Procedure Choice After The Death Of The Debtor Upon The Effectuation Of Judgment

Generally speaking, the creditor takes the debtor determined by the judgment as therelative party, applies for execution upon the effectuation of the judgment and the people’scourt takes the debtor as the executed subject to take execution measures, which is the basicprovision of the law. However, where the debtor dies upon the effectuation of the judgment,his civil litigation subject qualification also disappears therewith. As for this, it is obvious thatthe issues such as whether the execution procedure can be initiated, how to operate afterinitiation and how to solve the problems arising in the operation shall be reflected seriouslyand such issues shall be handled according to different situations. This thesis begins from twocases with approximate execution in which the debtor dies upon the effectuation of thejudgment and the current procedural law and substantive law, takes the essentialcharacteristics of the two functions of trial and execution of the people’s court in the civillitigation as the guide, makes comprehensive analysis on the issue in combination with thetreatment and disputes in the current practice and proposes the author’s opinions. This thesisconsists of introduction, main body and conclusion. The main body is the focus and consistsof five parts. Part One introduces the execution case and enumerates the relevant legalprovisions and judicial interpretations on execution, offering materials and subject for thesake of the following introduction to the disputes and analyses. Part Two summarizes the twodifferent handling opinions on the two cases and their respective reasons and practices. PartThree analyzes the problems in the aforesaid two handling opinions in Part Two and proposesthe certain defects and risks in the two handling opinions. Part Four briefly introduces andcompares the provisions in the foreign and domestic relevant substantive law and procedurallaws and the background for legislation. Part Five, based on the aforesaid four parts, takes thetwo cases involved in this thesis as the example, proposes the opinions on procedure choicewhere the debtor dies upon the effectuation of the judgment and makes analysis on procedureoperation according to different situations, hoping to broaden the perspectives and play therole of leading and guidance. The whole thesis is concerned takes the comparative methodssuch as case comparison, controversial opinion comparison and foreign and domestic laws asthe major elaborations methods through which to reflect the difficulty, important, rationality,advantages and disadvantages of the two execution cases in procedure choice. This thesis endeavors to take the detachment between trial and execution as the basis, enhances theprotection for litigation right of the successor of the creditor when emphasizing the protectionfor the creditors’ right, and considers the restriction on the power of the execution staff andlessens the workload, responsibility and obligation, hoping to remind the common practices inour execution practice to a certain extent and play the role of change and promotion.