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The Research On The Legislation Of Execution

Posted on:2009-01-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:P LiuFull Text:PDF
GTID:1116360272484060Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In the modern society where the rule of law is in practice,law should have supreme authority,which is significant both in maintaining the social fairness and justice and in constructing our prosperous and powerful, democratic,and civilized socialist country.However,because of the influences of various factors in the society,the authority of law has not been brought into its full play in the judicial practice.One most serious phenomenon is that the rights specified in some effective legal documents cannot be exercised and the obligations cannot be performed.Where the boligor refuses to perform his obligations specified in the effective legal document,the state's orgnization in charge of executing the legal document will,by exercising the state's public authroity vested on it as well as taking compulsory measures of execution in accordance with law,enforce him to perform his obligations.That is called compulsory execution.The law of compulsory execution is the rule on the compulsory execution activities among the state's organization in charge of compulsory execution,the parties involed in the compulsory execution and other participants in the compulsory execution and their relationships in those activities.Given the lack of a law of compulsory execution in our country,this paper,starting with the basic concepts and nature of compulsory execution and the power of compulsory execution,analyzes the relationship between the law of compulsory execution and other relevant laws,compares the models of legislation of compulsory execution in other countries,and points out that it is the right time for us to enact the law of compulsory execution and that we should enact as soon as possible a separate law of compulsory execution in conformity with the actual situations of our country.This paper includes five chapters with a total of about 150,000 words.Chapter One is about compulsory execution and the power of compulsory execution.In order to construct a separate law of compulsory execution,we must first definite some basic concepts of compulsory execution.Compulsory execution and the power of compulsory execution are the number one problems and the core of the problems in the whole enforcement system.Thus,their concepts,features and nature are even more important.The main points in this chapter are as follows.Compulsory execution refers to the activities of the organization in charge of compulsory execution to exercise the state's public authority in accordance with law,on the basis of the legal documents with legally effective content of execution in them,to take compulsory measures of execution,and to enforce the party who refuses to perform his obligations to undertake his performance so that the content of the effective legal documents can be executed.The power of compulsory execution is the power exercised by the state's organization in charge of compulsory execution on behalf of the state,in accordance with law and certain legal proceedings,to enforce the obligor to perform his obligations specified in the effective legal document so that the legal rights of the rightholder can be exercised.Such power is compulsory,publicly authoratative and is the efficient combination of activeness and passiveness.Chapter Two is about the models of legislation of compulsory execution.On the basis of definition and nature of the law of compulsory execution,this chapter observes and studies the three models of legislation of compulsory execution in practice at present in other countries and regions,i.e.the separate legislation of compulsory execution,the mxiture of the legislation of the civil procedural law and that of compulsory execution,and the tendency of legislation of compulsory execution separated from that of the civil procedural law.And then,it makes an in-depth analysis on the status quo of enforcement difficulties at present in China as well as the necessity and feasibility of enacting a separate law of compulsory execution in our country,and thus draws a positive conclusion that a separate law of compulsory execution should be implemented in our country.Chapter Three focuses on the relationship between the law of compulsory execution and other branch laws.In making the separate law of compulsory execution,the theoretical research on compulsory execution has to be done at two levels.The first one is the external research on the relationship of the law of compulsory execution with the constitution,the civil procedural law,the criminal enforcement law,the administrative enforcement law,the bankruptcy law and so on.By conducting such research,we can both keep the consistency of the contents and the coordination of the structures of the legal system in the same country in the same period,and at the same time,compare the different features and functions of different branch laws so as to work out better structure and contents of the law of compulsory execution.The research at the second level is the internal research that focuses on the law of compulsory execution itself.It is to study the basic theory of compulsory execution,to construct the reasonable structue of the compulsory execution system and to devise perfect procedures for compusory execution.This chapter probes into the problems at the first level,expressing the following opinions. Firstly,the Constitution is the fundamental law of our country and the law of compulsory execution is only a branch law with authroity inferior to that of the fundamental law.Meanwhile,the spirit and principles embodied in the law of compulsory execution as a brnach law fully guarantee the implementation of the provisions in the Constitution on the citizens' fundamental rights and obligations.Secondly,the law of compulsory execution is closest with the civil procedural law.Both of them are part of the civil proceedings.They have something in common in the theoretical grounds and the objects of research.However,there are obvious differences between them in their nature,tasks,goals and value functions.They do not have an inclusion relation and they are not interchangeable either.They are different branch laws separate from each other.Thirdly,the law of compulsory execution,the criminal enforcement law and the administrative enforcement law constitute the legal system of enforcement in a broad sense.They are both related to each other and different from each other. Fourthly,the law of compulsory execution and the bankruptcy law overlap with each other concerning some substantive and procedural issues. However,they have their respective objects and mechanisms of regulation. They are also different in their value functions and tasks.Chapter Four demonstrates the general principles in the law of compulsory execution.After studying and comparing the general principles in the law of compulsory execution of other countries,this chapter sets up the standards of general principles in our law of compulsory execution,i.e. peculiarity,essentiality and generality.The general principles of our law of compulsory execution should include the principle of independent exercise of the power of compulsory execution,the principle of decentralization of the power of compulsory execution,the principle of exercise of the power of compulsory execution in accordance with law,the principle of highly efficient compulsory execution and the principle of coordinated compulsory execution.Chapter Five demonstrates the construction of the structure of the law of compulsory execution,which is the above-mentioned theoretical research at the second level,the relevant issues in the compulsory execution itself.This chapter shows that code is the fully developed form of statute.While a law is being made,it has to reflect the stages of development of a state's legal theories and the level of legislation.As far as the structure is concerned,we can adopt the structure of the law of compulsory execution of German and Japan because it reflects the internal and close correlated relationship between the civil substantive law and the civil procedural law and it has legislative technical advantages and scientificness which other models of legislation don't have.Moreover,we have to set up perfect procedures of supervision over compulsory execution and relief in compulsory execution.For the supervision system,we can combine the inernal mechanisms with the external ones;whereas for the relief system,we can combine the opposition to compulsory execution with the action of opposition to compulsory execution,which is a relief system providing both procedural remedies and substantive remedies.Furthermore, we have to take into consideration the relief system under the circumstances where the compulsory execution is not illegal or inappropriate,that is to say,where both the applicant of compulsory execution and the person against whom the judgment is being executed are in unusual financial difficulties.We can establish the national relief fund and provide remedies to the parties with that fund in particular cases.Such fund will further improve the social security and remedial mechanism and embody the hunmanistic care cherished in a harmonious socialist society.
Keywords/Search Tags:Civil, Execution, Legislation
PDF Full Text Request
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