Font Size: a A A

The Research On The Conflict Between Preservative Execution And Final Execution

Posted on:2018-10-08Degree:MasterType:Thesis
Country:ChinaCandidate:M YangFull Text:PDF
GTID:2346330515990045Subject:The civil procedure law
Abstract/Summary:PDF Full Text Request
In the proceeding of civil enforcement,the conflict between preservative execution and final execution happens very often,but our lack of systematic legal provisions on this issue at present,which is not conducive to solve the specific problems in practice.In this paper,the author leads to the concept of the conflict between preservative execution and final execution through a real case and then analysis in-depth the constituent elements and specific types,reference to the relevant principles of other countries or regions and evaluate the relevant doctrine of the question.Finally,the author put forward her own views on the issue.This paper consists of three parts:Part one,the author proposes the research subject through a real case---the conflict between preservative execution and final execution.It is necessary to provide a path for the problem,because it exists in practice but the legislation has taken the ignored attitude.Part two,the author elaborates the connotation of the conflict between security enforcement and final execution.Through the introduction of preservative execution and final execution and conflict,defines the concept of the conflict of the preservative execution and the final execution,it is a phenomenon that some creditors apply for preservative execution to restrict others to dispose of debtor's property,at the same time,other creditors apply for final execution to realize his rights,but the debtor's property can not meet the request of all creditors.And then clarifies the constituent elements and specific types,and the relationship between the conflict of the preservative execution and the final execution and civil concurrent execution.Part three,the author focuses on the solution to the conflict between preservative execution and final execution.Firstly,this paper discusses the principle of solving the problems of domestic and foreign judicial practice,including the first execution priority principle,equal distribution principle and eclectic principle;secondly,this paper introduces three kinds of theories of our country's scholars to solve the problem,including final execution superiority theory,superior preservative execution theory and eclectic theory,and points out the shortcomings of the three theories;thirdly,after considering the value of civil enforcement and the relationship between civil enforcement and bankruptcy,the author put forward own views on the issue that is the first execution priority principle as the basic principle,the equal distribution principle and eclectic principle is the necessary complement and adopting the reasonable kernel of eclectic theory;finally,point out the defects that China's existing regulations for the solution to the problem and put forward suggestions for improvement,but also provide some own ideas about the rules of procedure which are jurisdiction,escrow,coordination and relief.
Keywords/Search Tags:Concurrent execution, First execution priority principle, Equal distribution principle, Procedural rules
PDF Full Text Request
Related items