On Enforcement Undertaking In Civil Execution Procedure

In the execution procedure of civil suits, only the parties who are in basis of enforcement can be regarded as the proper execution parties in principle. Unrelated participants except for parties in the name of the execution creditor and the execution debtor generally can not be regarded as the proper execution parties. However, in the enforcement process, because of certain statutory reasons, the rights and obligations of the proper execution parties are usually enjoyed or bear by other participants, so the enforcement undertaking is needed. Execution procedure in civil suits, as a main remedy for private rights provided by public power, its function is the last successful barrier to protect private rights and restore the complete status of the private rights. How to achieve the rights of the creditor, when the execution debtor fails to fulfill his obligation, turns to be one of the basic value orientations of the compulsory execution. In many enforcement systems, there is no doubt that the addition and alteration of proper party can reflect the value orientation maximumly. However, the growing practice of this system also revealed the problems existing in its basic theory and the legislation.Every institution, from the horizontal or vertical angle, is a organic whole comprised by various aspects harmoniously, This master's degree thesis, limited in space, can not discuss and describe all its various aspects in full swing. Therefore, this article focuses on comparative analysis of basic theory of the enforcement undertaking system and reconstruction of the existing enforcement undertaking system. Apart from the introduction and conclusion, the full text of this paper, a total of 30000 words, with the exception of the introduction and conclusion, includes the four parts of the body as follows:The first part is the brief introduction of enforcement undertaking. Firstly, this part made a definition for the execution parties and made necessary explanations, namely both parties in execution process are called execution creditor and execution debtor in order to avoid the confusion caused by inconsistent definition. On this basis the paper put forward the concept of enforcement undertaking. Then, the author divided into two parts to introduce the alternation and addition of the execution parties. Finally, the paper point out the distinction among some easily confused concepts related to enforcement undertaking.The second part is the analysis of the theory of law of the enforcement undertaking. Firstly, the author introduces the theory of res judicata briefly, and the expanding on the subjective scope of res judicata. And then, through introduction of basis of enforcement, the author wants to make a conclusion that the expanding on the subjective scope of res judicata is not the most suitable theory of law for enforcement undertaking. Secondly, through analysis of the expanding of the subjective scope of execution capacity, the author wants to make a conclusion that the expanding of the subjective scope of execution capacity is also not the most suitable theory of law for enforcement undertaking. But fundamentally, the expanding of the subjective scope of execution capacity and the expanding of the subjective scope of basis of enforcement are the different aspect of the same problem. At last, the author introduces the expanding of the subjective scope of basis of enforcement briefly, and focus on rationality of it, including three aspects. This chapter is focus on making sure that the theory of law of enforcement undertaking is the expanding of the subjective scope of basis of enforcement.The third part is the analysis about the expanding of the subjective scope of basis of enforcement, and the enforcement undertaking institution. Firstly, the author analyzes the common scope of the expanding of the subjective scope of basis of enforcement. Further more, the author makes two parts to analyze the execution creditor's undertaking and the execution debtor's undertaking, and then, introduces the situations that beyond the common scope of the expanding of the subjective scope of title of execution.The fourth part is how to improve and perfect enforcement undertaking institution of execution procedure in civil suits. Firstly, through the analysis of realities of enforcement undertaking institution in our country, the author makes it clearly that the legal provisions and judicial interpretations of enforcement undertaking institution are not practical. And then, combining the previous analysis and conclusion, the author gave a clear direction of a sound system of enforcement undertaking.