參與分配制度硏究 — 理論、功能與制度邏輯

Abstract

In the judicial practice, the participation allotment system is faced with applicable issues such as starting conditions, scope of application, claims payment order, remedy mechanism, and so on. It has formed a prominent contradiction with the huge application requirements of the system. The lack of theoretical issues such as its distribution principle, theory and value basis, the clearing of its position with the function of bankruptcy has led to a variety of legislative rules and lack of a core guiding ideology. Under the background of the increasingly perfect corporate bankruptcy system in China, the logic of participation allotment system has created a certain degree of confusion. Participation allotment system has led to the crisis of institutional failure. It is imperative to systematically sort out the theoretical basis, functional positioning, and institutional logic of participation allotment, and scientifically design the rules of participation allotment to provide an effective implementation system for practice and to ease the "difficulties in enforcement."

Participation allocation is an important system in compulsory enforcement law. The theoretical logic and value orientation of the enforcement law determine the core content of participating allocation system. In the field of enforcement law, there are several types of enforcement concurrence. Participation allocation is a way to deal with the problem of enforcement concurrence. As the theoretical basis of participation, the enforcement concurrence theory to some extent regulates the scope of participation allocation system.

There is a confusion of applicable standards in the legislative norms of the participation allocation system, which is rooted in the disputes of the legislation policies between the egalitarianism and the priority doctrine. The chaos of legal norms can only be resolved unless there is a unified legislative policy of participation allocation. However, the legislative policy itself cannot accomplish the task of self-selection, and it needs to combine the value considerations of participation allocation system. Based on the enforcement orientation, the basic value principle of enforcement law should be applied, in the case that it does not affect the substantive fairness, participation allocation should be dominated by efficiency values and adhere to the principle of the priority doctrine, try to include egalitarianism in the same sequence of the creditors’ rights. At the same time , in order to define the enforcement law’s attribute of participation allocation, it is necessary to make a comparison with bankruptcy law, make a comprehensive analysis of the differences between the two functions, and show the independence value of participation allocation system.

After the enforcement orientation of participation allocation is clarified from the perspectives of legislative policy and value consideration, and make a clear distinction with bankruptcy proceedings from the functional orientation, the author thinks that the creditor's right in participation allocation should be paid following the order: expense for common benefit, the right of legal set-off, creditor’s right about people’s livelihood, the loss of the infringed, special priority claims, secure claims, obligatory rights of taxation, the priority claims about attachment, and general civil claims. The author also makes a perfect conception on the rules of the participation allocation procedure.

The article consists of three parts: six chapters, conclusion, and reference.

In the first chapter, the introduction set forth firstly the background of the paper: in the field of civil enforcement law, there is a common phenomenon of enforcement concurrence. Participation allocation system allocates the property in the enforcement procedure to the creditors in accordance with certain rules, and try to solve the problem of enforcement concurrence. The author uses case analysis method to draw the conclusion that society has great demand for participation allocation system, and put forward the view that the current participation allocation system rules is insufficient, combining the existing legal norms system in China. At the same time, the current situation about the legislation and research, the theoretical significance and practical value of the topic, the research methods and shortcomings to this paper are discussed.

In the second chapter, By comparing the function orientation between participation and bankruptcy procedure, the fourth chapter makes a clear dividing line, to avoid participation allocation sliding into the scope of bankruptcy procedure, and losing independence. Furthermore, it shows the value of participation allocation. Participation allocation has a deep historical origin with bankruptcy system. The legislative structure which is formed by the cooperation between the bankruptcy system and participation allocation is the choice between theory and practice, history and reality. The root of the debate about the different doctrines of the participation allocation function is the relationship of cooperation between bankruptcy and participation allocation.

In the third chapter, the author puts forward the idea that the participation allocation system should be established in the scope of the enforcement law. The participation allocation indicates that the enforcement concurrence is formed, and the participation allocation is also a way to deal with the problem of enforcement concurrence. The solution to the enforcement concurrence is implicit in the institutional details of participation allocation. Different legislation in reality shows the difference of legislative policy. The legislative policy that participation allocation need to be chose by value consideration.

In the fourth chapter, it is necessary to grasp the correct value measurement principle in the face of different conflicts of interest in participation allocation, which is the only way to solve the problem of legislative policy choice. In the face of the value of justice and efficiency, as an integral part of the enforcement system, the purpose of participation allocation is to solve the problem of the realization of the creditor’s rights, and it is necessary to reflect the objective requirements of giving priority to efficiency. The creditor's rights involved in the distribution shall adhere to the principle of egalitarianism and give certain preferential treatment to the creditor's rights that first take enforcement measures.

About the fifth chapter, the improvement of the participation allocation system should be carried out within the framework of the enforcement system, therefore, the participation allocation system can be applied to the corporate legal person. At the same time, the following three types of creditors can participate in the distribution: The creditor who has obtained the implementation basis, the creditor who has been charged and effectively sealed the property, and senior creditors, whether or not charged. On the basis of this, the article clearly points out that the realization order of the creditor's right in participation allocation.

The sixth chapter systematizes the procedure rules of participation allocation, and fully implement the idea and principle of enforcement law in the participation allocation procedure rules. To be specific, it is necessary to clarify the time in the participation allocation and jurisdiction of the courts that presiding over the distribution. It is more appropriate that the court which firstly accept the enforcement cases take charge of the assignment. About the relief problem of participation allocation, the author put forward the proposition that the ordinary creditor raises an objection to the priority, it is necessary to integrate the dissent lawsuit of distribution into the dissent lawsuit of the assignment table, and about pre-allocation and principles of dealing with escrow.

The conclusion part summarizes the writing structure and main points of the thesis. The author establishes the theoretical basis of participation allocation system from enforcement concurrence. And successively through the legislative policy, conflict of interest, value consideration, and function orientation in participation allocation system, the part deepen the attribute of enforcement law in participation allocation system, and optimizes the allocation of creditor's rights and procedural rules, in order to be helpful to the research and judicial practice of participation allocation. Participation allotment as an integral part of the implementation law system is a method to deal with the enforcement concurrence issue. It needs to return to the theoretical logic and value orientation of the enforcement law, and it cannot be lost in the tide of bankruptcy. Participation allotment should apply the basic values of implementation law, uphold the principle of priority, try to include egalitarianism in the covenant debt, and clarify the relationship with the bankruptcy function, so as to unify the legislative policy and end the chaotic situation of legislative standards. On this basis, the core specifications such as the allocation of creditor's rights and the rules of procedure can be set scientifically.

Date of Award	20 Aug 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)