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Concise Analysis in the Subrogation on Property Division Litigation

Author: QianXin
Tutor: ZhangLi
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: Creditor Apply for Execution Common Property Subrogation Property Division Litigation
CLC: D925.1
Type: Master's thesis
Year: 2012
Downloads: 35
Quote: 0
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Abstract


The Subrogation on Property Division Litigation is a litigation arised from the civilexecution, when the execution applicant Instead of the person subjected to executionprosecutes to divide the common property of the person subjected to execution with others.The social cause of this new type of litigation is that a large number of the debtor does notrepay the debt and widespread courts have problems to enforce successfully. There are fourestablishment of conditions of this litigation: one of the property-owner owns the debt and thedebt has been confirmed legally, the creditor has filed a petition to enforce, the debtor has noother available property except the common property, the co-owner of the property do not putforward to split the common property. The litigation can facilitate the enforcement completesuccessfully, maintain legal authority effectively, and protect civil rights fully. By the sourceof the claims, the Subrogation on Property Division Litigation can be classified into theSubrogation on Property Division Litigation caused by statutory debt and the Subrogation onProperty Division Litigation caused by intended to set the debt. Statutory debt can be dividedinto infringement of the debt, negotiorum gestio of debt, Unjust Enrichment of debt, and debtfor Negligence on Contracting. The agreed debt can be divided into contractual obligation andunilateral promise of debt. All types have their own characteristics. By the nature of commonproperty, the Subrogation on Property Division Litigation can be divided into matrimonialproperty, family common property, partnership property and inherited property. TheSubrogation on Property Division Litigation which caused by the different nature of thecommon property will have a certain impact on trial.Nowadays, the trial of the Subrogation on Property Division Litigation has something todiscuss on the procedure and substantiality. There’re three issue need to be paid attention onthe procedure:1、 Although individual court has accepted the lawsuit filed by theadministrative organs as creditors, the administrative organs under the current legalframework do not have the right to sue a Subrogation on Property Division Litigation, but it isthe trend that administrative organs will become the plaintiff of the litigation;2、Each courtlists the debtor and other co-owners of the common property in different status, they shouldbe listed as the defendant in the Subrogation on Property Division Litigation;3、To improvethe efficiency of the trial and the enforcement, facilitate the parties to attend litigation, ensure the debt to be paid off, it recommends to set up a new type of the exclusive jurisdiction ofcases, which ordains the enforcing courts or the courts that actually seal up, distrain, freezingof property can have jurisdiction with the Subrogation on Property Division Litigation. Thereare two difficulties on entity processing: how to clarify the personal debt, and how to defineand divide the common property. We can clarify the personal debt by the feature ofinfringement of the debt, negotiorum gestio of debt, Unjust Enrichment of debt, debt forNegligence on Contracting, contractual obligation and unilateral promise of debt;whendefining and dividing the common property, we ought to define and legitimately dividematrimonial property, family common property, partnership property and inherited propertyaccording to the different types of common property. To cope with the inevitable numerouslitigations in the future, legal professionals must pay adequate attention and do more research,so that this new type of litigation could exert the expected efficacy. There are21,272characters in this paper.

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