民事执行法中拍卖制度之理论基石——强制拍卖性质之法律分析

Theoretical Cornerstone of the Auction System in the Civil Law of Implementation——Legal Analysis of the Nature of Mandatory Auction

强制拍卖作为强制执行的一项具体措施 ,对其性质不能脱离强制执行行为之特性而单独予以评价。综观强制拍卖性质私法说、公法说和折衷说三种学说 ,公法说最具说服力 ,在构建我国强制拍卖制度体系时 ,应以拍卖性质公法说为其理论基石。

Mandatory auction is a concrete measure of mandatory implementation.Because its nature bears the character of being indivisible from the act of mandatory implementation,a separate comment will be made.As to the nature of mandatory auction, three doctrines have been observed comprehensively.They are doctrine of private law,doctrine of public law,and eclecticism,among which doctrine of public law is the most persuasive one.While the system of mandatory auction of China is being constructed,the doctrine of public law concerning the nature of auction should be taken as its theoretical cornerstone.