On the Nature and Effect of the Priority Right of Seizure in Civil Enforcement in China
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For a long time, the enforcement of monetary claims in China has adopted a “mixed principle”. Only when the debtor has sufficient ability to fulfill their duties is it recognized that the prior creditor indeed has the priority of seizure. However, before there is a clear legal provision, the priority of seizure may violate the principle of legal priority, and its effect is also difficult to be classified into substantive or procedural interpretation paths. If one insists on the principle of “not worrying about inequality but about scarcity”and neglects the “diligence” of the prior creditors, the enforcement may instead fall into injustice and stagnation. Therefore, it should be considered that after the transformation of the Chinese bankruptcy system to general bankruptcy doctrine, the priority principle should be the best choice for the compulsory enforcement procedure. This is precisely the legislative intention of Article 179, Paragraph 2 of the Civil Compulsory Enforcement Law of the People's Republic of China(Draft). At the same time, to ensure the release of the function of the seizure priority system, its substantive priority effect should be clearly defined, and it also has a relative exclusion effect in the bankruptcy process. It can only be regulated by the administrator's revocation system when it is established within the critical period.
Abstract
For a long time, the enforcement of monetary claims in China has adopted a “mixed principle”. Only when the debtor has sufficient ability to fulfill their duties is it recognized that the prior creditor indeed has the priority of seizure. However, before there is a clear legal provision, the priority of seizure may violate the principle of legal priority, and its effect is also difficult to be classified into substantive or procedural interpretation paths. If one insists on the principle of “not worrying about inequality but about scarcity”and neglects the “diligence” of the prior creditors, the enforcement may instead fall into injustice and stagnation. Therefore, it should be considered that after the transformation of the Chinese bankruptcy system to general bankruptcy doctrine, the priority principle should be the best choice for the compulsory enforcement procedure. This is precisely the legislative intention of Article 179, Paragraph 2 of the Civil Compulsory Enforcement Law of the People's Republic of China(Draft). At the same time, to ensure the release of the function of the seizure priority system, its substantive priority effect should be clearly defined, and it also has a relative exclusion effect in the bankruptcy process. It can only be regulated by the administrator's revocation system when it is established within the critical period.