Research On The Standard Of Applying For Participation In Distribution Conditions

As a kind of compulsory enforcement procedure,participatory distribution procedure aims to make up for the deficiencies of the limited bankruptcy legislative model in order to realize the equal protection of creditor's rights.The participatory distribution system was established soon in our country,which exposed many problems in its operation due to the lack of judicial experience.Among them,the criteria for determining the conditions for applying for participation in distribution are the most important issues to be solved.At present,there are only judicial explanations on the criteria for determining the conditions for applying for participation in distribution,and the provisions are not detailed enough,which can not form a stable guidance for judicial practice,resulting in the dilemma of judicial confusion.Through a comprehensive analysis of the handling methods of relevant judicial documents in recent years and the pertinent investigation results of the courts at all levels in H Province,it is found that the problems existing in the current judicial practice when applying for participation in the determination of distribution conditions are mainly reflected in the following aspects: first,the standard of the provisions of "obligation to explain" is too strict,which reduces the operability of judicial practice;second,the implementation of the provisions of "obligation to explain".The examination method of "basis" is not clear enough to form a stable guidance for judicial application;the third is that the standard of "before the end of property enforcement" is not operable,and it is easy to cause repetition of procedures if it is determined strictly in accordance with the standards prescribed by judicial interpretation.The disorder in the above judicial practice hinders the realization of the system purpose of equal protection of creditor's rights by participating in the distribution system.In order to solve the above problems,we need to explore the criteria for determining the conditions of application for participation in distribution to a certain extent.The function orientation of participatory distribution system lies in resolving the execution efficiency of multiple creditor's rights and making up for the deficiency of the application subject of bankruptcy system in our country;the value pursuit of participatory distribution procedure should be a kind of fairness based on efficiency,that is,limited fairness under the guarantee of the efficiency of execution procedure,taking efficiency as the main factor and giving consideration to fairness;and the perfection of legislation,our country appliesfor it.Lack of relevant legislation on the determination of conditions for participation in distribution and lack of operability can easily lead to disputes over the criteria for the determination of conditions for application for participation in distribution;the obligation of explanation in enforcement procedure is different from the burden of proof in litigation procedure,and failure to perform in accordance with judicial interpretation should not result in the impossibility of proof;the equal protection of creditor's rights should take the form of substantive equal protection.Type.For the above-mentioned application to participate in the allocation of conditions to determine the standard of specific improvement path,we should consider the actual situation of the judicial system,and need to improve the relevant supporting measures.Firstly,the substantive equal protection of creditor's rights should be clarified;secondly,the subjective standard of "unable to repay all creditor's rights" should be established.If the solvency of the executed person is not clear,as long as the applicant who participates in the distribution claims that he lacks the solvency ability;secondly,the basis for the execution of the distribution should pay attention to the substantive difference of the execution basis and the substantive civil legal relationship of the entity Hearing or examining;considering the equal protection of creditor's rights according to the requirements of the execution procedure,the deadline for applying for participation in distribution should be considered in stages;in terms of relevant supporting measures,the court shall establish a system of announcement of participation in the distribution procedure,and increase the relief ways for creditors to participate in the distribution when the court does not announce or fails to announce in accordance with the regulations.