A Study of Civil Properyt Preservation and Advance Execution System in Mainland China

• Main Authors: CHEN,HSIEN-MING, 陳憲銘
• Other Authors: HUANG,YANG-SHOU
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/226yte

碩士 === 東吳大學 === 法律學系 === 107 === Besause of the rapid rise of mainland China’s economy, attracting many Taiwanese businesspeople for investment, but mainland China’s market has high credit risk, difficulties in collecting accounts receivable, caused the problem of Taiwanese businesspeople’s fund procurement, the disputes have being increasing. Even if there are such legal documents in favor of winnimg a lawsuit through legal proceedings, and dispute betwween partirs could be resolved by enforcement procedure of right of creditors. However the creditors need to experience a long wait for the implementation of the first trial, second trial process, during which there will inevitably be factors that impede the implementation of the instability. Enforcement procedure, the Civil Procedure Law of the mainland China has regulations, but is relatively simple, and the lack of a unified code of civil enforement in mainland China. In addition, “difficulty for execution” and “chaos for execution” have always been the greatest problem with practice of civil enforcement in mainland China, then often make the creditors difficult to claim or even can not get the claim belongs to the creditors. In view of creditors have been unable to achieve their creditor’s rights with civil execution procedures, so the modern society is undergoing a transformation of damages by the traditional ex post sanctions relief methods to advance the prevention of damage and the realization of the rights protection. Mainland China’s “Civil Procedure Law” and “Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China” pre-litigation request urgently needed to meet the creditors , made provisions for “properyt preservation system ” and “advance execution system”.Property preservation system is a civil lawsuit to ensure future execution of judgments, to protect the rights and interests ofcreditors from unnecessary damage so as to use the temporary preservation of mark the legal remedy system of the property；Advance execution system,refers to before the final judgment be made, the court will rule one party to pay, contributes to making up the lack of administrative litigation after thejudgment and protecting the lawful rights and interests of the parties. Besides preface and epilogue, this article consists of five parts, attempts to introdce the concept, nature, functions, the legislative course of development of the system, and about civil procedure law, judicial interpretations and the terms of the “properyt preservation system ” and “advance execution system” in mainland China. Hoping to make an understanding of the “properyt preservation system ”and “advance execution system” of mainland China at present, then the comparison of properyt preservation system（provisional attachment, provisional injunction, and provisional execution）, investigate current regulations and different acorss the strait ,and there are also some procedural requirements of the unreasonableness for the“properyt preservation system ” and “advance execution system” in mainland China of the need to be refined, so proposed some improving suggestions to more appropriate to protect the legitimate rights and interests of the creditors.