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Research On Several Legal Issues Of Civil Execution

Posted on:2015-11-17Degree:MasterType:Thesis
Country:ChinaCandidate:J F XiongFull Text:PDF
GTID:2296330467999372Subject:The civil procedure law
Abstract/Summary:PDF Full Text Request
Justice is the last line of social fairness, in the process, execution is the final and the fruit of the realization of law. Judicial fairness shall be achieved by execution to a great extent. Once the the lawful rights and interests of the party are violated, he may seek relief through legal channels, and the judicial apparatus orders the tortfeasor to make a compensation, unless the infringing party consciously to perform, otherwise the victim can only resort to the court for the judicial enforcement procedures. After the case comes into the executable program, the person subjected to execution still fails to perform the obligations,and the parties cannot reach reconciliation with the judge’s help, the court can only realize the request of the victim by compulsory execution measures.The process of execution is essentially a process of benefit to liquidate.Among the methods of liquidation, judicial auction is favored by judicial organs and the parties concerned and becomes the preferred way,for its open and transparent, procedural justice,and maximizing the value of the auction item,and for other merits.At present, howeverjudicial auction system in our country is far from perfect. Unknown status of the court in the process of judicial auction, simplex method of auction, high cost and long procedure, unreasonable processing program after the sale fell, these problems become chronic diseases and frequently-occurring diseases to institutions for execution.Another way of liquidation stipulated by law is judicial sale.Sale has the advantages of procedural flexibility and less cost, shall become an important method of liquidation of civil execution, however,the ambiguous statements in law, lack of openness, transparency, and rigid mechanism for price determination,and other defects,make it unable to give its role into full play.In the process of property liquidation, property under the control of the court may not be owned by the person subjected to execution,it may be based on a variety of reasons,for example,the property itself is owned by an outsider,or collateral rights were established on the property, or the court made an error during the process of determining the property for execution, such situation may also appears:the person subjected to execution had completely fulfilled his payment obligations while the court didn’t know,and will continue to freeze his property, or effective judgment had been revoked which execution was based on it. When this situation appears, how to relieve the interests of the parties related turns into a question that the legislative and judicial organs must consider.Although the civil procedure law stipulated system of outsider’s objection to execution and system of suit for an objection to execution,it had no provisions about system of suit for debtor’s objection to execution,besides,the existing system of suit for an objection to execution has defects as foliows,for example,it’s confused with the procedure for trial supervision and the set of the executive institution’s review before a suit for an objection to execution,which is not conducive to the coordination and protection of the interests of all parties.On the question of style arrangement, the author writes from a case executed by myself, by demonstrating links involved in process of the auction and sale,to reveal the defects of these two systems respectively, and in this foundation, proposes solution to these questions from the angle of judicial practice.In the question of relief,existing laws have paid attention to the protection of the benefit of the creditor and the outsider, although still has some deficiencies, compared with the protection of benefit of the debtor,it has been enough already.In fact, during the process of execution, debtor’s legitimate rights and interests also have the risk of decrease, the law has no relief measures regarding it yet.Therefore,the author also makes an basic analysis on the relief system of civil execution in this paper, the main content of which is the suit of the outsider’s objection to execution、the suit of debtor’s objection to execution、the suit of objection to the distribution of the debtor’s property,and proposes suggestions to improve it finally,based on years of practice of working on execution.
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