Research On The Execution Closing Under The Background Of “Execution Breaking”

"Execution into bankruptcy" is a popular term after the Supreme People’s Court put forward the basic solution to the difficulty of execution,which is the full name of the execution procedure into bankruptcy procedure system."Carry to break" is to solve the implementation of the difficult assistance measures,has its system itself irreplaceable.Therefore,once the system is established,it has become a hot topic of discussion and research in theoretical and judicial practice circles.However,with the implementation of the system,the problems in the judicial practice are coming one after another,and become the focus of attention."Execution to break" is to solve the problem of the enterprise legal person as the person subject to execution,and no property available for execution,the execution of the case into the bankruptcy procedure,the smooth exit.But in judicial practice,through the Chinese net written judgment related cases query,can be found under the "turn of break",there are many problems in the execution case was concluded,such as executing cases under the "turn of break" any node has closed operation,the case on the settlement way is not correct,this should be the case in this way was the execution court case in its way,performing the same case in the same point in time,ways of case settlement process,the executing court to choose the applicable law is "assorted",and some applicable law court also appeared the wrong problem.There are many reasons for non-standard judicial practice.On legislation,the provisions relating to "turn of break" laws,perform transfer provisions of bankruptcy system,as seen in the Supreme People’s Court about apply "the civil procedure law of the People’s Republic of China > the explanation of"(hereinafter referred to as the "civilian law judicial interpretation"),the legal system of "turn of break" summarizes rules,which involved to perform the terms of the settlement is the article 515 of the case,the terms of the applicable premise is declared bankrupt,the way is to put an end to.In the case of bankruptcy reorganization and bankruptcy reconciliation,how to deal with the execution cases is still in a legal vacuum.The Supreme People’s Court on implementing case is transferred for examination and guidance on some issues of bankruptcy(hereinafter referred to as the "transferred to the bankruptcy guidance")is performed to turn the twenty-one clauses in the bankruptcy system of "sublimation" and practice guidance,but it is only by the Supreme Court guidance,also did not rise to the law.Among them involved in the execution of the case of the way to end the execution of the procedure and termination.In view of the actual work of the province,the high courts of various localities have formulated corresponding guidance opinions on "transferring the executive power to the breach".Although the Supreme People’s Court and local high courts have issued corresponding regulations on the system of "holding the court to break the law",in terms of the number,there are still few relevant legal regulations related to the system.From the quality point of view,the overlap and contradiction between the various laws still exist,which directly leads to the execution of the bankruptcy,the execution of the case handling method of "independent governance"."Turn of break" perform the final time node,settlement method,law reference inconsistent and even error handling,not only may damage the interests of the creditors,in the case of bankruptcy reconciliation and bankruptcy reorganization,may also not good for the person subjected to execution credit recovery,"different sentence" connection with the operation also greatly harm the judicial authority.Accepting the bankruptcy application is the beginning of the bankruptcy procedure,as well as the starting point of declaring bankruptcy,bankruptcy reorganization and bankruptcy reconciliation.It should also be the accurate time node for the execution of the case under the "holding to break".The final procedure is to press the "pause button" of the program,and the relief method is to resume the execution when the available property is found,while the termination method is to end the execution of the program when it is not necessary to continue.Bankruptcy procedure has the value of "immunity" and its function is to guarantee the fair compensation of all creditors.Therefore,under the "holding to break",the execution case closure should be the end.On the premise that the existing Civil Procedure Law of the People’s Republic of China(hereinafter referred to as the Civil Procedure Law)has explicit provisions on the termination of execution,and on the basis of giving the judge discretion,under the "implementation of the change",the termination of execution of an execution case shall invoke the provisions of Article 257 of the Civil Procedure Law.