Research On Judicial Auction-public Law Characters And System Improvement

Judicial auction,as an execution measure of coercive disposition to debtor’s property,dominants in the forms of the property realization in the procedure of civil execution in China.Judicial auction was stipulated as the method of price change in the execution procedure by the Civil Procedural Law in 1991.Since then,with the multiple promotion of legislation,practical exploration and theoretical research,it has gone through stages of the super-officialism,the combination of auction and execution,the separation of auction and execution,and the online auction.Nevertheless,Restricted by the intricate situation of judicial auction cases and the large number of participants,the reform of judicial auction is still confronted with some problems such as severe judicial corruption,inefficient execution,obstructive right relief channels and defective supervision mechanism,which have adverse impacts on the execution of civil property.In China,aiming at the problems of judicial auction,while strengthening the legislation in the field of it,the academic theorists and pragmatists,who were each represented by procedural law scholars and judges,have been respectively lucubrating the judicial auction system setting out from the theory and practice.However,it should be noticed the rocks hindering the legislative process on the way of judicial auction practice and theory.On one hand,for instance,in the field of practice,there are an unscientific procedure design,the unclear auction entity,and the obstructed relief means;while in theory,homogenization and fragmentization of study.On the other hand,with strengthening of judicial system reform,the intensification of judicial execution and the improvement of “efficient execution”,the reconstructing of theory paradigm and system in judicial auction are worth deeper researchingAs such,based on the current construction of judicial auction in China,this paper,taking the public law character of judicial auction as the logical thread,will sequentially discuss the judicial auction from its overview,nature,subject,procedure,effect,relief and the like,which is expected to provide a reference for the reform of judicial auction system.Besides the introduction,the main part is divided into six chapters:The first chapter is an overview of judicial auction system.Beginning with the connotation of the concept of "judicial auction",it analyzes the conceptual boundary and the core meaning with the semantic analysis to clarify the connotative and denotative meaning of judicial auction.And then,by reviewing the change process as primary stage,exploration stage,standardization stage and innovation stage of Chinese judicial auction system,it points out the evolvement rule of judicial auction right,for example,“ from centralization to decentralization,again to centralization.”Lastly,it clarifies the jurisdical characteristics of judicial auction-neutrality,standardization,commonality and efficiency,etc.,as well as explores the inherent value orientation and interest equilibrium concept of judicial auction system from the perspectives of rights and obligations,execution procedures,encumbrance,execution interests and auction methods.The second chapter is the dimension of auction attributes,which mainly about the juristical character of judicial auction.The juristical character affects the systematic design of auction entity,effect,procedural construction,transfer rule of ownership and relief means,yet,there being controversies on the it between the theory of public act,the theory of private act and the theory of compromise.By clarifying the differences in seller,auction effect and relief means of these three theories,while combining with the practices at home and abroad.This chapter puts forward the basic conclusion that Chinese judicial auction practice should adhere to the characteristics positioning of public act.The third chapter is the dimension of auction entity.From auction’ s character of public law,this part accurately defines the entities: the people’s court,auxiliary body,party and other subjects participating in judicial auction.The action entity in China have experienced the process of evolution from the auction by the court,to the auction by the auction company entrusted,to the followed auction by the joint participant of auxiliary bodies inside the court,and then to the auction by the state-owned equity exchange platform as well as the judicial auction trading platform such as "Tao Bao".In this process,the entity of judicial auction is increasing,meanwhile the legal relationship is changing constantly.By comparing the legislation at domestic and overseas,this part analyzes the legal status,responsibilities and obligations of the three main entities which refers to the enforcement agency,the party and the auxiliary body in online judicial auction,in order to clarify the legal relations among the entities and to build the institutional system of judicial auction entity.In particular,it dissects the juristical relation in online judicial auction and the responsibilities and obligations of network service provider.Then it puts the juristical relation between court and bidder as public law categories,while that between courts and online trading platforms,online trading platform and bidder as civil ones.Simultaneously,the character of preemptive right and the order of preemptive right holders are analyzed.The forth Chapter is the dimension of auction procedure,which views and reconstructs the judicial auction procedure based on its public nature.Firstly,a view to traditional auction procedure.Due to the conflict between the marketability of the auction intermediary and the public law character of the judicial auction,the juristical relation between the people’s court and the auction institution is obscure,hence the practice of authorized auction gets into trouble.Secondly,a reflection on the judicial auction system.The online auction should use a comprehensive application to information-based means.The auction should be dominated by court,while the legal status of the name-your-own-price auction in judicial auction should be established,both of which improve its efficiency and authority.In the course of this,the underlying problems are analyzed hereinafter: the absent rule in judicial investigation towards online auction,the incomplete bulletin information,the missing display of action procedure,the gap of refund system.Information means only solved the problem of information dissemination.The auction system should offer multiple protection for the person concerned,the auctioneer,the bidder and the person not involved in the case through standardized procedure,so as to consolidate the court ’ s enforcement.Finally,it proposes to improve the judicial auction procedural system in terms of forced auction date,judicial investigation,bulletin information,refund system,and physical delivery procedures of auction transaction review procedures.The fifth chapter is the dimension of auction effect.Judicial auction has the nature of public law,for which reason auction effect should be set according to this.Especially when compared to voluntary auction of private property,it is supposed to be compulsive on the perform in passing of the title and physical delivery.Judicial auction is generally divided into three types: valid,voidable and void.Valid auction comes into three effects as action price delivery,auction ownership delivery and physical delivery.In auction ownership delivery,the affirmation to the elimination of encumbrance is relatively complex.The regulations of physical delivery,which is detailed overseas,is relatively ambiguous.Thus it’s suggested that,in China,the system should be enhanced the legislative process of physical delivery so as to protect the interests of the buyer,at the same time,the interests of relevant right holder.About the relationship between void auction and voidable auction,though existing argument,according to the guiding cases of the supreme People’s Court,it’s suggested to establish,but strictly limited,the situation of void auction.Different from the voidable auction,which can be only started through the application procedure,the void auction has major procedural defects and violates the mandatory provisions of the law.Therefore,when finding that the auction entrusted falls into the void auction,the people’s court can rule it a mistrial.In the meantime,the court may,upon the application of the party or the interested party,rule a mistrial through review procedure implementation disagreement.Last but not the least,from the Angles of protecting the interests of bona fides third party,of protecting the security of transaction and of maintaining the credibility of judicial auction,this part makes a special argumentation on the encumbrance rule,the effect of mistakenly bidding the third party ’ s property,execution recovery and the guarantee liability of blemish.The sixth chapter is the dimension of auction relief,which focuses on the reconstruction of judicial auction relief mechanism.By public character,judicial relief system should allocate corresponding relief means in different stages on the basis of dividing procedure,to realize seamless joint of relief in advance,relief in process and relief afterwards.At present,the relief measures are scattered in relative regulations,but not a systematic one.Through systematically combining relief means of the dissent action of execution by the outsider and the applicant,as well as the application for retrial of the party and the outsider,it discusses constructively about the relief entity,relief means,relief content in different process.What’s more,the comprehensive measures,which includes “ the general relief means before closing the case,the phased relief means in process” and “the objection litigation,retrial,and state compensation after case closing”...