| Execution writ,legislated by civil law countries which pursue the judgment-and-execution apartment principle like Germany,Japan,and Korea,is a system that the special organ can censor the effectiveness and the execution of enforcement basis.In the institution of the judgment-and-execution apartment,the judicial organ is in charge of making sure about the relationship of rights and obligations between creditors and debtors,and the executive organ is in charge of making sure our rights can be realized uninterruptedly and timely through the protection of the state coercive power.However,the executive organ carries out enforcement procedure just by virtue of enforcement basis,and this may lead to undue or delayed enforcement when it is difficult to judge whether enforcement basis exists.Therefore,the special organ is established to censor enforcement basis' s execution,and legally decide whether to deliver execution writs,and the creditors can apply for to be carried out compulsively after receiving execution writs.Meanwhile,censoring enforcement basis' s execution might refer to substantive problems.Letting the independent execution writ procedure determine the content of execution,can not only guarantee the justification and efficiency of enforcement,but also avoid the violation of judgment-and-execution apartment principle when the executive organ censors elements of substantive justification.By this two-part structure i.e.enforcement basis and execution writ procedure,we can achieve two things: the former protects the enforcement between creditors and debtors,and the latter guarantees the execution of enforcement basis,so execution writ system has become a bridge between judicial procedure and executive procedure.The research of execution writ system helps solve many problems in the executive procedure from macro and micro perspectives.The body of the full text has 200 thousand words approximately.In addition to the introduction,this thesis is composed of 5 chapters:The first chapter is,the theoretical dimension of the executive writ system.The executive writ system which focuses on executive writ,is a sum which contains stipulations from censoring and delivering executive writs to procedure and substantive qualifications of the executive writ system and all-around protections between creditors and debtors.From the perspective of historical development,the executive writ system is a production of the judgment-and-execution apartment principle,and it was developed and perfected by many countries in lengthy historical course in order to adapt the update of procedural theory and theneeds of practice.Now,executive writ not only solves the problem of the demonstration of the enforcement basis' s execution under the judgment-and-execution apartment system,but also supplements enforcement basis in the case of its execution being restricted,changes enforcement basis in the case of its execution being expanded,and prevents and remedies undue enforcement.The functional expansion in the executive writ system not only helps creditors realize maximum benefit in executive procedure,but also operates the executive procedure efficiently and rapidly,meanwhile,provides complete procedural protection to legitimacy of the realization of rights.The second chapter is,the procedure of delivering execution writ.Taking the legislation and practice in Germany,Japan and Korea as the main objects of investigation from the perspective of comparative law,this chapter divides the procedure of delivering execution writ into common delivery procedure and special delivery procedure.In terms of the former,the organ that delivers the writs only has to censor the general elements of delivering execution writs according to enforcement basis.However,the latter requires creditors to provide corresponding testimonial material to prove the maturity of conditions or the existence of the derivative fact etc.And it also requires to be censored by the delivery organ that is regulated in particular.The enforcement basis can not only be notarized but also be changed and supplemented by delivering special execution writs.The executive organ only has to enforce according to the original copy of the enforcement basis included the execution writ,which greatly promotes the simplicity and rapidity of the start of the subsequent executive procedure.This chapter teases out and analyses effect and range of the execution writ,and legal provisions,academic disputes and operational state in common delivery procedure and special delivery procedure in each country.In addition,this chapter explores the deep understanding of the execution writ system in order to finally make it valuable to our country.The third chapter is,the remedy system of the execution writ system.The execution system takes full account of a situation that in the censorship and judgment process of execution writ delivery,the omission of the delivery organ and the limit of the procedure setting will be highly possible to leave the legitimate interests of the creditors,debtors and person not involved in the case unrealized or violated.Therefore,the execution writ system which pursues efficiency also sets rigorous and effective remedy system so as to guarantee the justification of procedure and substance in the meantime.From the point of justification,law should protect the interests of creditors and debtors simultaneously.With regard to creditors,they can raise anobjection about the punishment of refusing to deliver the execution writ to get remedy in the common procedure;they can also get remedy by initiating the legal proceeding of delivering execution writ when legal requirements can not be proved in the special procedure.Meanwhile,the interests of debtors can also get procedure guarantee because they can raise an objection if they are unconvinced in the common procedure and initiate objection litigation of delivery execution writ in the special procedure to get remedy.The objection procedure which generally is not involved substantial elements mainly solves the problem of disobeying the procedural elements of the delivery execution writ;as for disobeying the decision of the special delivery execution writ that involves substantial elements,it provides judicial proceedings.So the remedy system of the execution writ system includes four types of remedy methods,i.e.the objection to refusing to deliver execution writ from creditors,the objection to delivering execution writ from the debtors,the litigation of delivering execution writ initiated by creditors and the litigation of objecting to execution writ initiated by debtors.The forth chapter is,the relationship between executive writ litigation and action of objection of debtor.After issuing the executive basis,the litigation with the intention of eliminating enforcement,not only includes the litigation of execution writ's delivery and the litigation of the objection of execution writ's delivery.In the execution remedy system,there are another two ways i.e.action of objection of debtor and litigation of objection of the third party we can use to eliminate enforcement.All these four litigations mentioned above can be called execute relationship litigations.Especially,the litigation of objection of debtors and two litigations of executive writs,which exists obvious boundaries,similarities and controversial blurred zone.In the litigation of execution writ's delivery,whether the defendant can make objections which is related to substantive claims(cause of objection in request)in the execution basis as a defense method?And,are the litigation of the objection of execution writ's delivery and action of objection of debtor independent?Or are they the same litigation essentially which happened in particular time between particular parties and based on certain executive basis for the purpose of eliminating enforcement? Or is the litigation of the objection of execution writ's delivery only one form of action of objection of debtor ?There are debates both in theory and cases,so this chapter details the issues mentioned above.The fifth chapter is,the construction of executive writ system in China.Firstly,from the study of the executive writ system of Germany,Japan and Korea,the premise of setting the system is that the judgment and execution must be separated.Currently,with the rise of thenumber of executive cases in China,many problems in juridical practice are getting worse,such as difficult,chaotic and inefficient in execution.One of the important reasons that leads to chaotic phenomena in execution in China is that the judgment and execution is not fully separated.The basic function of the executive writ system is to joint the judicial procedure and executive procedure after they are separated.If there is no premise of the judgment-and-execution apartment,the executive writ system will be lack of the soil to survive.The enforcement has not yet been legislated independently,and the power of judgment and execution is not completely separated and the enforcement of jurisdiction and the power of execution is not completely separated.And those problems mentioned above show that we have to continue deepening the reform of judgment-and-execution apartment and truly realize the separation and clarity of function of the judicial organ and the executive organ,in order to provide the foundation of setting executive writ system in China.Secondly,regarding the censorship of execution of executive basis,there are mainly two ways i.e.the execution writ mode and the execute permission mode in civil law system.And there are lots of similarities between those modes in many aspects,such as the censorship of execution elements and the remedy system of rights etc.For instance,proposed censorship procedure is set to censor the executive elements before the start of execution,especially when it involves substantial elements like qualification of litigants,and form of action is set to remedy disputes in this period.However,there are significant differences in these modes,from the setting of executive organ and the allocation of executive power in macro to the design of each system in micro.Comparing these two modes,execution writ mode accords with present executive situation in China and the reform direction of deepening the judgment-and-execution apartment greatly.In addition,from the perspective of optimizing the allocation of executive power,perfecting the start of execution,achieving procedural legitimacy when execution expands and providing procedural guarantee when the execution of executive basis is limited etc,combining with the realistic demands of current staffing reform in China,the procedural function of execution writ system is extremely significant and highly valuable to the improvement of the execution legislation of our country.Finally,based on the premise of the judgment-and-execution apartment,China should refer to foreign experience in order to establish execution writ system which is suitable for our national condition.In the case of the range of delivering execution writ,general execution basis belongs to this range,but the payment order and the judgment of the small claims areexceptions.In regard to the organ of delivering execution writs,the people's court of first instance should be the delivery organ of executive writs in principle.Besides,according to complexity of the cases,executive writs can be divided into ordinary execution writs and special execution writs,and both are supplemented with different censorship procedures.For different censorship results,creditors or debtors in execution may express dissatisfaction by ways of objection and litigation of execution writs.The objection is a general remedy channel for the execution writ's delivery in order to safeguard procedural benefits of the execution parties.Litigation of execution writ's delivery and the objection of execution writ's delivery are the remedies for the special execution writs involved substantive judgments.It not only balances the interests protection of creditors and debtors,but also provides a double remedy of procedure and substance. |
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