Research On The Validity And Remedy Of Civil Execution Auction With Blemish

Civil execution auction with blemish exists widely in our country’s current judicialpractice, however, our legislation on this kind of blemishing auction is lacking, and it definesthe validity of blemishing auction vaguely. By the way, our legislation also defines theapplications of relief system for this kind of blemishing auction in a narrow way, at the sametime, at the same time, they did not make any law related to the procedures. For instance, theSupreme People’s Court has set that the court has the right to supervise the process of civilexecution auction in The Provisions about the Auction and Realization of Property in People’sCourt’s Civil Execution, including the assessment of the auction, the determination of thereserved price, etc. But there are no provisions on the relief system in the case of illegalexecution and breach of contract, and yet clarify and unity of the means of relief are veryimportant and urgent in the current executive practice. Because of the complexity of legalnexus of civil execution auction, rights could not only face erosion from authority, may alsobe subjected to equal civil subjects’ malicious damage, and all of this can be seen from illegalexecution auction and improper execution auction. Therefore, it’s urgent and necessary torealize the remedy of rights in the procedures and the later period. In practice, informal lettersand appeals are commonly adopted. Such lack of legislation will cause injustice to the partiesand interested parties. However, the procedure is not perfect. In order to assert their legitimaterights and interests and avoid the compromise of rights, it is necessary to fill in relevantlegislation on the civil execution auction with blemish. This paper sets the definition of civilexecution auction with blemish and the specific characters as entry point. Then it goes on withdiscussions about the validity and remedy of blemishing auction based on our country’scurrent legislature structure and national to international research status in blemishing auction.Finally, I have put forward some suggestions to perfect the relief system for this blemishingauction.Except the introduction and conclusion part, this paper is constructed by five parts:Chapter one talks about the basic definitions of civil execution auction with blemish.According to my comprehensive analysis on some national definitions and the comparisonsbetween them, I will generally define civil execution auction with blemish as the civilexecution auction which is contrary to the elements, civil procedure and method of the law, or the civil execution auction which is although in accordance with the law, but the results of theauction do not meet the rights of creditors in the substantive law. And this auction is calledcivil execution auction with blemish. This chapter makes the basic way to view this wholediscussion.Chapter two is about defining the validity of civil execution auction. In essence, auctionbelongs to public law’s legal behavior. Its validity is actually a kind of protection andconstraint of the law, but it is different from the behavior in private law on the legal protectionor constraint. Based on the standard of civil execution behavior and parties behavior, civilexecution auction with blemish can be divided into illegal execution auction and improperexecution auction. The illegal execution auction is a negative evaluation in auction results forthe implementation of the auction process is illegal, but not all illegal auction will lead toinvalid auction effect, and only a serious violation of the law in the process, and must be putforward within the statutory period, it may be recognized as invalid. Regarding the improperexecution auction behavior, it does not have the foundation of substantive right, but theauction is valid. By the way, the obligee may get relief through legal procedures.Chapter three, it is a comprehensive study of national and international legislation of therelief system of civil execution law. Focused on the difference between civil law and commonlaw system, this paper wants to bring out a more integrated legal process to remedy suchauction with blemish by combining local legal culture with the reasonable legal system fromforeign countries.Chapter four puts emphasis on our country’s current legislations and judicial practice ofcivil execution auction with blemish. This part mainly discusses the current condition of ourlegislature system and the practical operation of this law. Then I will put my eyes focused onthe problems brought by current imperfect remedy legislatures. In order to solve suchproblems, I will cite national to international theory regarding to the relief system law andpoint out the flaws in our country’s current law. At last, I will make suggestions to bring outbetter relief systems which are related to legitimacy and necessity of proper legislations.Chapter five, I will bring out the corresponding procedural system based on thediscussions stated above in former chapters from two aspects. Expectations indicated in thischapter would be my slight contributions to relief system legislations in our country.