Research On The Civil Execution Mandatory Management System

Mandatory management plays an important role in money claims execution as a measure of selling off properties.In the practice of execution,many courts implement the execution measures similar to the mandatory management according to the Article 492 of Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China to balance the interest of both parties and realize the creditor's rights when they can't auction or sell off the seal-up properties forcibly.Recently civil law countries like German,Japan,Korea,Taiwan region of China have established mature mandatory management system.Nevertheless we haven't established that system in China.There is a small number of academic researches on the mandatory management.On account of the practice requirement and the lack of legislation,this paper will analyze the theory basement and establishment necessity of mandatory management,and then the basic elements.Finally,it will propose the particular rules which shows how it works,based on the foreign mature legislation and experience.This paper discusses the civil execution mandatory management system from four chapters.Chapter one: Overview of the mandatory management system.It expounds the connotation,patterns,legal characters and theory basements of the system.Chapter two: Current situation of legislation and empirical analysis of China mandatory management.The legal provisions related to the mandatory management includes article 492 of Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China and Compulsory Enforcement Act(protocol).The measure stipulated in article 492 is not mandatory management,and the protocol needs to complete the provisions.In practice of civil execution,existing execution measures can't deal with the requirement of the execution on account of the lack of particular procedure provisions.Even though the courts have explored some good measures,there are no measures generally used to solve the practice problem.Therefor it's necessary to stipulate the mandatory management system definitely through legislation form.Chapter three:Academic controversy of mandatory management system.Before the specific conceive of mandatory management,it's necessary to discuss the academic controversy of it.This part will focus on the range of application,subject matter of enforcement,earnings content,legal status and legal instrument form of mandatory management.Chapter four:Rules design of China mandatory management system.Base on the foreign mature legislation,this part will discuss the application condition,set-up procedure and administer system of mandatory management in depth.The administer system is the core of the system.The actions that administer takes have a decisive influence on the execution result.Thereby,this part will focus on the legal status,selected qualification and rights and obligations of the administer.