| Due to the application of "limited bankruptcy doctrine" in my country,the participation distribution system came into being in response to the fact that the person subject to execution is a natural person or other non-enterprise legal person.The system was born in 1992.After four revisions and improvements,it has been 30 years and has solved a lot of problems in practice.However,this system does have imperfections,especially in the principle of repayment of ordinary claims.In 2015,three words were added on the basis of "proportional distribution",that is,"in principle".This modification is practical in practice.Different approaches to whether the creditors of the first letter are given priority or preferential treatment have arisen in the process,so there have been many different judgments and judgments in many similar cases,which has seriously affected the credibility of the judiciary.The interpretation of the Supreme People’s Court on the application of the Civil Procedure Law of the People’s Republic of China revised in 2020 has not made any changes to this article.The purpose of this paper is to demonstrate that there is no priority to receive compensation from the preservation of property from the perspective of participation in distribution.This paper mainly analyzes from several aspects.The first chapter is an overview of the priority right to repayment of preserved property from the perspective of participation in distribution.Starting from the system of participation in distribution and the system of preferential right to repayment of preserved property,it defines the difference between connotation and similar systems.It is concluded that my country’s participation distribution system should be dominated by fair value,and the function of the priority right of property is to protect the weak.The second chapter,the current predicament of the right to receive preferential compensation for preserved property from the perspective of participation in distribution,comprehensively analyzes the irrationality of preferential compensation for preserved property in judicial practice from theoretical theory to legal provisions to judicial practice.The third chapter,from the perspective of participation in distribution,analyzes the extraterritorial reference of the priority of the right to repay the preservation of property,analyzes the reasons and practices for the participation in the distribution system of foreign countries and regions and the priority of preservation of property,and compares the system logic of our country to explain my country’s participation in distribution.Institutions and preservation of property cannot create priority.The fourth chapter is to solve the dilemma of the priority of the right to pay for the preservation of property from the perspective of participation in distribution.Through the problems raised above,it gives the solution to the problem,including the application of the law of the unified participation distribution system,the application of the method of measuring the interests of individual cases,and the analysis of other types of problems.The first letter of creditors to establish alternative compensation methods,differentiate preferential treatment and priority,etc.Finally,the conclusion of this paper is that in judicial practice,the creditors who provide clues to find property and contribute to the first letter have the right of preferential treatment,rather than the right of priority to receive compensation.For the first letter creditor who has not provided property clues,a compensation method is established for him,that is,the method of measuring the interests of individual cases.In addition,the right of preferential treatment should not be limited to the first creditor,and other creditors who have contributed to the search for the debtor’s property should also be included in the scope of the right of preferential treatment,which is also the proper meaning of the method of measuring the interests of individual cases.The research methods of this paper are mainly case analysis,literature analysis,comparative analysis,etc.It is expected to make a comprehensive analysis of the irrationality of the practice of prioritizing property preservation in practice from different angles. |
