论执行程序中的参与分配制度

执行程序中的参与分配制度有其独立的属性和价值。目前的参与分配制度承载了破产制度应有的功能,应回归其本来的宗旨和目的。为克服平等主义和优先主义之固有缺陷,兼顾债权的平等性和个别执行程序的特点,我国参与分配制度应坚持折中原则。从参与分配制度的独立价值出发,参与分配的申请人原则上应是已取得执行依据的债权人,未取得执行依据的债权人不宜列为申请人。此外,对申请参与分配的期限应作合理规定,并建议增设分配方案异议和分配方案异议之诉等具体制度。

A Study of the System over Participating Distribution in the Procedure of Execution

The system of participating distribution has its own character. At present, it bears the weight of the function of which the system of bankruptcy is possession, its purpose and tenet should be renewed. The defects of doctrine of equality or priority should be overcome. In order to make a compromise between the equality of debt and nature of particular procedure of execution, the doctrine of eclecticism should be persisted in the system of participating distribution. According to its value, this article points out the creditors who have had title of execution are entitled to apply for participating distribution, on the controversy, those who haven't should not be applicants. Besides, this article discusses the scope of creditors applying for participating distribution and thereby puts forward suggestions for related lawsuits.