Research On The Problem Of The Right Of Priority Compensation In Executive Participation Distribution In Our Country

Priority of compensation is an important right granted to creditors,against the debtor is a matter of creditors to achieve its creditor's rights enjoyed by the way,share,and order.Even in many to allocate the limited property of the debtor,the creditor can enjoy the priority of compensation can determine the interests of creditors.In executing to participate in the distribution program,the court will develop a scheme on the property of the debtor in the first place.The court when making scheme,the main basis of different creditors is that the priority between creditor's rights of,what does not seek preferred payments.But in our country,the laws and regulations for the priority of compensation system of legislative deficiencies,that execution court and the parties have often felt annoyed.The court is the judicial organ,in accordance with law,exercise judicial power is the basic requirement of the job.Implementing participate in distribution program,the court at the time of setting scheme must have a reasonable basis,to ensure the rationality of the scheme.However,due to China's laws and regulations lack of complete and systematic provision about this system,lead to the court when making allocation without sufficient basis in accordance with the law.Thus,execution scheme worked out by a court unavoidably will not reasonable,between creditors and their share of order will be disrupted.On the one hand,it will cause the court work efficiency is low,on the other hand will cause the parties is not satisfied with the court's judicial authority.For creditors and debtors,to implement the scheme doesn't ignore decided by the court should have protected interests cannot be protected.And,as the legal staff,understanding of the law is vague,combined with China's laws and regulations in the priority of compensation system is not perfect,will cause the creditor and the debtor can not guarantee their rights according to law.Because of the lack of the legislation,in judicial practice,can appear a lot of unreasonable case processing results.In addition to the lack of legislation,the priority of compensation system in China's other problem is not explicitly to participate in the distribution of our country.Participate in the distribution principle as the principle of distribution process,to determine the extent of the obligee's right of order plays a decisive role.Even when performing court lacks legal basis,can also be in reference to allocation principles formulated on the basis of the scheme.But,no matter in theory or in the legislation in our country there is no set distribution principle.In thisArticle the author from the China construction bank co.,LTD.Kunming station-a small local branch implementation objection lawsuit case as an example to illustrate the implementation to participate in the distribution of the priority of compensation with respect to the present situation of inadequate legislation and the judicial confusion.And outside of the provisions of the priority of compensation with respect to the analysis of the at the same time,to explore ways to perfect the priority of compensation in China.This article is divided into introduction,body and conclusion three parts.The text is divided into four parts to discuss.Are the cause of action,legal analysis,case analysis,the revelation to the case.The first part briefly introduces the case analysis in this paper,namely the China construction bank co.,LTD.Kunming station-a small local branch implementation objection suit case,a brief analysis to the case after drying.And the main process of extracting the case in court controversy,as the article analysis the main breakthrough point of this case.The second part discusses the concept and legal basis of the priority of compensation,as well as our country about the priority of compensation in the execution allocations of legislation and judicial status,at the same time also introduced including Germany,Japan,France and other countries the legislation about the priority of compensation,and analyses about the execution in our country to participate in the distribution of the lack of the priority of compensation and chaos;The first part of the third part mainly analyzes the derived in the case of disputes,is the subordinate court ruled on the case columns are different.Through the analysis of the focus of dispute,and then match theory analysis part of the theory and case,materials for below case enlightenment practice.The author analyses and handling of the case.The fourth part discusses the analysis of the case,combined with the second part of the legal analysis,combine theory with practice,the understanding to the lack of legislation and practice in our country,on the basis of reference foreign law,put forward with the case analysis of enlightenment,including to perfect our country the priority of compensation scheme is proposed.