On The Transfer Of Right To Claim Coercive Enforcement Of Civil Judgment

Enforcement orders,also called basis of enforcement,is a kind of effective legal document that indicates the existence of certain substantial rights between creditor and debtor,determines the terms and varieties of these rights and expresses its enforceability.In principle,the effectiveness of enforcement orders exist only between executive creditor and the executive debtor.But after the effective date of the enforcement orders,if the executive creditor’s civil capacity changed by the lose of capacity for civil rights such as the death of a executive creditor as natural person or the termination of a corporation as legal person,there is no doubt that effectiveness of the enforcement orders expands to the person who bear the rights as it was stipulated in the civil mandatory executive law.However,considering if the executive creditors could dispose their enforcement orders on free will through civil legal acts such as transfer of the orders,free donation to the third party and whether the third can exercise the civil right to claim coercive enforcement of civil judgment so that they can apply for the enforcement institution to launch the enforcement power,there are in depth discussion on the transfer of enforcement orders and the civil right to claim coercive enforcement of civil judgment,which are essential for the theory and practice of mandatory execution,among civil procedural law scholars and practitioners in China mainland in recent years.Enforcement order is the legal document to confirm and highlight the the civil right of claim in private law.Under normal circumstances,the substantive rights confirmed by the enforcement orders have the negotiability and usability of private right.As a fundamental procedural right corresponding to the enforcement power and exclusively owned by executive creditors,the function of the right to claim coercive enforcement of civil judgment is to safeguard the creditors’ right to request the state power to launch the procedure of coercive enforcement so that the executive debtors can be forced to perform duties imposed by enforcement orders.So the right to claim coercive enforcement of civil judgment can be transferred along with the transfer of substantive rights contained in the enforcement orders.Aimed at the transfer of right to claim coercive enforcement of civil judgment,this thesis analyzes the essence of it deeply from its connotation,nature and characteristics,discusses the theoretical possibility and practical necessity of the transfer of enforcement and right to claim coercive enforcement of civil judgment and makes an attempt to construct China’s general procedure and remedy system on the transfer of the right to claim coercive enforcement of civil judgment combined with the actual situation of enforcement in China mainland and the reference on the enforcement regulation in most civil law countries.This thesis,including the preface,consists of 7 parts and about 43,000 words.The preface points out the debate by legal theory community and practice community on the phenomenon of "the trade of judgment" under the judicial circumstance of difficulty in execution in China mainland,analyzes the cause of the phenomenon of "the trade of judgment" and summarize the focus of the debate.Then it brings in the writing perspective of this thesis-----the transfer of the civil right to claim coercive enforcement of civil judgment.The first part mostly expounds the basic theory of the civil right to claim coercive enforcement of civil judgment.At first it defines the concept of the civil right to claim coercive enforcement of civil judgment,then it analyzes its inherent attribute and sums up the major characters such as executive aging,transfer and abandon of the right,etc.The civil right to claim coercive enforcement of civil judgment is an important right enjoyed by executive and similar to the right of action enjoyed by the litigant,it is the right of claim in public law that used by the creditors to request the state organs to launch the state power rather than the right of claim in private law owned by debtors.The second part mostly expounds the general theory of the civil right to claim coercive enforcement of civil judgment.Firstly this part elaborates the essence of the right to claim coercive enforcement of civil judgment from the change of the litigant and additional perspectives.Then it states the theory on the constitutive requirements of the right to claim coercive enforcement of civil judgment through the analysis of the relations among substantive right of claim,enforcement orders and the right to claim coercive enforcement of civil judgment and expounds the essence of this right.At last it analyzes the legal basis of this kind of right of claim,which is the expansion of the subjective scope of enforcement power.The third part mostly explores the forms of the transfer of the civil right to claim coercive enforcement of civil judgment.Firstly it analyzes two modes of the transfer of this right,then it focuses on discussing the transfer of this right based on the bilateral legal action from the disagreements on the legitimacy of the transfer of the enforcement orders and proves the validity and rationality of the transfer of enforcement orders based on the substantive law theory,the analysis of procedural law and the overseas legislation.The fouth part discusses the conditions of the transfer of the civil right to claim coercive enforcement of civil judgment.Firstly it analyzes the conditions of he transfer of the right to claim coercive enforcement of civil judgment from the content of the substantive right of claim of executive creditors such as the implement of the right of claim for money,the right of claim for delivery and the right of claim for action or non-action.Then it analyzes the forms of the transfer of the executive creditors’ substantive right of claim which are classified as the transfer of the content of substantive right of claim and the transfer of the subject matter of the substantive right of claim.At last it introduces the reason or non-reason theory of the transfer of the substantive credit and analyzes the dispose of the flaw on the agreement of the transfer of the executive credit.The fifth part explores the regulation against the transfer of the civil right to claim coercive enforcement of civil judgment.This part analyzes the conditions and scope limitation of the transfer of the civil right to claim coercive enforcement of civil judgment from the regulation against the varieties of the transfer of enforcement orders,the legal inalienability and the agreed inalienability of the substantive rights of claim carried by enforcement orders,the limitation of time,frequency and object on the transfer of rights of claim for enforcement,etc.The sixth part analyzes the procedure of the transfer of rights to claim coercive enforcement of civil judgment.For the initialization mode of executive procedure after the transfer of rights to claim coercive enforcement of civil judgment,the mandatory execution is the procedure to realize the executive creditors’ right of claim in private law.According to the usability of private right,only applied by the litigant,can the court launch the procedure on the modification of executive creditors..Applicants are different for varying situations,under the circumstance of common succession,the applicant is the successor while under the circumstance of the co-existence of original executive creditors and successors,the applicants are both of them in principle.At last this part states that the transfer of rights to claim coercive enforcement of civil judgment should be censored by the enforcement court and introduces the organization,form of the censorship and the treatment measures after the censor.The seventh part mostly states the remedy of the transfer of rights to claim coercive enforcement of civil judgment.Firstly it introduces the perfect remedy system for executive creditors and debtors after the transfer of this right in procedural law and substantive law in most civil law countries（regions） like Germany,Japan and Chinese Taiwan,includes the lawsuit that the creditors apply for delivery of enforcement documents and the lawsuit the creditors request the permission of enforcement.Then it put forward some suggestions on the regulation and perfection of the remedy towards the transfer of rights to claim coercive enforcement of civil judgment in comparison with the regulations in Germany,Japan and Chinese Taiwan.At last it remedy system from the view of meaning of relative legal provision,widening of ways of relief channel for executive creditors and debtors and standardization of the censorship and disposition from enforcement court.