Research On The Order Of The Claims In Concurrence Of Civil Enforcement And Administrative Enforcement

As the last procedure to protect the judicial justice,the importance of enforcement is self-evident.The enforcement contest between civil executions and administrative executions is not uncommon in practice.However,lacking of related theoretical researches and legal interpretations makes this problem a lot of problems in practice,which exacerbates the current situation of "execution difficulty" and "execution chaos" in China.Through the logical analysis and comparative analysis,this paper makes a systematic study on the problem of the enforcement contest between civil executions and administrative executions.The first part is overview of the enforcement contest between civil executions and administrative executions.Through the analysis on the concept of the enforcement,the reunions and repulsions of the civil executions and the administrative executions and many other factors,this paper points out that the significance of the study of this problem.The second part discusses the main theory and legislation of the foreign countries in dealing with the problem of the enforcement contest between civil executions and administrative executions.There are four main doctrines,including:public welfare priority,private interest priority,equal satisfaction doctrine and chronological doctrine.The former two are distinguished according to the nature of the creditor's right.Equal satisfaction doctrine is proportionate.Chronological doctrine based on the time of the application of the creditor.Each of these four theories has its own advantages and disadvantages,and a country usually does not adopt only one theory,but a combination of many theories.Our theory supports the private interest priority.The third part discusses the basic principles of the enforcement contest between civil executions and administrative executions.The value conflict of civil execution and the administrative compulsory execution,its essence lies in the conflict of public and private interest.Through the analysis of public and private interests and the relationships between them,we can come to the conclusion that there are no merits exist between the public and private interests.The principle of avoidance can solve this problem.This principle based on the comparison of the legislative purpose,the risk bearing capacity,the execution cost of the creditor's right and many other factors.The fourth part is the construction of order.On the basis of the analysis of the current legal provisions and defects in our country,this paper compares different kind of creditor's rights,and sets up aorder of claims.This paper also try to establish a reasonable and effective coordination mechanism between civil execution and administrative execution.