Civil Enforcement Mechanism

The difficulty in the civil enforcement has been received wide attention since the late of the 1980s as to the judiciary activities of the People's Court in China. The difficulty in the civil enforcement is a "syndrome" caused by multiple causes. In order to resolve the problem, it is necessary to perfect and supplement the concrete regulations of the civil enforcement. Except for this, it is more important to ponder the role and the value of the civil enforcement, and the mechanisms which are designed to realize the role and the value of the civil enforcement. Only doing these, it is possible to clarify the mission of the civil enforcement objectively and to realize the mission perfectly.The paper is composed of seven parts. That is Introductory Remarks, the Solid Foundation of the Mechanisms of the Civil Enforcement, the Mechanism as to the Operation of the Power of the Civil Enforcement, the Mechanism as to the Assistance to the Civil Enforcement, the Mechanism as to the Alteration of the Parties in the Civil Enforcement, the Mechanism as to the Coercion of the Civil Enforcement and the Supplementary Remarks.In the Introductory Remarks, the author firstly introduces the universal problem in the world-the difficulty in the civil enforcement, then reviews the studies on the civil enforcement home and abroad. On the basis of the review, the author comes to the conclusion that in order to conquer the difficulty in the civil enforcement, it should construct the systematical mechanisms which are directed under the role and the value of the civil enforcement as well as are pointed at the most important problems emerging in the civil enforcement.Chapter I, titled the Solid Foundation of the Mechanisms of the Civil En-forcement provides and lays a solid foundation to the later research. It includes such matters as the concept of the mechanisms of the civil enforcement, the role and the value of the civil enforcement and the system of the different mechanisms of the civil enforcement, etc. As to the concept of the mechanisms of the civil enforcement, the author put forwards that they are the interactions among the civil enforcement agent, the parties of the civil enforcement and the parties who supply the assistance to the civil enforcement, etc. As to the role and the value of the civil enforcement, the author points out that the direct value of the civil enforcement is to collect the creditor's rights maximumly, the preferential value of the civil enforcement is to collect the creditor's rights rapidly, and the ultimate value of the civil enforcement is to collect the creditor's rights justly and fairly. As to the system of the different mechanisms of the civil enforcement, the author puts forward that it should consist of the mechanism as to the operation of the power of the civil enforcement, the mechanism as to the assistance to the civil enforcement, the mechanism as to the alteration of the parties in the civil enforcement and the mechanism as to the coercion of the civil enforcemen.ChapterⅡtitled the Mechanism as to the Operation of the Power of the Civil Enforcement, mainly studies the operation and the decentralization of the power of the civil enforcement agent in China as well as the situations in the foreign countries, such as Germany, French, Japan, England and Wales and Russia, etc. By the contrast of operations of the power of the civil enforcement agent of different countries, the author concludes that in the procedures of the civil enforcement, it is crucial to distinguish the matters of the civil enforcement from the matters of the civil trial definitely, and the mechanism as to the operation of the power of the civil en-forcement agent should focus on the proper enfocement action and the relief of the improper enforcement action. In the meawhile, in order to improve the efficiency of the civil enforcement, it is necessary to empower the civil enforcement agent to examine the concrete disputes of the parties in the procedures of the civil enforcement, and if the parties object to the examination, they can file a lawsuit to recover their rights。ChapterⅢtitled the Mechanism as to the Assistance to the Civil Enforcement, mainly discusses the deficiency of the assistance to the civil enforcement in China and puts forward the suggestions to improve the quality and efficiency of the assistance. The author thinks that the difficulty in the civil enforcement to some extent is the result of the deficiency of the assistance to the civil enforcement. When reconstructing the mechanism of the assistance to the civil enforcement, the following several aspects should be emphasized-the consciousness to assist the civil enforcement on the basis of the function of the various organizations or the individuals, the large scale of the organizations and the individuals, the duties and the responsibilities of the organizations and the individuals, and the efficiency and economy of the assistance from the organizations and the individuals, etc.ChapterⅣtitled the Mechanism as to the Alteration of the Parties in the Civil Enforcement, encomposes the legislation and the practice of the alteration of the parties in the civil enforcement in China, the principle problems as to it, the theoretical basis of it, and the proposals made to improve the mechanism as to the alteration of the parties in the civil enforcement. The author points out that the theoretical basis of the alteration of the parties in the civil enforcement is the effiency and the justice of the procedures. Under the circumstances of the prevailling escaping from the debts and the absence of the credit, in order to collect the debt effectively and efficiently, it is critical to enlarge the scopes to alter the parties in the procedures of the civil enforcement. The parties who object to the alteration can file a lawsuit to recover their rights.Chapter V titled the Mechanism as to the Coercion of the Civil Enforcement mainly focuses on the actuality of the mechanism as to the coercion of the civil en-forcement in China, the principle problems as to it and the suggestions brought forward to perfect it. The author comes to the conclusion that the coercion of the civil enforcement is very important to the collecting of the debt, the construction of the credit system, the economizing of the social and judicial resources. It should be highly emphasized to construct the mechanism as to the coercion of the civil enforcement as a national project, to strengthen the application of the coercive measures generally and compulsorily, and to enhance the cost of the debtors who refuse to fulfil the duties through restricting their personal freedom and the economic activities.In the Supplementary Remarks, the author fixes attention on the relationship between the civil enforcement procedures and the bankruptcy proceedings. In case that the debtor is unable to pay off the debts, the civil enforcement procedures make no sence and the bankruptcy proceedings become necessary and significant. Under the circumstances of the disj ointment between the civil enforcement procedures and the bankruptcy proceedings in China, for the purpose of the coordination between them, the following several reforms should be introduced-increasing the enthusiasm of bankruptcy petitions filed by the creditors, the obligation stipulated for the detors and their investors to file bankruptcy petitions, the power endowed to the court to commence the bankruptcy proceedings ex officio, and the implementation of general bankruptcy rule applicable for both the corporations and the individuals.