Research On The System Of The Subrogation On Actio Communi Divedendo

The cause of problem of difficult enforcement in China is complex,which has attracted wide attention of the whole society.In the enforcement procedure,when it is necessary to enforce the property jointly owned by the person subject to enforcement and others,it will inevitably involve the balance of interests of the three parties: the applicant,the person subject to enforcement and other co-owners,which makes the difficulty of enforcement of the common property more prominent.For a long time,China did not have specific provisions on the procedure of enforcement of joint property.It was not until Article 14 of the Supreme People's Court's Provisions on Sealing up,Seizure and Freezing of Property in Civil Enforcement of the People's Court,which was promulgated in 2004,that the system of the subrogation on Actio communi divedendo was first established in China,to fill the legal loopholes.However,since its implementation,the system of the subrogation on Actio communi divedendo has been controversial in practice.Up to now,the courts around the country have not formed a unified enforcement rule of common property,nor fulfill the advantages of this system.The problems of the enforcement of common property in the legal level need to be solved urgently.This paper attempts to explore the nature and right basis of the system of subrogation on Actio communi divedendo from the theory of subrogation system in traditional civil law,clarify its application,compare and analyze with relevant systems,summarize and reflect on its main disputes in judicial practice,and finally put forward to improve the system of subrogation on Actio communi divedendo in China.The first chapter is the background of the establishment of the system of subrogation on Actio communi divedendo.This part first expounds the scope of the subject matter of civil enforcement,points out that the system of subrogation on Actio communi divedendo discussed in this paper is based on that the object of enforcement is the common property available for enforcement,and further points out that the enforcement of the common property is different from the enforcement of the other individual-owned property because it involves internal and external legal relationsthe of three parties——creditors,debtors and other co-owners,with a certain particularity and complexity,but there are legal loopholes in the enforcement procedure of the common property.In this context,the system of subrogation on Actio communi divedendo is initially established to solve the difficult legal problems of the enforcement of the common property.The second chapter is the current situation of the system of subrogation on Actio communi divedendo.In view of the lack of regulations on subrogation system in China,this part will first return to the theory of subrogation system in traditional civil law to analyze the nature and right basis of the system of subrogation on Actio communi divedendo in China,pointing out that the essence of the system of subrogation on Actio communi divedendo is a debt preservation system,and the right of subrogation on Actio communi divedendo belongs to the broad scope of management right,and then further discuss the application of the system of subrogation on Actio communi divedendo.The basic applicable rules of it are clarified from three aspects: constituent elements,exercise mode and exercise effect.The third chapter is the discrminations between the system of subrogation on Actio communi divedendo and related systems.In this part,the author will analyze the system of subrogation on Actio communi divedendo and the creditor subrogation system,subrogation enforcement system,enforcement objection litigation system,enforcement permission litigation system and other relevant systems stipulated in Article 73 of the contract law of China,so as to avoid the confusion of similar systems and highlight the existence value of the system of subrogation on Actio communi divedendo.The fourth chapter is the dispute of the system of subrogation on Actio communi divedendo in practice.In this part,the author first discusses the general disputes of the common property enforcement procedure and makes comments,then especially discusses the disputes of the husband and wife's common property enforcement procedure and makes comments,reflecting on the disputes in practice,and thinks it is necessary to improve the system of subrogation on Actio communi divedendo.The fifth chapter is the improvement of the system of subrogation on Actio communi divedendo.This part will respond to the problems raised in the article,and put forward suggestions from three aspects: improving the legal system,clarifying the basic principles and illuminating the procedural rules,in order to smooth the application of the system,and provide a standardized legal way to solve the problem of difficult enforcement of common property.