On Enforcement Procedure For Creditor's Rights Of The Person Subject To Enforcement

The enforcement procedure for the creditor's rights of the person subject to enforcement is often referred to as the “the creditor's rights enforcement procedure”or ”the subrogation execution procedure”.The procedure was added to the “Opinions of the Supreme People's Court on Some Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China” in 1992.The system has been used in judicial practice for nearly 30 years,but the system has not been officially prescribed in the Civil Procedure Law.the Interpretation of the Civil Procedure Law introduced in 2015 only has a principled provision about the procedure.Under this background,the application of the creditor's rights enforcement procedure is particularly confusing: When the various courts apply the procedure,there are inconsistencies in the court documents at the beginning of the procedure,the issuance of the frozen ruling,the adoption of enforcement measures and the examination of objections.Behind the chaos is the fundamental misunderstanding of the creditor's rights of the person subject to enforcement.As the subject of execution of the procedure,creditor's right is the subject matter of this enforcement procedure,which is the basis of understanding this procedure.The understanding of the the subject matter is not only related to the adoption of civil enforcement measures of the court,but also to the boundary between the operation of public power and the legitimate rights of citizens.Furthermore,in the case of the inability to understand the particularity of “the creditor's rights as the subject matter of execution”,the operational details of the system are even more blurred: Is there any differencebetween “the Notice of Performance” and “the Notice of Assistance”? What level of review should the court take when the debtor of the person subject to enforcement raise the objection? How to take enforcement measures against the creditor's rights of the person subjected to enforcement procedure so as to realize applicant's rights? Can enforcement measures be performed directly against the debtor of the person being executed? These problems are not only simple matters of procedure,but the essence is closely related to the rights of the parties and the interested parties.The proper understanding and reasonable handling of these issues affect the realization of the operational purpose of the enforcement procedure.Although academics have been discussed intermittently,from the existing literature,they didn't get the core point of this procedure.The creditor's right is the subject matter,which has not been grasped.What's more,they didn't clarify the enforcement of creditor's rights,the property of the person subject to execution and the debtor of the person subject to execution.Many of the discussions have not escaped the barriers of phenomenonal hermeneutics.From the perspective of comparative law,the representative countries of civil law system,like Germany,France,and Japan,as well as the typical representatives of Anglo-American legal including the United States and the United Kingdom,have always explicitly treated creditor's rights as a special property in the legislation.The relevant implementation measures are specified in detail,and they are standardized as an important part of the enforcement procedure,which is worthy of reference.Therefore,in the process of writing this paper,the empirical analysis method is used to propose and sort out related institutional problems,and the two important research methods of comparative analysis and normative analysis are used to analyze the system in order to respond to practical confusion,meet practical needs,enhance the unity of judicial actions of the courts,and guarantee the legitimate rights and interests of citizens.The first chapter of this paper defines and distinguishes related basic concepts.Behind the role that the procedure can protect the applicant's rights and interests is a breakthrough to the relativeity of credit and the scope of civil judgment enforcement.The procedure is linking three parties and two legal relationships.Its essence is a means of enforcement based on the subject matter.At the same time,it is different from the subrogation system,the assisted execution system and the preservation system.the creditor's rights enforcement procedure and the subrogation system are different in terms of the rights of base and the purpose and effect of the system operation;In contrast to the special obligation under the public law to assist the court in the implementation system;In the the creditor's rights enforcement procedure,the debtor of the person subject to enforcement is bound due to the existence of the debt.Finally,The stage of the preservation system and the nature of its preventive measures should also be distinguished from the measures taken bythe creditor's rights enforcement procedure.The second chapter directly cuts into the core issue of the system-to clarify the meaning of “the creditor's rights as the subject matter of enforcement procedure”.For the enforcement procedure which is to realize one's monetary claims,the the subject matter of execution is first and foremost a property for liability.The trend that a creditor's right be treated as the property made the flow of creditor's rights possible,and thus the creditor's right has become a general guarantee for people in economic life,that is,part of the property for liability.The liquidity of creditor's rights is the basis for its ability to assume responsible property.It can be seen from the enactment legislation of typical countries in several major legal systems that the creditor's right can become a property for liability which are executable.Moreover,according to the provisions of the German law,the creditor's rights which can become the subject matter of execution should be “transferable”,that is to say,the creditor's right can be the subject of execution,and its essence is derived from the economic value of the creditor's rights when the rights is in a transfer process.From this point of view,claims that do not use money as the payment content can also be the subject matter of execution,and unexpired claims or conditional claims with limited economic value should not be the subject matter of execution.The third chapter is based on the second chapter.Under the guidance of the concept of Chapter 2,it re-examines the specific implementation which is inconnection with this the creditor's rights enforcement procedure.The enforcement of the creditor's rights of the person subject to the enforcement procedure means that the relevant enforcement measures are taken for the creditor's rights,which are embodied in the legislation as “seizure” or “freezing” and “The Notice of Performance” that is usually issued at the same time,that is,the debtor of the person who subject to the enforcement procedure is prohibited from disposing at his or her own will,and is asked to perform directly to the applicant or the court.However,when the debtor refused to perform in accordance with the “The Notice of Performance”,countries experienced different approaches.Some require the use of litigation to obtain a basis of enforcement that directly implement the enforcement measures against the debtor of the person subject to execution,while others have taken enforcement measures against the debtor of the person subject to enforcement without explicitly filing an objection.It should be recognized that if the measures were taken directly to the debtor of the person subject to enforcement procedure,it is contrary to the relativity of credit and the enforcement requirements of the enforcement procedures.As far as the "transferability" embodied in the creditor's right as the property of liability,the creditor's rights should be transferred to the applicants.Therefore,the first thing that happens to the the creditor's rights enforcement procedure is the effect of "transferring".Then,by setting up a collection lawsuit,the applicants can be guaranteed to obtain a basis of enforcement which has verdicted the debtor of previous person subject to enforcement procedure as the person subject to this enforcement procedure.In this process,the rights and interests of the debtor are directly affected,and thus the law gives he or she a strong procedural right to block the enforcement procedure.The court should not conduct a substantive examination on the objection,but only a basic formal review.Behind this kind of objection,it actually reflects the status of the debtor is a person which is not a party to the case.