On The Conflict And Harmony Between The First Seal Right And The Enforcement Of The Priority Of Creditor's Rights

Since 1998,“the Supreme People's Court on the execution of the provisions of the people's Court(Trial)” was promulgated,the first seal right has been guiding the execution of civil work in China for nearly twenty years.During this period,the right of first seal has achieved good practical results.However,with the development of social economy,the types of cases become more and more complicated and diversified.Among them,the conflict with the priority's execution is especially remarkable.In recent years,the execution of priority cases,especially the cases of security interest,are increasing day by day.This conflict is caused by the delay in the execution of the priority,and hinder the realization of the priority,so that leading to some of the substantive rights which should be given priority loss.In order to solve the conflict between the first seal right and the execution of priority,since 2012,Higher people's courts have issued a series of local regulations.For example,in 2012,Zhejiang High Court Enforcement Bureau issued “the solution to some difficult problems in the process of a plurality of creditors applying for opposition to execution and execution of the same person”,whose 14 th and 15 th questions is related to the disposal problem of the mortgaged property which is sealed by the first court.For example,in 2014,Shanghai Higher People's Court issued “the answers to the questions concerning the right of disposition of the seized property between the first seal court and the court of priority ”.The paper systematically puts forward solutions to the first seal's conflict.In April 12,2016,the Supreme People's Court promulgated “reply on the issues related to the right of disposition of the seized property between the court of first seal and the court of priority ”,and the Supreme People's court for the first time in the form of judicial interpretation responded to the questions of the first seal's conflict.But throughout the above provisions,although there are many breakthroughs and highlights,but there are also varying degrees of defects.Therefore,this paper aims to sum up the highlights and defects of the above provisions combining with some institutional innovation,and then form a relatively solving mechanism of the first seal's conflict.This paper is divided into the following sections:The first part defines the concept of the right of first seal and the priority of creditor's rights.For the concept of the first seal right,few scholars have defined it.In this part,the author defines the concept of the right of first seal in the light of the relevant laws and judicial interpretations and the cognition of the right of first seal in the judicial practice.The priority of creditor's rights is the concept of substantive law.And the nature of the priority of creditor's rights in civil law has not been unified,especially the priority creditor's rights guaranteed by all kinds of priority.Therefore,this part of the priority system locate the concept and nature of the priority through the use of foreign priority systematically.The second part discusses the conflict between the right of first seal and the priority of creditor's rights.It has included the following: the essence of the first seal's conflict,namely the conflict of litigation process;the root of the conflict,namely the limited stage,the nature of the underlying and limitation of debt settlement;conflict performance,namely priority creditor's rights enforcement is subject to the first seal court's process and the first seal court is idle at the disposal of seized property;adverse consequences of conflict,namely increasing the cost of the realization of priority claims,increasing the deferred payment and reducing the balance of other creditors.The third part is the comment on the court's judicial policy and judicial interpretation of the Supreme Court.This part first introduced according to time Jiangsu,Zhejiang,Shanghai three high court's judicial policy,and summary highlights and loopholes.Secondly,the comment on the introduction of the Supreme Court's judicial interpretation,and points out the problems that it limits the right to dispose of all first seal court and lead to reduction of execution efficiency and waste of judicial resources.The fourth part improves the settlement mechanism of the first seal's conflict.This part's main material and basic is the analysis and conclusion of the third part.First of all,to learn and retain ideas on the spot of the Supreme Court and Higher Courts;secondly,this part makes up for the defects through drawing lessons from the program of preliminary assessment by the judge and constructing a screening program of liquidation limit.Finally form a relatively complete solution mechanism of the first seal's conflict.