The Limitation And Perfection Of The Institution Of Change And Addition Of The Party Of Execution

The civil execution system is an important system to guarantee the creditor's right and safeguard the judicial authority.At present,in the judicial practice of our country,the executing parties present the characteristics of diversity,uncertainty and variability.By introducing outsiders who have an interest in the rights and obligations specified in the basis of execution into the execution procedure,the system of alteration and addition of the parties to the execution enlarges the liability property available for execution and increases the possibility of creditor's rights being compensated.In order to further standardize the operation of the system,in 2016,the supreme people's court promulgated the provisions in regard to the modification and addition of parties in civil execution,which listed specific causes and procedures for the modification and addition of parties.But the judicial interpretation is not reasonable way of legislation,the complete lack of substantive solution,tend to be general the non-lawsuit relief way,in the executing practice faces court review attitude deviation,change around add execute the discretion of the parties have different scale and legal reason cannot meet the demand of reality and other problems to be solved.As mentioned above,this dissertation will analyse the concept and nature of the change and addition of the executing parties and it is clear that the change and addition of the executing parties is not a compulsory enforcement measure,but a specific system,including legal causes,initiation according to the application,review,post-relief and other procedures.The execution of the modification and addition of the parties shall be initiated in accordance with the application of the parties and shall follow the principle of statutory causes and the principle of procedural safeguard.Second traced back,from a clear system of theoretical basis and the pursuit of value targets,the analysis of subjective scope of execution expansion theory and the name of the new executive interpretation model,draw due to perform changes,additional reason complicated,the parties can only rely on the subjective scope of execution expansion theory is unable to explain executive party change,additional other reason,so the identity of the main responsibility must be introduced on the substantive law;On the basis of another entity's legal relationship,the third party shall assume the debt;Based on the relevant behaviors of the third party in the execution procedure,it is necessary to assume the debt in three situations to analyze the reasons for the change and addition of the parties to the execution.Based on the analysis of legal causes,this paper concludes that the principle of legal causes must be adhered to in order to improve the execution of parties' alteration and addition causes,and only procedural laws can be applied to determine causes,including the adjustment of legal and judicial interpretations of procedural matters.However,coordination should be maintained with substantive laws in analyzing causes.At the same time,by enumerating the legal causes on the front and back sides,adding the general provisions and setting the legislative skills of the fundus principle to broaden the legal causes.In the aspect of construction program,only in accordance with the agreed by the parties apply for start the changes,additional execution procedures,the parties at the same time to carry out public principle as the basis,specific enforcement agencies must inform obligation,found in the execution authority has the change,additional execution must timely when the reason leading to the creditors,the parties to decide whether to apply for alteration,additional by creditors.The executing organ shall conduct substantive examination of the application of the parties to the alteration or additional execution,and shall,in principle,form a collegial panel and conduct public hearings,so as to ensure that the third party whose legitimate rights and interests may be harmed shall enjoy such procedural rights as notification,request,statement and evidence.By referring to the relief system of Germany,Japan and Taiwan,this paper establishes the parallel mode of substantive relief and procedural relief and expands the scope of the trial of objection.