Research On The Remedy Mechanism Of Unspecific Civil Execution Basis

In the case that the existing judicial practice problems cannot be reasonably solved by the currently effective laws and rules,the construction of a normative mechanism is a relatively rational and appropriate choice.The issue of unspecific civil enforcement basis is just like this.In the context of the Supreme People's Court's proposal to establish a mechanism for dealing with unspecific civil enforcement content of effective legal documents,it is a good choice to construct a remedy mechanism that is conducive to protecting the rights and interests of the parties for dealing with the issue of unspecific civil enforcement basis.Enforcement is the final path to achieve private rights' remedy,and the specific content of enforcement basis is an indispensable element for the substantive rights carried by effective legal documents to be transformed into reality through enforcement procedures.In fact,Article 18,Paragraph 1,Item 4 of the Regulations on Enforcement Work of the People's Courts and Article 463 of the Interpretation of the Civil Procedure Law has clearly set specific requirements for the content of the enforcement basis.However,the problem of unclear enforcement basis is still common in practice whose specific forms can be divided into unspecific leistung content,unspecific subject of rights and obligations,unspecific non-leistung content and other special circumstances.Although the executive judges try to deal with this problem by soliciting opinions from the judge who make the enforcement basis,organizing consultations between the parties,performing hearings and giving parties the rights to apply for objections,reconsideration,appeals,the actual effect is not ideal.Through analysis,it is found that the remedy against unspecific civil enforcement basis mainly has the following problems: the identification of the remedy object is unreasonable,the remedy behavior is in anomie,and the remedy channels are blocked.There are three main reasons.Firstly,legislation,theoretical research and judicial practice failed to reach a consensus on "unspecific enforcement basis";Secondly,there is a lack of necessary theoretical and normative guidance for the operation of remedy procedures on unspecific enforcement basis;Thirdly,the remedy measures currently tried out have their own shortcomings.In order to get rid of the real chaos of the remedy of unspecific enforcement basis,it is imperative to construct a remedy mechanism.First of all,it is proposed that the construction of the mechanism should follow the concepts of rights-based,source governance,and pluralism.Then it is suggested that the specific content of the construction of the remedy mechanism for the unspecific content of the civil enforcement basis should be proposed from the three levels of procedural remedy,substantive remedy and "supplementary" remedy: The ruling supplement and correction mechanism,the enforcement objection system,the enforcement reconsideration system,and the ruling non-enforcement system can be used as procedural remedy mechanisms;Introduce the "correction of facts" and the "addition of judgements" in German law,and the litigation system of permitting enforcement in Chinese Taiwan,and use them together with civil trial supervision procedures as a substantive remedy mechanism;Regard enforcement reconciliation system and the state compensation system as a "supplementary" remedy mechanism.Furthermore,take the stage of formation of the main text of the legal document as the "source" of remedy.Give the review power with the court's enforcement bureau,take the main text of the judgment as the target,fully consider whether the applicant and its application items fit the content of the main text,and whether the content of the main text itself is enforceable.Combine with the basic elements of the content of the civil enforcement basis to establish the criteria for the determination of "unspecific content".Give enforcement parties the right to seek remedy,and exercise necessary supervision over judges' remedy activities.