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Implementation of the idea of competing issues

Summary: The number of creditors simultaneously or claims to the court for its enforcement, and the request of the creditor's rights can not be simultaneously met, the implementation of competing issues to arise. As the existing legislation on the issue address the lack of clear rules, judicial practice, the more confusion. This paper constitutes a condition from the implementation of competing, competing solutions such as shape and number of the angle of vision. Keywords: Concurrent Execution, competing forms solution in the civilian implementation of the program, the majority sometimes occur simultaneously or successively the implementation of human rights in its implementation of the different implementation based on the same specific property of the obligor, request the court to enforce, since the implementation of the rights of the people executed according to the type and content and implementation of various obligations of the limited nature of the particular property of people, leading to the implementation of the enforcement of rights of people can not simultaneously be met, then the enforcement of rights between the implementation of each person's rejection, a phenomenon that is the implementation of competing. Implementation of the specific property of the obligor to meet the implementation of the right people since only one person or persons to enforce the other rights holders to enforce the implementation of the inevitable exclusion, in which case, who is the enforcement of other rights holders have the effect of exclusion It is worth studying. The existing legislation only . However, due to more contents of the two principle provisions, requirements for many specific issues, there are some vague place of conflict, different approaches in judicial practice, the more confusion, we consider it necessary to analyze and clarify the common understanding as soon as possible. Pretending to discuss the following, some views and ideas are not mature, but also criticism of academic colleagues, please correct me. First, the composition on the implementation of conditions of competing civilian implementation of the competing phenomenon generally exists only in the individual enforcement procedures in the insolvency proceedings of the claims which can be translated into the monetary claims, proportional division, competing exclusion does not occur, but in the civilian implementation of the program, the enforcement of creditors are not all in order to meet the request for the purpose of money, if any part of the creditors, whose claims the contents of the request for delivery of things or acts and non-action request, the existing legislation in the allocation process would be difficult to solve the problem. Therefore, the same debt the same person to enforce a specific property, the creditor requests the implementation of monetary and non-money based on a request such as the implementation of competing under the occurrence of the phenomenon, and in the money, not between the execution of a request Concurrence occurs. 〔1〕, then, constitutes the implementation of competing in the end should have those conditions? Generally considered to constitute the implementation of a competing need to have the following conditions: (1) the subject of rights. Need to perform the existence of competing in the production of two or more of the implementation of the right people. If only a single implementation of the right, even if his execution based on a number of specific property, upon request, to perform the same, because they do not occur between the rejection of the claim, even if the number of requests can not be met, does not belong to the implementation of competing, we can see implementation of competing rights of the occurrence of only one request based on complex occurred. (2) The Executive basis. Different right to request to enforce the implementation of the implementation is based on dissimilar. Implementation can be a people's court according to the specific judgments, ruling, conciliation statement or payment order, arbitration award may be,[link widoczny dla zalogowanych], notary and other debt instruments. Implementation of the rights with a number of human rights instruments based on the same legal obligations of the property on the same court to enforce the request, there is no exclusion between requests,[link widoczny dla zalogowanych], even when the request can not be fully met, it will not happen Concurrent Execution. (3) the implementation of the subject. The implementation of the implementation of the underlying obligation shall be the same person for the same particular property, and the number of property rights have been insufficient to meet all the executive's request, and the implementation of obligations to people who have no other available for the implementation of the property. (4) occurred. Concurrence of the occurrence of the implementation need to have some time to the condition that a number of implementation can be in the same period. Here the same period, refer to the same period of time, during this time, can also have participated in implementation. In general, the number of execution to be ongoing and not yet implemented at the end of time. Not enter the execution can not be formed under the implementation of obligations on the rights of the Executive request, it is impossible the implementation of the rights of other people's request is exclusion. And an execution has ended, the right to request has been met, naturally, not with the subsequent application for enforcement of the right to request exclusion occurred. Second, on the implementation of competing forms of classification competing on the implementation of the specific form of theory and practice is usually based on whether the final implementation will be executed according to form three types of competing : concurrence between the final implementation, property preservation and the final implementation of the preservation of property between the competing and competing between. 〔2〕 this, we hold different views,[link widoczny dla zalogowanych], that the implementation of competing forms should be divided into six categories: concurrence between the final implementation, and final implementation of the preservation of property between the competing, advanced execution and implementation of the preservation of property between competing, between the prior execution and final implementation of Concurrence, Concurrence between the prior execution and prior execution, property preservation, and final implementation of concurrence between. Because the preservation of property is only prohibited the implementation of sanctions, can co-exist, so the preservation of property does not occur between the competing exclusive, but in one or the preservation of property in favor of the creditor to obtain a final ruling this case, the occurrence of competing exclusion, then can be attributed to into the preservation of property or between the Executive and the final implementation of concurrence between the final implementation. We will implement a competing form of the specific reasons for the above categories in the following analysis will be elaborated separately. (A) of the final implementation of concurrence between. Final implementation is based on the implementation of the final implementation. Usually considered, including the entry into force of final judgments under implementation, advance the implementation of decision, mediation, payment orders, arbitration awards and the notary and other debt instruments, property preservation ruling is interlocutory decisions. However, we believe that implementation should not be considered final and advance the implementation of basis, because it is the nature of the implementation of an independent basis in fact advance the establishment of implementation of the system gives the final decision has not been determined to execution. Advance the implementation of the parties is to resolve the meaning of life, the urgent needs on the production and operation, similar to the implementation of Taiwan's false declaration procedures. It is not a legally binding on the enforcement of sentences, the practice is often determined the contents of the prior execution of judgments and final results are not consistent, there against the applicant or, without losing support of the claim, but less than sentence advance the implementation of the benefit received, this time of execution appeared for the applicant is only part of the return should not be, but for other applicants who may benefit the implementation of damage. Therefore, based on a prior execution of the anticipated nature, we believe that its implementation should not be regarded as final. Concurrence between final implementation, from the Executive under the point of view, have the same type of execution based on the formation of competing, there are different types of execution based on the formation of competing. The former, such as decisions and judgments, arbitral awards and arbitral awards, etc.; the latter, such as judgments and arbitral awards, arbitration awards and the notary and other debt instruments. Implementation can be divided into specific subject matter and the money, whereby the type of subject matter from the perspective of implementation, the implementation of competing the following three cases may be: (1) execution of the request occurs when the contents are the specific implementation of competing properties. Such competing more common, such as A to B rented excavator from the subject matter and the C signed contract for the sale, but for some reason can not deliver. At this time the situation may arise, namely: in the final implementation has been based on the premise, B requires A return of excavator based on ownership, and C are based on the contract of sale requires A delivery excavators. Then what happened is the specific exclusion of goods - Excavator Concurrent Execution. (2) the contents of execution of the request for money and when a particular implementation of competing properties. (3) execution of the request does not occur when the contents of the implementation of money are competing. (B) the preservation of property and the final implementation of concurrence between. Preservation of property between the Executive and the final implementation of competition, is the obligor for the implementation of the same property, one or more persons apply to the court to enforce its rights to the preservation of property, the implementation of one or several of their respective rights holders Youyi executed according to request the enforcement of the property, then the occurrence of Concurrent Execution. The image of a little more, namely: the implementation of the rights of different per capita The purpose of the preservation of property rights holders is to provide the ultimate realization of the legitimate rights and interests may be, therefore prone to the preservation of property between the Executive and the final implementation of competing, and the realization of either party may lead to other difficult to achieve. (C) advance the implementation of the preservation of property between the Executive and the Concurrence. Advance the implementation of the preservation of property between the Executive and the Concurrence, is the obligor for the implementation of the same property, one or more enforcement of rights of people to court for property preservation, one or more enforcement of rights apply to the court prior execution . In civil rights cases, some of the main body because of various reasons and need cash to maintain a normal life or production operation, which requires the implementation of the People's Court before the entry into force of the verdict, ruled that duty holders who pay in advance part of the proceeds or other property, to solve their living and production required. Visible, advance implementation of the system is actually there to meet the special needs of this part of the legitimate rights and interests of the plaintiff's set, it can save the urgent needs of the plaintiff,[link widoczny dla zalogowanych], the plaintiff can meet the ruling request before the commencement of litigation to achieve its contents. 〔3〕 and the preservation of property value and purpose is to prohibit actions to safeguard the property which the status quo, and thus ultimately benefit the legitimate rights and interests of right holders to achieve. Prior execution of both competing means the realization of the inevitable failure of the preservation of property; if the effect of maintaining the preservation of property, was established to advance the implementation can not be achieved. (D) between the prior execution and final implementation of competing. We believe that the same people for the implementation of specific obligations of the property,[link widoczny dla zalogowanych], one or more persons apply to the court to enforce its rights to advance the implementation of the implementation of one or several of their respective rights holders Youyi final implementation, upon request, to enforce the property at this time implementation of competing should occur, namely, between the prior execution and final implementation of competing. Why do we take this view? The reason is that between the final implementation is based on the final implementation of competing under the place, but the advance is not the final implementation is based on the implementation of basis, it is precisely because prior execution is not based on legal instruments in force, so the two should not be between competing competing as final implementation. And if the effectiveness of maintenance enforcement in advance, it will seriously damage the dignity of law, easy to make ordinary parties have a (E) between the competing prior execution. Between the competing prior execution, the obligor is the same for the implementation of a specific property, the per capita number of the implementation of the right to apply to the court to advance execution took place when competing. Note that competing here is based on the implementation of rule based on prior execution are sometimes happen, it is clear the effectiveness of protection of a prior execution of other advanced execution is bound to fail. Based on (d) the reasons stated in its final implementation should not be included in the implementation between the competing areas. (F) prior execution, property preservation, and final implementation of concurrence between. The existence of competing not only over the implementation of several forms, but also may occur in the prior execution, property preservation and enforcement of judgments in the final. 〔4〕 We believe that this actually occurs in the implementation of the rights of one or several people were convicted based on prior execution, property preservation decisions and final implementation of the court, upon request, to enforce the implementation of obligations or the preservation of the same people that occurs when a specific property competing. Because, the same particular property may not meet the needs of all three, of course, competing will happen. Based on the preceding analysis, the three competing does not belong to the preservation of property between the implementation and final implementation of competing, but should be independent of the implementation of the new competing forms. Third, the implementation of the idea of competing solutions the inevitable result of the implementation of competing interests of the parties makes some damage, while allowing another part of the person's interests are protected. Indeed, one must reduce the protection of the interests of the other party's interests, because it could never balance the protection of interests of all parties, so this must be a due process protection under the fragmentation of the fair otherwise protected. If we allow the debtor to take the initiative to give priority to individual creditors to pay off and allow creditors to enforce by way of individual claims priority to achieve, then the debtor to repay the creditors first, or first application for enforcement of creditors may be paid in full, while other creditors may not getting paid, resulting in the same equal right to settle claims without the appearance of unfairness. Therefore, we need to build specific systems towards the implementation of the protection of the rights holder. Either academia or practitioners on the implementation of competing solutions there are many different points of view, some advocates final implementation is superior, and some advocate the implementation of excellent preservation, but also put forward a compromise point of view. Competing forms of execution based on the previous analysis, we believe that the implementation of competing solutions from the following perspective:
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