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Comparative Analysis of Procedure of Hastening Debt Recovery

Author: WuDan
Tutor: HanBo
School: China University of Political Science
Course: Procedural Law
Keywords: procedure of hastening debt recovery the order of payment debtor’demur comparative analysis
CLC: D925.1
Type: Master's thesis
Year: 2011
Downloads: 181
Quote: 0
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Abstract


The procedure of hastening debt recovery is a kind of special procedure that a creditor issues a payment order, requesting the debtor to repay money or securities as the main content of the debt, the Court accepting and reviewing the basis of claims of creditor, urging the debtor perform the debt within a certain period. As a special procedure in civil law countries, the procedure of hastening debt recovery is simple and convenient procedure, it performs well in Germany, Japan and other civil law countries. On the contrary, in our country it is useless. Because of legal background and the specific procedure sets. The author wants to give some suggestions through comparative analysis of the procedure of hastening debt recovery of the main countries in the world to make the procedure perform well in our country.Besides the introduction and conclusion, this paper is divided into five parts:The first chapter is an introduction of fundamental concepts of the procedure of hastening debt recovery. It firstly expounds the concept , and then summarizes the characteristics of the contemporary procedure of hastening debt recovery, at last describes the disputes of its nature. There are two views on its nature: some scholars think the procedure of hastening debt recovery is a kind of non-instance procedure, the others think it is a kind of brief procedure that people can choose. Chapter two is about the value of the procedure of hastening debt recovery. The first section is an introduction of value, value of law, value of procedure and value of civil procedure. The second section analyzes the preferences of value in the procedure of hastening debt recovery. The preferences are the value of fairness and benefits. At the same time the author describes the details of fairness and benefits in the procedure. And then explains the conflicts and coordinations between this two kinds of value.Chapter three is a description of legislative overview on the procedure of hastening debt recovery at home and abroad. The author chooses China, Germany, France, Japan and Taiwan as the objects of the analysis. It mainly introduces the legislative overview and the specific sets of the procedure of hastening debt recovery, besides the author uses diagram to show the specific process of these countries vividly.Chapter four is the comparative analysis of the procedure of hastening debt recovery at home and abroad. On the basis of chapter three, the author analyzes the similarities and differences in the procedure of hastening debt recovery from macro and micro levels. Firstly it analyzes from macro level, including legislative background and legislative style. Secondly it introduces the Jurisdictions, scopes, specific processes of these countries from the micro level.The fifth chapter is mainly about the existing problems and proposal of the procedure of hastening debt recovery in our country. Firstly, in connection with the vacantness of procedure of hastening debt recovery at present situation, the author thinks there are two main reasons: one is the reason from procedure programming itself, the other is besides the procedure. Based on the above-analysis, the author gives some legislative improvements. For example, reduce the application threshold of the payment order, shorten the time of the court to receive and review the applications, formulate the recorded items of the payment order in details and raise its legislative level, limit the debtor’s objection moderately and realize the juncture of the procedure hastening debt recovery and the common proceedings. These suggestions are given only from the fraction of the procedure sets itself , because of the limitations of the author’ knowledge of professional practice and difficulties in improving the elements besides the procedure.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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