On Enforcement Of Enforcement Basis With Reciprocal Payment

Enforcement basis with reciprocal payment is substantially a kind of conditional enforcement basis, a restrict on enforcement force of basis. Currently, there are no laws or judicial interpretations explicitly stipulating enforcement basis with reciprocal payment, except for limited researches in some academic works. However, cases of this kind has appeared in juridical practice, without systematic provisions, different courts adopted various approaches, which adds to legal disorder. Considering the coordination with substantial law(e.g. the application of defense right of simultaneous performance in civil law in litigation) and some values in civil proceeding(e.g. the application of counterclaim in litigation, judgment of simultaneous performance aimed at solving conflicts thoroughly at one stroke and lowering cost of litigation), it needs to confirm and specify this emerging system. Since enforcement basis with reciprocal payment may contain the concept in substantial law, reciprocal payment, if both parties disagree on reciprocal payment, there lacks clear conclusion on whether the executive division of the court could dispose this substantial content and whether both parties could apply for legal enforcement of the reciprocal payment or part of it. This dissertation puts forward the question with cases at first, then respectively introduces the necessity of establishing enforcement proceedings of enforcement basis with reciprocal payment, the relation between this concept, objective scope of enforcement force and the design of enforcement procedure of enforcement basis with reciprocal payment, thus contains introduction and the following five sections:The introduction firstly explains the source of topic basis through describing the status quo of enforcement in China, then emphasizes the importance of this research, the status quo of researches at home and abroad and the gap between domestic study achievements as well as that of overseas. At last, it introduces the research approach, methodology and the significance practically and theoretically.The first section elaborates the principles of enforcement of enforcement basis with reciprocal payment. This section puts forwards the problems emerging from the enforcement through two cases in practice, laying the foundation for the following, describes the concept, nature and force of enforcement basis with reciprocal payment and then emphasizes the necessity and values of the establishment of this legal system. This section cites the problems in the two cases and the various approaches adopted in practice to show the disorder in legal practice. Then it simply analyzes the application of good faith principle in the enforcement proceedings, highlights the significance of establishing the enforcement system of enforcement basis with reciprocal payment.The second section analyzes the relation between enforcement basis with reciprocal payment and defense right of simultaneous performance. This section introduces the concept and application conditions of defense right of simultaneous performance, analyzes the relation between enforcement basis with reciprocal payment and defense right of simultaneous performance through judgment of payment exchange, then respectively from the perspectives of the nature and application conditions of defense right of simultaneous performance, concluded that the application of defense right of simultaneous performance ought to be excluded during the enforcement proceedings.The third section discusses whether the debtor could apply for force implement of reciprocal payment. This section is mainly focused on the objective scope of enforcement power of enforcement basis with reciprocal payment, thus restricting the objective scope of its enforcement power.The fourth section structures the enforcement proceedings of enforcement basis with reciprocal payment. This section mainly analyzes the design of enforcement proceedings from the respects of activation, examination and relief of enforcement proceedings of enforcement basis with reciprocal payment, and stresses on its key points according to its distinctiveness.