A Study On The Allocation Of Civil Execution Power

As the western legal maxims say, execution is the end and fruit of the law, and the effectiveness of the law lies in its enforcement. Civil execution is not only the important approach to implement the effective judgments and the laws, but also the final step to settle civil disputes. However, the difficulties and disorders in execution which impede the establishment of judicial authority, destroy the faith of rule of law, and influence the safeguard of citizen's right, have become China's significant legal problems concerned by the whole community. The happening and worsening of disorders in execution is related to the inaccurate definition of the nature of execution and improper allocation of execution. Therefore it's necessary and urging to do systematic analysis, research and discussion of the allocation of civil execution power, which is of realistic importance and theoretic value.As different kind of power has different organization principle and internal operation mechanism, the disclosure of the legal nature of civil execution power is the precondition and basis of scientific allocation of civil execution power. Civil execution power is a public power of the state with which the civil execution agency can force the obligor to fulfill the obligation according to the effective legal documents and realize the creditor's right. The nature of civil execution power is a kind of administrative power, and it includes the power to carry out execution and the power to adjudicate the procedural matters. According to the order of allocation and the subject exercising the power, civil execution power allocation can be classified into macro allocation, meso allocation and micro allocation. Macro allocation means the civil execution power is allocated by the state to some government organ among legislative, administrative and judicial organs. Meso allocation means the organ that has the power of civil execution allocates the power to some internal organization. Micro allocation means the organization that has the power of civil execution decomposes and allocates the power to its subordinate department. Allocation of civil execution power should follow the basic principal of according to the state reality, justice, efficiency and restriction of powersFor macro allocation, allocating civil execution power to people's courts not only conforms with the basic theory of power allocation, but also conforms with Chinese historical tradition and foreign countries' common practices, which is also the best chose of various modes of macro allocation. As the civil execution power is allocated to the courts, restrict and supervision of power to power, rights to power, procedure to power should be strengthened to ensure the operation of civil execution power justly, effectively and authoritatively.For meso allocation, Execution Bureau and Judicial Police Division should be integrated to Executive Police Bureau to carry out execution and adjudicate the procedural matters. Executive Police Bureau is oriented, designed, operated and managed as an administrative organization. It's under the management of the people's court at the same levels and subordinated to the dual leadership of the court and the higher bureau. With some relative independence, Executive Police Bureau is not the internal organ of the court. Executive Police Bureau carries the power of executive case filing, executive order, executive measure enforcement, objection reconsideration adjudication, punishment decision, judicial police matter and affair management. At the same time, Executive Division should be established which is at the same level of the civil division, criminal and administrative division, to handle the substantive dispute of civil execution procedure. Executive Division has the power of trying the substantive dispute in executive procedure, nonlitigious administrative execution, arbitration verdict execution, notarization creditor's right document execution and alterant and supplemental subject review.For micro allocation, four internal functional departments should be set up to take charge of execution, adjudication, judicial police affairs and the management. Meanwhile, the personnel in Executive Police Bureau should be police. Strict access, appointment, training, management, encouragement and punishment of polices should be carried out.