A Study On The Boundary Of Jurisdiction And Executive Power

The judicial and executive power are the authorities granted to the People's Court by the Constitution of China.In the field of civil action,jurisdiction usually refers to the power granted to the People's Court for the trial of cases in dispute brought to the court by parties in action,and executive power refers to the power exercised by the People's Court as granted by the State,and at the request of the execution applicant,to enforce the other party subjected to execution to perform the obligations under the law.However,with the increasing perfection of China's civil laws and regulations,especially the development of the protection system for the interests of both parties and the interested parties,disputes about whether we should exercise the executive power or judicial power also rise during the procedure,and thus the study on the boundary of jurisdiction and executive power is needed.This article takes above issue as the object,uses overseas legislation as references,analyzes and concludes the development,present status as well as shortcomings of the boundary of jurisdiction and executive power referring to the objections and disputes during the procedure and then puts forward several suggestions.This article is divided into five chapters as follows:Chapter ? is about executive power and jurisdiction.The paper centers on the boundary of executive power and jurisdiction and it will discuss and elaborate the key issues about executive power and jurisdiction on the first place.The analysis of the feature and key components of executive power as well as the characteristics and elements of jurisdiction is the basis of the study on the boundary of jurisdiction and executive power.The author agrees executive power belongs to one of judicial administration power though it can be exercised by the court,for it is not part of the judicial power.When it comes to jurisdiction and executive power,the concept of judicial power must be considered.In China,there are different definitions and categories of judicial power,including several different concepts in narrow,broad and broader sense.In narrow sense,judicial power refers to the jurisdiction and executive power exercised by the court;and in the narrowest sense,it only refers to the jurisdiction exercised by the court,excluding the executive power.In a broad sense,it includes the jurisdiction and power of control;in the broader sense,it means the jurisdiction,police power,procuratorial power and public security administration power;and in the broadest sense,it refers to powers related to the law exercised by the courts,the procuratorates,public security bureaux,justice bureaux,lawyers and notaries.The author believes that judicial power refers to jurisdiction and executive power exercised by the court as well as other supplementary power granted to the court.This chapter is divided into four sections.The first section is about the nature and characteristics of executive power.The second section is mainly concerning about the theoretical value of executive power.The third section describes the composition and characteristics of jurisdiction and the forth introduces the relationship between jurisdiction and executive power.Chapter ? is about legislative evolution about execution remedy and the separation of judgement and execution.The separation of judgement and execution contains two kinds of meanings,the first one views the issue externally while the second one observes it on an essential and internal basis.The first one refers to the court sets up a corresponding organization in charge of execution exclusively in order to avoid unreasonable administration,which has already been done;The second one refers to whether it exercises executive power or jurisdiction when dealing with the disputes occurred on the executive procedure,which belongs to the issue of the boundary of jurisdiction and executive power.In the last decade,the judicial reform of separation of judgment and execution in the execution remedy field has gain great success and the boundary between jurisdiction and executive power has become clearer through the modification of China Civil Procedure Law and the complement and perfection of the Supreme Court's judicial interpretation.The theoretical studies also contribute to the great success,but those theories still need further improvement.This chapter is divided into three sections.The first section is about separation of judgement and execution and the boundary between jurisdiction and executive power.The second section is mainly concerning about the evolution of separation of judgement and execution on the executive remedy field and the third is about the value of theoretical study on discuss the boundary of jurisdiction and executive power.Chapter ? is about the extraterritorial orientation of the power of civil adjudication in terms of the execution relief.This chapter specializes in the analysis on the system of execution relief regulated on compulsory enforcement law in Taiwan,South Korea and Japan.After thoroughly research of execution remedy of the above areas and focus mainly on how to conduct execution remedy on the basis of jurisdiction,in contrast with our legislation,the author concludes the merits of developed countries' (regions') legislation and practical experiences,in the purpose of drawing on experiences from abroad,improving legislation and theory about compulsory enforcement law in China and puttiing forward suggestions on judicial practice.This chapter is divided into four sections.The first section is about execution and its flaws and relief.Section ?,? & ? introduce the execution relief in Taiwan,Japan and Korean,respectively.Chapter ? is about the progress and deficiency of the system of execution relief in China and the perfection of the boundary of executive power and jurisdiction.Since 1980 s,we've made a lot of progress in our legislation and judicial interpretation.In the last decade,the judicial reform aimed at establishing substantive execution relief system,which have been offered more space by Supreme Court's judicial interpretations,has also gained noticeable achievement.Even though the system of execution relief has basically formed,insufficiency still exists.Further improvement and reform are still needed,among them,lawsuit of debtor disagreement and the creditors execute permissions lawsuit deserve more attention and a perfected execution remedy system is still highly demanded.This chapter is divided into two sections.The first section is about the progress and deficiency of regulations of execution relief in China.The second one is about the improvement space in the perfection of the boundary of executive power and jurisdiction.Chapter ? is about several questions of executive power and jurisdiction and the perfection of the definition of executive power and jurisdiction.The execution relief is the main factor that triggers the issue of jurisdiction and executive power.The discussion is mainly about the division or boundary of jurisdiction and executive power theoretically.However,there are several situations existing in our judicial practice for a long time: the main text of a civil judgment or an arbitration award is unclear and cannot be or is difficult to be enforced.Whether it is reasonable for executive agency to have exclusive power to change or add parties.How to deal with the unexecuted spouse in a case? Shall we exercise the executive power or jurisdiction? There are a variety of different views both in theoretic area and practice field and the issue still need further discussion.This chapter is divided into three sections.The first section is about execution relief when the main text of judgment document is unclear.The second one is about execution relief on alteration party occasions.The third one is about execution relief when the unexecuted spouse is involved.Conclusion...