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The Theory Of The Execution Creditor's Alteration And Litigation Relief

Posted on:2017-10-16Degree:MasterType:Thesis
Country:ChinaCandidate:X T LiFull Text:PDF
GTID:2346330488971121Subject:Civil justice
Abstract/Summary:PDF Full Text Request
Execution creditor is usually the one based on specified client. Due to the change of the specific situation,Executive body on the basis of records may be inconsistent with the actual subject of rights, such as assignment of creditor's rights. In this case, there comes a problem that who is the proper subject of the enforcement procedure. Under the circumstance that when implementation of creditor's rights transfer, whether the assignees belong to the proper subject of the enforcement procedure, is related to if it can apply to the court for enforcement.Because the lacking of the theoretical research, laws and regulations on the execution creditor in our country, it fails to guide judicial practice in practice. As a result of this situation, it often appears that it is difficult for the assignee apply for the subject of the enforcement procedure change. At the same time, because of the execution entity relief procedure is not perfect, it lacks of protection of substantial help on the rights of the parties. After applications are rejected, assignee's right is hard to relief. These issues deepen the dilemma of execution fatherly in our country.Under the background of judicial reformation and striving to solve the difficult of execution, researches on the changing subject of execution procedure problem, not only help to clarify the theoretical confusion, but also help to satisfy the demands of reality. Therefore, in order to be beneficial for improving the execution procedures and guaranteeing the rights and interests of the parties, it is necessary to delve into the issues of changing subject of execution procedure.This article apart from the preface and epilogue, main contents can be divided into four parts, as follows:Chapter one: Basic situation of the case. This part briefly introduces the main case in this paper, and figures out the cause of action. Then, drawing the focus of controversy by summarizing the problems that exist in the case. And around the controversial focus, describing current divergences of views.Chapter two: Analysis of the relevant issues about legal principle. This section mainly analyzes the changing subject of the execution procedure in the perspective of jurisprudence. First, the basis of execution is the determination of civil judgment, and the criterion of the proper subject of the execution procedure is the subjective scope of execution. And discussing the subjective scope of execution from the external signs and intrinsic standards, confirming expansion of the subjective scope of execution. Second, analyzing the nature and consequences of the judgment creditor's rights transfer. From the angle of Res-judicata to analysis the legal nature of judgment creditor's rights, and then prove the legitimacy of the judgment creditor's rights transfer. Assignee obtain the entity legal interests and procedure legal interests by lawfully assign the judgment creditor's right.Chapter three: Analysis and conclusion of this case. The applicant's changing requests are not supported under current law. Nevertheless, according to the perspective of the procedural legal, their requests should be allowed. Meanwhile, under existing rules, when the request of applicant in the case is rejected, applicants only have to bring proceedings to the court. But according to the traditional execution remedies system, applicants can achieve the right to relief by bring the litigation of execution permission to the court.Chapter four: Enlightenment of this case's research. Our country should establish the litigation of execution permission and the litigation of execution objection of the execution debtor. The procedure of execution permission includes necessity, comparison of foreign law, preliminary conception and essential program elements this four aspects. The litigation of execution objection of the execution debtor is constructed with comparative extraterritorial law, logical link of the litigation of execution permission, and preliminary conception and basic elements of the program.
Keywords/Search Tags:the subjective scope of execution, Res-judicata, Executive Force, the Litigation of Permission of Execution, the Litigation of Execution objection of the execution debtor
PDF Full Text Request
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