| Civil enforcement is a key element of the civil justice as well as the equity in the eyes of citizens. From the history, the civil enforcement has not systemized until the previous days. With the independence of civil enforcement, the power has been enlarged and is consist of the efficiency and justice. In practice, the traditional civil enforcement has many drawbacks and a host of verdicts has not been enforced. From the different situations, the causes of the reforms of civil enforcement are varied. However, the countries and regions are facing with the difficulty and mess situation, are put emphasis on the effects. Therefore, they opted many measures to reform and adjust the civil enforcement where the UK is a sample.As the succession of Wolf reform, the former justice ministry started a serial of activities to reform the civil enforcement. They put forwarded the suggestions on the systems and the procedures to assess the effects objective of the civil enforcement. The radical reforms are conducted to the civil enforcement system and heading to the effects. From the values of the civil enforcement reforms, one can observe the reaction between objectives and forms. As the civil enforcement power can reflect the procedural characteristics. In the process, only the objectives and bottom of private rights are emphasized, can the reasonable and stable framework can be realized.There five parts in this paper and it simply illustrates the main problems of civil enforcement procedure in England and Wales. In addition, this paper learns the inner spirit of the operating and controlling mechanism of civil enforcement power in the England and Wales from history and reality, reforms and development, principles and structure, rules and cases of multiple approaches.At the beginning, this paper will focus on the definition of civil enforcement power which is the keyword of this paper. We should make the nature of civil enforcement power as the logic starting point of the research focusing on operating and controlling mechanisms of civil enforcement power, thus the whole civil enforcement procedure is prevented making a fundamental departure from the characteristic of civil enforcement power. In order to fully reveal the operating and controlling mechanisms of civil enforcement in England and Wales, this paper focuses on the generalized civil enforcement power. In England and Wales, the civil enforcement power includes enforcement implementing power and enforcement judging power. More detailed, on part of the enforcement implementing power is “enforcement power” to recover a sum means taking control of goods and selling them to recover that sum, which is specified in Tribunals, Courts and Enforcement Act 2007; Another part is implemented by court through court-based methods. Because the separation of functions within civil enforcement power in England and Wales, The enforcement implementing power is executive, and enforcement judging power is judicial.If there is no relay between innovation and reform, or the development of civil enforcement system in England and Wales would be entrenched in tradition, it impossible to bear the history of civil enforcement system in Common Law and establish a lot of precedents. Thus, chapter I will provide an analysis on the civil enforcement system on bases of the history of England and Wales. The civil enforcement system of England and Wales during Anglo-Saxon period was affected by ancient Germanic law, and those civil enforcement methods were developed from the early system of distress of goods and other properties. In fact, civil enforcement procedure rules during the formation and development of the common law in middle Ages are still partly applied in modern times. We can get a glimpse of the development that from the self-help relief to the combination of self-help and public relief from these rules of the Common Law, Statute Law and Equity Law. The medieval civil enforcement system has had a significant impact for the civil enforcement practice, however, starting from the second half of the 18 th century, the civil judicial situation “Where there is no writ, there is no right” was unsuited to the changing needs of the rapid development of economic and political situation. Equity procedures still retained medieval characteristics in many ways, and these characteristics including old, rigid and severe delays in the hearing of cases carried out judicial reforms in England and Wales in 19 th century. In pace with the realization of the reform of Judicature Act 1875 as well as the establishment of County Court in 1846, civil enforcement system abandoned the drawback of formalism, improved the original foundation, and established a series of new enforcement methods which laid the foundation for the modern civil enforcement system of England and Wales. In the 1990 s, the civil justice system England and Wales still faced a number of obstacles, for examples, high costs, delays, complicated litigation procedure and obscure terminology. In this situation, public dissatisfaction with the administration of justice was increasing, so a new round of judicial reform—“Wolf Reforms” was started. Although this reform was not involved the civil enforcement system, it became to be the catalyst of civil enforcement reform in England and Wales. The former Lord Chancellor’s Department implemented a series of more comprehensive and thorough consultation. The purpose of consultation was to enhance the effectiveness of the civil enforcement procedure in the aspect of the legal system, in order to finally achieve the balance between access to enforcement of judgment which is expected in the modern society and the protection of vulnerable groups.Whether the operation of civil enforcement power is scientific and the standardized degree of the operation of civil enforcement power relates to the efficiency, functionality and practical utility of civil enforcement power. And chapter II examines general aspects of civil enforcement power in England and Wales, including operating subjects, operating patterns, operating security, operating efficiency and operating cost to reveal the value of operation of civil enforcement power. Because enforcement implementing power is always dominant in civil enforcement power as well as the main task of civil enforcement is to realize the creditors’ rights in judgment rapidly, uninterruptedly and in time, the value of the civil enforcement power should focus on reflecting efficiency. As a result, the operation of civil enforcement power is ought to focus on the value of fairness and efficiency. Firstly, the operating subjects of civil enforcement power in England and Wales are the court and enforcement agency. Court has the power to issue the writs and supervise the important matters in enforcement procedure. Enforcement agency is given the civil enforcement power after receiving the writ which issued by the court, and parties enjoy a right of appeal against the judge’s ruling on the important matters. This procedure actually forms supervision mechanism that takes judicial power to restrain administrative power and takes appeal mechanism to restrain judicial power, and realizes the separation between trial and enforcement. Secondly, in the terms of the operating patterns, operating civil enforcement powers inevitably pursue adversary pattern in British and Wales because of the influence of civil procedure. So the choosing right in civil enforcement procedure is given to creditor. However, the pattern of choosing enforcement methods independently by creditor is easy to put creditors in a more disadvantageous position which makes the enforcement procedure slowly and the judgment can not be effectively enforced in the end. In fact, the civil enforcement power is not always negative in each operating individual enforcement method, and recently, the adversary system is wakening gradually in civil enforcement procedure through civil enforcement reforms in England and Wales. These reform measures are trying to absorb the rational core of inquisitorial system and eliminate the malpractice of adversary system in operating the civil enforcement power gradually. Thirdly, in terms of operating security, England and Wales made efforts to improve sanctions regimes against the debtor. On the one hand, the debtors are divided into two categories and treated differently in England and Wales: the debtor who “can’t pay” and the debtor who “won’t pay” according to the reason why the debtor have not paid the debt. On the other hand, the civil enforcement reform in England and Wales sets the appropriate deterrence mechanisms against the debtor who “won’t pay” in order to ensure the smooth operation of civil enforcement power. Forthly, in terms of operating cost, the function of the court in civil enforcement proceeding has been changed in England and Wales through enhancing the initiative of court. By strengthening information disclosure obligations and improving oral examinations, the information accessing channels have been expanded. And simplifies the legal terms and procedures for enforcement, In conclusion, these measures all provide procedural safeguards to improve the operating efficiency of civil enforcement power. Civil enforcement cost is another key issue of balancing the interests of different parties in the legal relationship of civil enforcement. Because of the different interests, the demands of creditor, debtor and enforcement agent are quite different in civil enforcement proceeding in England and Wales. In order to solve the multiple disputes between debtors and enforcement agents including cost standards, transparency of fees and the possibility of abuse of the cost system, England and Wales is carrying out a series of reform measures of civil enforcement costs. The new fees will impose a “cap” on the fees that can be charged, which will eliminate the potential for overcharging, will address allegations of “phantom” visits and will reduce disputes, as fees will be based on fixed, readily identifiable stages, rather than the current myriad of ambiguous schedules.There is possibility of abuse in operation of any power, and the civil enforcementpower is no exception. If there is no necessary control of civil enforcement power, itis bound to threaten to the legitimate interests of the parties and the third party, whois not involved in the original trial, and the effective operation of the enforcementpower. This problem is particularly prominent in the field of civil enforcement in theEngland and Wales, so chapter III focuses on the controlling mechanism of civilenforcement power in England and Wales. The controlling mechanism of civilenforcement power of England and Wales has followed the principle of public powerprotecting private right and it restricts the application of self-help. In the civilenforcement reform England and Wales, the former Lord Chancellor Departmentcarried out lots of reviews and consultations of the abolition of “distress for rent”which was measures of self-help in common law.After years of argument, thissystem is finally abolished in Tribunals Courts and Enforcement Act 2007. However, it is most likely to infringe the legitimate interests of the parties and the third party, in enforcement proceeding. The civil enforcement procedure gives the parties, interested parties, as well as the third party remedies when their private rights had been infringed. The controlling mechanism of civil enforcement power of England and Wales has also followed the principle of interest measurement. England and Wales coordinate the relationship of different parties’ interests in public law or private law through the civil enforcement reform. On the one hand, the reform pays attention to relationship between the authority that the enforcement agency has maintained and the interests of different parties in enforcement proceeding. On the other hand, except maintaining the authority of enforcement power, it is important to protect the private interests in operation of the civil enforcement power. There are three main aspects of the controlling mechanism of civil enforcement power in England and Wales: establishing power to restrict civil enforcement power, protecting right of parties in civil enforcement procedure and third people outside the case to restrict civil enforcement power, and providing to scientific and closely procedures to to restrict civil enforcement power. Through the triple controlling mechanism, the situation that civil enforcement power excessive concentrated and abuse Executive behavior and supervision restricted ineffective is changed. In addition, English law emphasizes decentralization and constraints of the enforcement power at the same time, as well as cooperation and coordination between inner enforcement powers in order to meet the needs of efficiency. Furthermore, under the influence of European integration, legislation of England and Wales has undergone considerable changes in both structure and content. As part of the civil enforcement law becomes to have new connotation and denotation, statutes of civil enforcement system are affected and challenged by European Union law.In recent years, the chaos of civil enforcement has become to be the major dilemmas of the status of civil enforcement in both England and Wales and China. Chapter IV makes rational anlysis on the operating and controlling mechanisms of civil enforcement power in England and Wales, and illustrates the reference and inspiration to China. The anlysis focuses on the practical value and significance including pursues the efficiency, positioning of the role of the State, system-wide decentralization, the pursuit of the balance between interests of different parties. The anlysis also include problems and defects caused by adversary system, which are information collection procedure, private enforcement sector regulation and enforcement costs.The starting of civil enforcement reform in China and England and Wales are almost simultaneously. The idea that civil enforcement power and judicial power should be separated is in accordance with the further plan and orientation of civil enforcement reform in China. To improve the operating mechanism in China, we should scientifically specialize and divide the powers between judge and enforcement agents, build high-trust society, adjusting the role of the State in terms of informal debt management. In addition, to establish the controlling mechanism in China, we ought to distribute the civil enforcement power check and balance under the Department of Justice reform, protect human rights, and improve the civil enforcement relief system as well as the external supervision mechanisms. |
PDF Full Text Request