On The Enforcement System Of The Creditor’s Rights Of The Executed Person

The enforcement system of the creditor’s right of the executed person,which is not identical to the enforcement system of credit-in-due or the enforcement system of creditor’s subrogation,refers to a particular enforcement system,under which the claimant who applies to court for the implementation and settlement of money obligatory right has a claim on all of the creditor’s rights belonging to the claimee(except his or her other exclusive creditor’s rights),when certain conditions are met,the executive court can rule that all of the creditor’s rights belonging to the claimee must be distrained and then be sold at the current price to make compensation to claimant.This system,in China,has been established for a long time but has not been in full application due to the inadequacy of legislation and to the imperfection of itself.Therefore,on the heels of the juridical interpretation of civil procedural law being issued for enforcement,we need to re-contemplate this system theoretically to detect the inadequacy of our legislation. By taking both the conditions of China and the juridical reference of other countries and regions into account,I’ll make some advice on how to further improve this system in this thesis. Except the introduction,This thesis is composed of four sections.Section 1:system overview.It is untenable that subrogation right is the juristical basis of the Enforcement System of the Creditor’s Rights of the Executed Person,for it is not identical to the enforcement system of credit-in-due or the enforcement system of creditor’s subrogation.Besides,when any third debitor is involved in the procedure of theimplementation of the creditor’s right of the claimee, that the third party is enforced depends on an enforcement basis whether the third debitor can file a legal objection to it or not.Section 2:comparative study.There are two major advantages of the counterpartjudiciary system running in Germany,Japan,South Korea and Taiwan of China District.The first one is that the enforcement of creditor’s right of the claimee,as for the executive position,is equal to the enforcement of his or her other property,what’smore,the enforcement is not only limited to credit-in-due,and the right of delivery claim is also clearly stipulated.The other one is about executiveprocedure,in which issues like the phases of enforcement,the procedure and delivery of the verdict of freezing the creditor’s rights of executed person,and the rights and the right-balance of the involved three parties are precisely stated.Section 3:advantage & disadvantages analysis.There are both advantages and disadvantage lying in the the enforcement system of the creditor’s rights of the executed person.The advantageous aspect is that implementation notice is cut off from the verdict of freezing the creditor’s rights of executed person notice,avoiding the overlapping time among three thing including the delivery of implementation notice,the detention of creditor’s rights and selling the involved creditor’s rights at current rate.Inaddition,the main claiming subject transfers from dual-track system to single-track system.The disadvantageous aspects are as follows:the executed person doesn’t have the right to pay off his creditor’s right in due, resulting in some high requirement for the application of this system;limited creditor’s right being fulfilled;ambiguous specification on the delivery of the verdict;inadequate enforcement measures about the right of delivery claim hold by the claimee;ambiguous definition of the base concerning the third party’s implementation.Section 4:proposal improvement.First,facilitate the permission that the executed person needs to pay off his or her creditor’s right in due;Second,formulate some specific procedures in delivering the verdict;Third,enlarge the range of creditor’s right involved and extend the way creditor’s right is sold,and clearly lay out the measures about the right of movable propertydelivery claim,and about the right of real estate transfer claim;Fourth,define the reason why the third party is executed according to whether she or he has objections to it or not; fifth,improve the judicial procedure during which the third party presents argument,and protect his or her related argumental rights,which should not be obliterated by the ‘ judgementcreditor’.Issuing the verdict of freezing the creditor’s right and the verdict of selling the creditor’s right respectively to protect the third party’s argumental rights during whole procedure;Sixth,vest the claimant with juristical ways to counterbalance the third party’s argumental rights.