Systematic Research On Civil Enforcement Relief System

The civil enforcement relief system refers to the systems and methods that are required to be protected in accordance with the law when the procedural or substantive rights of the parties or interested parties(outsiders)are violated due to illegal or improper enforcement.The civil enforcement relief system is an important system in the field of civil enforcement,but it is also a weak link in China's civil enforcement system.In recent years,with the implementation of illegal enforcement and improper enforcement,the issue of " random enforcement " has begun to enter the field of vision of the theoretical community,and defective executions in the form of illegal execution and improper execution have gradually attracted people's attention.Therefore,how to correct and relieve the implementation of behavior has become an important topic of concern in the theoretical and practical circles.People are increasingly aware that the implementation of the relief system is the basic solution to effectively solve the " random enforcement ",and it is an important way to effectively resolve the “ difficulties in implementation.” From the perspective of the systematization of the implementation of the relief system,this paper comprehensively applies the value analysis,comparative analysis and legal hermeneutic analysis methods,examines the basis of the enforcement of the relief system,and analyzes the functional mechanism of the implementation of the relief system,from the theoretical and practical dimensions.To explore the need to implement the systematization of the relief system,and to deeply analyze the function of implementing the system of relief system,so as to realize the construction and improvement of the enforcement relief system in China.On the objective side,the enforcement is rapid and timely,the judgment is formal,and the enforcement environment is constantly changing;on the subjective side,the executive power is easily abused.These factors often cause flawed enforcement in practice.It not only causes confusion in the execution process,but also damages the legitimate rights and interests of the parties and interested parties.Therefore,it is necessary to correct and regulate it from the institutional level.Therefore,on this basis,a relief system for illegal enforcement and improper enforcement is formed—the civil enforcement relief system.Although the enforcement relief is not a legislative expression in the Civil Procedure Law,it has long been a recognized theoretical concept.There are also many specific rules in the current civil procedure law and judicial interpretation.As an important mean of public remedy,the enforcement relief must not only have all the functions of the general public remedy system,but also satisfy the value pursuit of its multiple functional mission.The enforcement relief has the function of declaration of rights.It is not only a remedy for the rights and procedural rights of the parties involved and the outsiders,but also an institutional system that is often reflected in rights.The enforcement relief has the function of methods guaranteeing.This method manifests itself both in the control of private rightr over public power and in the checks and balances between public power.The enforcement relief has a balancing function.On the one hand,it is necessary to realize the balance between the rights of internal entities and the rights of procedures,and on the other hand,to achieve the balance between public and private rights.It can be said that the function of enforcement relief itself is the internal mechanism by which the system can be generated.The civil enforcement relief system is a comprehensive institutional system.It is a scientific norm system that accords with the principle of rights relief and power restriction.It is also a basic and complicated theoretical proposition.The systematization of civil enforcement relief system has the dual needs of theory and practice.In theory,the existing viewpoints on the enforcement relief system have theoretical flaws that are difficult to be self-consistent.There is still room for further discussion on the implementation of reinstatement into the system category of the enforcement relief.In practice,the practice of illegal execution and improper enforcement require a complete set of relief systems to achieve remedies for procedural and substantive rights.Therefore,it is of great theoretical and practical significance to focus on the systemization of the enforcement relief system.The systematization of the civil enforcement relief system has the function of strengthening the procedural guarantee.The system of civil enforcement relief system can provide multiple procedural safeguard methods for procedural violations,and the parties and interested parties can protect and relieve their procedural rights through a series of remedies.Furthermore,it ensures that the execution of the program runs smoothly according to law,and realizes the function and purpose of program justice.The systematization of the civil enforcement relief system also has the function of guaranteeing the integrity of the execution results in the entity.By balancing the entity justice and the efficiency of execution,the purpose of ensuring the legitimacy of the executing entity is achieved.Although efficiency is its primary value in the implementation process,we cannot ignore the pursuit of substantive legitimacy.The fact that the parties and the outsiders advocate the entity's rights and interests through the substantive relief system is an important part of balancing the efficiency of the entity and the efficiency of execution.It is the basic requirement for the legitimacy of the execution of the procedure and the natural path to achieve substantive justice.Starting from the internal function of the system of enforcement relief system,the system construction of the enforcement relief system in China should be carried out from two aspects: procedural execution relief system and substantive relief system.The procedural dispute in execution is based on the execution of the violation of the law by the enforcement agency,which causes violations of the procedural rights of the parties and stakeholders,so it is necessary to adopt procedural remedies.Correcting the illegal execution,and regulating the illegal execution is the key to realizing the protection and relief of procedural rights.The procedural rights relief system in China consists of three systems: applying for supervision and enforcement of the implementation of the court,enforcement of objections,and implementation of reconsideration.Applying to supervise the execution and change of the enforcement court is not a type of enforcement supervision system,which is a procedural implementation relief system in nature.Enforcement behavioral objection is a relief system specially set up for illegal execution.It is two systems that are in parallel with the implementation of the supervision system.For the execution supervision,the parties and interested parties may not raise an enforcement objection.Although negative enforcement is objectively an illegal execution,it should be preferred to apply for the application to urge the execution and change the enforcement court system when taking relief measures.If the parties or interested parties are dissatisfied with the ruling of the enforcement court,they may apply for reconsideration from the people's court at the next higher level.The reconsideration system is the continuation and deepening of the objection to enforcement,and is a remedy to the objection to implementation.The entity dispute in execution is not caused by the illegal execution of the executive agency.It is actually a result error under the premise of legal execution.The error of this result is caused by the improper execution of the entity,and the dispute involving the entity's rights and obligations must be resolved through litigation,so it is necessary to use litigation to correct the improper execution.In view of the diversified subjects existing in the practice,the substantive rights relief system should include the system of action of dissent of the outsider,the system of lawsuit of debtor dissidence and the system of suit for execution of license.However,as far as the current situation is concerned,there is only a substantive enforcement remedy system in China,which is the system of action of dissent of the outsider,and it is a special remedy lawsuit.After identifying the division of labor with other relief systems,the outsider should selectively apply the system of action of dissent of the outsider.Relief for the debtor's entity rights,although there are multiple paths in Chinese law,the objective functional defects determine that the various paths cannot effectively respond to the debtor's entity disputes.Dealing with an entity dispute by executing an objection deviates from its proper function of remedy for procedural rights,and it also violates the general principle of "trial separation".As a remedy for correcting wrong referees,retrial cannot solve the substantive issues which are not caused by the referee itself.The fundamental flaw in the separate prosecution is that the enforcement of the execution basis cannot be ruled out.The "absent" debtor objection in China is a new type of relief lawsuit in nature,the purpose of which is to exclude the enforcement power of the enforcement basis.Therefore,We should establish a debtor's objection system,and use the procedures of the debtor's objection to construct the entity's rights and interests.As for the system of enforcement of permission,this concept is derived from the provisions of the "Enforcement Law" in Taiwan,which originally means that the creditor has extended to the successor of the debtor as shown in the execution basis or other reasons for the expansion of the effect of the execution basis.Application for enforcement,after the enforcement court's ruling dismissed,the lawsuit filed against the enforcement debtor by the enforcement court.Although China has used this concept in theory,it has been qualitatively misunderstood because of its misleading rules.In fact,there is only a system of " objection to outsider objection " in China,which is not a real license.In order to respond to and meet the needs of judicial practice,it is necessary for China to construct a lawsuit for the enforcement of licenses.