Theoretical Construction Of Civil Execution Power

The difficulty in execution is a problem that calls for an urgent solution in judicial practice in China today and one of the important theoretical and practical questions in building the legal system in the country. In China, the theory of civil execution has long lagged behind the civil execution practice, behind the legal progress including the judicial reform and behind the pace of market economy and social development, which would thus seriously constrain the reform and development of civil execution and the solution of the difficulty in execution. This paper, under the guidance of the theory of jurisprudence, by a wealth of experience in the reform of civil execution and using such scientific methods as historical investigation, social survey, value analysis, logic analysis and comparative study, makes a comprehensive and systematic exploration of the theory of civil execution power, a foundation stone for the theory of civil execution and draws the outline of the theoretical system of civil execution power which is compatible to China's actual conditions. Above all, it will be of significance in theory and practice to the making of the civil compulsory execution law, the perfection of the system for civil compulsory execution, the promotion of civil execution reforms and the overcome of the difficulty in execution.The paper attempts to make the following innovations:1. The expansion of the study field for civil execution. For years, the judicial sector has not paid merited attention to the theoretical study of civil execution, while the theoretical circle has remained inefficient in distinguishing methodologies. It is for this reason that the paper attempts to venture into the road not taken academically before – the theory of civil execution power, which is at the same time the basis for the theory of civil execution. A theoretical study of civil execution power upon such problems as positioning, nature, structure, allocation and so on, using a different methodology and from a different viewpoint, breaks through the previous limit of studying the theory of civil execution which is just at the level of practice and lacking theoretical thinking, broads the space for civil execution studies and tries to construct a scientific theoretical system for civil execution power, which thus can provide not only a systematic, strong and theoretical basis for the practice of civil execution work and its reforms, and the making of the civil compulsory execution law, but also a useful theoretical framework for a more profound study of civil execution. 2. The innovative analysis on the definition of positioning and nature. The paper puts forward a viewpoint that the positioning and the nature of civil execution power as two issues, but with substantial difference, should be studied separately. The study for the positioning of civil execution power is targeted at the position of civil execution power in the basic state power system, aiming to solve the fundamental problem upon how to allocate this power optimally among state organs; the study for the nature of civil execution power is targered at the fundamental attribute of civil execution power, aiming to solve the concrete problems upon the operation of civil execution power. In turn, the paper conducts the study of the positioning of civil execution power at both macroscopic and microcosmic levels. On one hand, examing such respects as judicature's special status and fundamental function leads to the conclusion of civil execution power's macroscopic positioning. That is to say, civil execution power is positioned as a judicial power. On the other hand, comparing and analyzing civil execution power with civil trial power leads to the conclusion of civil execution power's microcosmic positioning. That is to say, civil execution power is positioned as one of the powers under civil judicial power.3. A rational revelation of the nature of civil execution power. The paper, based on the definition of positioning and nature, aimed at different vi...