| Under the background of limited bankruptcy in China,the system of civil execution participation distribution plays multiple roles in solving execution competition,case allocation and personal bankruptcy.However,Due to the unclear function of distribution participation and personal bankruptcy,and the unclear legal provisions,the application of distribution participation has aroused many disputes in judicial practice.Based on 194 judicial documents and 3 core cases on the application of participation in distribution in civil execution since 2020,it is found that in judicial practice,there are big disputes in the application subject,application time and the determination of insolvency situation.In terms of the scope of subjects participating in distribution,although the law clearly stipulates that when the debtor as the enterprise law,it is not applicable to participate in distribution and should be compensated according to the principle of priority,some courts still have to face the strong request and objection of the parties for equitable compensation.Moreover,the law restricts the participation of creditors who without enforcement basis in distribution,which will make it difficult to protect their legitimate rights and cause problems of social stability.In terms of the definition of the time for applying for participation in distribution,due to the excessively general provisions of the law on the deadline,courts in different areas have different understandings of the "termination of execution",and the law’s explicit and preventive role to the parties is not strong,which also can cause disputes.In terms of judgement for insolvency,the system lack of specific laws and regulations and adopt different standards are too casual,mean while the power,which can decide,pass the buck to the litigant for burden of proof and their discretion is larger,moreover it is common difficulties to find out the execution of the property clearly and their value in dispute cases.In terms of the subject of participating in distribution,it is necessary to exclude corporate debtors from applying the mechanism of participating in distribution,it can force dissatisfied creditors to apply for bankruptcy.Meanwhile it is unfair to completely exclude the creditors who have not obtained the enforcement basis from participating in the distribution,they actively exercise their rights,but still have not obtained the basis temporarily due to objective reason,so that their rights are damaged.In terms of the application time for participating in the distribution,notice and publicity system should be introduced into the process of participating in the distribution.Other creditors shall apply for participating in the distribution within the specified time from the date of notification and announcement,so as to determine the cut-off time.In terms of the identification for insolvency,with the gradual pilot of personal bankruptcy,the advantages of the bankruptcy system of the comprehensive liquidation of the creditor’s rights and debts of the person subjected to execution are gradually highlighted,and the participation in distribution will gradually restore to the case allocation execution procedure,and it is not appropriate to take insolvency as a prerequisite.Under the premise that the system of personal bankruptcy has not been established comprehensively at present,the identification of insolvency should be lenient so as to safeguard the interests of more creditors. |
