Research On Comparation Of The Forcible Execution System Between The Mainland And Taiwan

The article gives a comprehensive,systematic and detailed comparison between and analysis on the forcible execution of the Mainland and that of the Taiwan Strait and the author also puts forward new ideas and opinions about the relevant theory and practice.Through analysis,the author thinks that the forcible execution institutions between the Mainland and the Taiwan Strait fundamentally are consistent and both of them inherit the tradition of civil law system,at the same time they have the characteristics of Chinese legal genealogy.But there are some differences and inconsistency on the concrete forcible execution procedure and manipulation means of the two forcible execution institutions.Chapter one analyzes the basic concept of civil forcible execution and mainly explains the nature and types of civil forcible execution,the difference between forcible execution claim and forcible execution powers, concept and nature of forcible execution contract,concept and solution of forcible execution concurrence.Chapter two analyzes the basic concept of forcible execution law, compares the two forcible execution institutions from the angle of legislation and mainly compares the different systems,basic principles, regulation of validity as well as the relationship with other laws.Basing on the analysis,the author points out that the Mainland's decision to enact an independent law on forcible execution is necessary and in line with objective law.Chapter three compares and analyzes the general provisions of forcible execution between the Mainland and the Taiwan Strait.First,the forcible execution organs of the two institutions have both similarity and difference.They are similar in that both are set up in courts and they are different in the internal organ and personnel components.This is closely related with the different theory research on forcible execution in the Mainland and Taiwan Strait.Second,there are obvious differences in the titles of parties and the procedure of changes of parties between the two institutions.Third,there is clear difference in the provisions of jurisdiction over the forcible execution between the two institutions.Provisions of the Mainland are more comprehensive than those of the Taiwan Strait.Fourth, there are different provisions of execution basis,validity,review of execution basis between the two institutions.Fifth,there are different provisions of starting reasons and starting means of execution,preparations for forcible execution and investigation into the financial situation of debtors between the two institutions.Moreover,this chapter also analyzes legislative and theoretical issues regarding impediment to execution, termination of execution,resumption of execution between the two institutions.Chapter four carries out systematic and comprehensive analysis on means of forcible execution,and this chapter focuses on the comparison of types and legislation of means of execution and analyzes the characteristic and categories of forcible execution.Chapter five compares different measures and procedures of pecuniary execution.Measures of execution provided in the Mainland include nine types,while those in the Taiwan Strait include six types.Provisions of the Taiwan Strait are clearer and easier to operate.Chapter six compares and analyzes delivery of the property and consummatory behavior between the two institutions and there are big differences between the two ones.Comparatively,provisions of the Taiwan strait are more comprehensive and the Mainland should take the provisions of the existing legal interpretation as well as other countries' experience into consideration when enacting the new law on forcible execution.Chapter seven analyzes the execution of attachment and advance execution between the two institutions.The attachment and advance execution of the Mainland are respectively called conservatory measures in litigation in the Taiwan Strait,and there are clearer provisions of execution procedure and measures in the Taiwan Strait.Chapter eight carries out comparative analysis on the remedies for and supervision over forcible execution between the two institutions.Provisions of the Mainland are relatively simple and thus causing many problems in practice,while the provisions of the Taiwan Strait are more detailed.Chapter nine carries out comparative analysis on execution by mandate,assist in execution and coordination of execution dispute between the two institutions.Comparatively,provisions of the Mainland are more comprehensive and this is helpful for the settlement of practical problems.Chapter ten is mainly about termination of execution in the two institutions.The reasons for termination of execution in the Mainland include completion of execution,ruling of terminating execution,ruling against execution and the completion of the execution of reconciliation agreement,and there are clear provisions of the time limit for the termination of execution in the Mainland.On the other hand,provisions of the Taiwan Strait are very simple.Chapter eleven carries out comparative analysis on the compulsory measures against impairment of execution between the two institutions. Provisions of the Mainland are very clear while those of the Taiwan Strait are less clear,but the two institutions are similar in practice in this aspect.In the concluding chapter of the article,the author put forward his own opinions to several issues existing in theory and practice both in the Mainland and in the Taiwan Strait.