and the debtor as the co-defendants and claim rights in the same procedure. By theoretical analysis it can be found that the joint action makes subjective preliminary combination of litigation a theoretical premise for its merger proceedings, and depending on the different types of supplementary payments, the legal relation of object of action in the procedure shows the difference between singular and plural. Special legal status generated supplementary payments, as the sharing pattern of responsibility for principal debtor, share the same object of action with the main debt. By contrast, the other type of supplementary payments derive from the additional claims belonging to different object of action from the main debt, so that both of joint actions also show a difference between necessary joint action and ordinary joint action in the form of lawsuits. This subjective combination of litigation has become a basic way to deal with supplementary payment in the practical proceedings. Although it could bring a series of legal effects such as preventing conflict referee, guaranteeing once-for-all dispute resolution and saving litigation costs for the parties to ensure the plaintiff’s substance interests, but there also exist many problems due to this conventional litigation on practical operation, mainly concentrated in lack of necessary procedural safeguards provided to the supplementary debtor, which causes a scarcity of autonomy of procedure participation of supplementary debtor whose benefit of judicial rank is violated, in the meanwhile, the supplementary debtor would be vulnerable to property preservation measures and so on. To properly solve these shortcomings of supplementary payment on the proceeding, we should first distinguish special legal status generated supplementary payments and other type of supplementary payments to propose an appropriate constructive idea. On the one hand, for the former one, it is necessary to expand executive force of the judgment on the main debt that creditor acquires, so that it could directly affect supplementary debtor’s inherent property, and the creditor does not need to intentionally make a payment claim suit for supplementary debtor to obtain the basis of enforcement for him; on the other hand, for the repair method for the litigation of other type of supplementary payments, participation in proceedings of supplementary debtor should be emphasized. And in order to balance the real interests of creditor with that of the debtor, it also should be focused on rebuilding all aspects of joint action in this kind of case.
Keywords/Search Tags:Supplementary payments, special legal status generated supplementary payments, non-special legal status generated supplementary payments, subjective preliminary combination of litigation, necessary joint action, ordinary joint action
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