Research On The Creditor’s Subrogation On Property Division System In Execution Of Joint Property

The difficulty on enforcement is a problem in judicial practice.The value of housing and other real estate is getting higher and higher.There are more and more common phenomena of property,and more and more community of goods are involved in the enforcement in judicial practice.In our country,it is clear in the judicial interpretation of the civil execution that the creditor may bring the subrogation in 2005.But in recent years,the the creditor’s subrogation on property division in our country has been stagnant,and relevant supporting system is not perfect.The function of the creditor’s subrogation on property division system hasn’t been valued.And the function of the creditor’s subrogation on property division system isn’t work.So it is necessary to perfect the system of creditor’s subrogation on property division in China.The creditor’s subrogation on property division system is a part of the enforcement of community of goods,and It is also a kind of debt preservation system.The creditor usually conducts prosecution of subrogation on property division litigation.It is that the creditor usually conducts prosecution of subrogation on property division litigation in enforcement process,when the debtor has nothing to enforce except his community of goods,then the debtor don’t divide property with the common owner.There are a great variety community of goods,but the creditor doesn’t have to conducts prosecution of subrogation on property division litigation,when the community of goods are Several people inherit the estate together and common properties of copartners.Because it is too fast to divide the estate.There is no time to conduct prosecution of subrogation on property division litigation.And Partnership involves personal trust.There are some problems in legislation and judicature.There are no rules in substantial law about the creditor’s subrogation on property division.And it just has rules in procedural law of enforcement.There are so many case involving community property,but there are no rules for dividing the community property in Marriage Law,when the couple hasn’t divorce.The court applies the lower ranking law,when the lower ranking law has different rules with the higher law.In judicature,there are different judgment about creditor’s subrogation on property division in different court because of the lack of the rules of substantial law.There are no unified cause of action,and the debtor has different status in creditor’s subrogation on property division litigation.Even some debtors don’t take part in the creditor’s subrogation on property division litigation.When the debtor’s share divides from community of goods,how to cut apart community of goods to achieve the creditor’s rights is a big problem.If we can’t solve the problem of cutting apart of community of goods,the function of the creditor’s subrogation on property division system can’t be produced.The civil law of German doesn’t support community of goods as the enforcement property of debtor except that the judgment involves all the owners.But there are detailed rules about the method of enforceing the debtor’s movables and immovable property the civil procedure law of German.We should support community of goods as the enforcement property of debtor after dividing the debtor’s share from community of goods.There are detailed rules about the couple’s community of goods for paying off debts in the civil law of Switzerland.We can learn it that the civil law of Switzerland permits the creditor requests the court enforce the debtor’s community of goods,but the spouse can request the court divide his share from community of goods to avoid the injurious act to his community of goods.It can improve the efficiency of enforcement,if the ower forwardly request dividing from community of goods.Combine with physical truth of our country and the experience of typical country and area,we can improve and perfect the creditor’s subrogation on property division system by legislation and judicature.In legislation,we should add a rule about subrogation in our contract law.And we can define the application condition of the creditor’s subrogation on property division as,1.The creditor’s creditor’s right has been entered into the execution procedure,2.the debtor has nothing to enforce except for community of goods,3.The debtor and its co owners are not satisfied with the analysis of the property within the prescribed time limit.In the marriage law,if it is clear that the personal property of the spouse is not enough to pay off the debts of the spouse,we can divide the share of spouse from couple’s community of goods during duration of marriage.In judicature,we can uniform standard combine with the civil law about the creditor’s subrogation on property division system.And we can define the debtor’s status in litigation as third party without independent request.We can ensure the debt for personal debt or common debt during judicial procedure to raise efficiency of enforcement.We can ensure the debtor bear the cost of litigation to enforce the debtor carrying out.At last,we can ensure the method of comminjuting to perfect the creditor’s subrogation on property division system by legislation and judicature.