A Study On The Perfection Of Execution Participation In The Distribution System

The execution of system of participation in distribution means that after executionprocedure starts, if the properties of person subject to execution are not enough to liquidateentire liabilities, other creditors that failed to participate in execution procedure but haveobtained execution basis or with preferential right can apply to court before the finishing ofproperty execution and participate in execution procedure that has started, so as to letcreditor’s right be compensated fairly. Such system has been regulated in laws of lots ofcountries. Although China’s Civil Procedural Law has been amended for multiple times, itfailed to expressly stipulate such system. In judicial practice, the main basis of such system ismultiple clauses of contents of three judicial interpretations of Supreme People’s Court,existing lots of problems.By conducting survey and research on current execution of system of participation indistribution in China and the analysis on characteristics of system operation in legal practice,this paper proposed the conception of perfecting such system in China. It is divided into fourparts:The first part is the outline on execution of system of participation in distribution. Itconducted discussion on such system from aspects such as concept, characteristics, basic value,applicable rule, applicable conditions, and distribution extent of execution of system ofparticipation in distribution, as well as its relations with bankruptcy system and executionconcurrence, aiming at conducting overall and detailed mastering on such system.The second part is the basic characteristics of operation of execution of system of participation in distribution in legal practice. By introducing and analyzing the relevantconditions of execution of system of participation in distribution in two levels of people’scourt in Suqian City, Jiangsu Province, it outlined the basic characteristics of current executionof system of participation in distribution, such as on the rise of applicable proportion ofexecution of system of participation in distribution, and more number of people involved incase; entity of person subject to execution is concentrated, and less of enterprise legal personapplicable to execution of participation in distribution; false lawsuit measures diversified, andreview difficulty becomes increasingly big; the proportion of realizing creditor’s right bycreditors participating in distribution case is low; the number of participating in cases withobjection increased year by year, and the handling effect is not good, so as to do wellpreparation and lay foundation for following discussions.The third part is the analysis on problems and causes of execution of system ofparticipation in distribution in China. By illustrating law with cases, it proposed severalproblems in such system: application entity scope too narrow, and setting of distribution courtunreasonable, procedure not perfect, starting essentials in execution of system of participationin distribution not explicit, compensation order in execution of participation in distributionprocedure unreasonable, risk prevention mechanism in execution of system of participation indistribution unsound, rescue scheme in execution of system of participation in distributionimperfect, and lacking of effective linking between execution of system of participation indistribution and relevant systems. The causes include four aspects: bad judicial environment,imperfect legislation, insufficient judicial capability, and unsound execution system andmechanism.The fourth part proposed the conception of perfecting the execution of system ofparticipation in distribution system in China. This chapter proposed the reform thought onsuch system in China from several aspects: formulating unified compulsory execution law,standardizing execution procedure; establishing the starting mechanism of inquisitorial systemof bankruptcy procedure, linking the execution of participation in distribution procedure andbankruptcy procedure; confirming limited distribution rule, and streamlining creditor’s rightcompensation order; appropriately expanding the entity in applying for execution of system ofparticipation in distribution system; confirming the condition and time nodes of execution of system of participation in distribution system; exploring on the establishment of court noticebulletin procedure; perfecting objection system of execution of participation in distributionscheme, so as to reach the reform target of coincidence between fairness and efficiency.