Study On Civil Indirect Enforcement System

In addition to direct enforcement methods such as seizures and auctions,the current legislation also provides various indirect enforcement methods such as the list of untrustworthy persons subject to enforcement.The research on civil enforcement theory does not pay attention to the basic theory of the civil indirect enforcement system;the indirect enforcement methods stipulated in the civil enforcement legislation are also independent of each other,and there is a lack of connection between each other,so that the effect of civil indirect enforcement is unsatisfactory.In order to cooperate with the legislative work of the Civil Enforcement Law,it is indeed necessary to carry out theoretical research on civil indirect enforcement,and to construct a civil indirect enforcement system according to the hierarchical structure of "economic sanctions-behavioral restrictions-personal restrictions" in various indirect enforcement methods system.Based on the efficiency principle of civil execution,combined with the characteristics of civil indirect enforcement,a simple and efficient system operation mechanism is in need to ensure the smooth operation of the civil indirect enforcement system.The main body of this article is about 210,000 words,and it is divided into five chapters in addition to the introduction and the conclusion.Chapter One mainly discusses the basic theory of civil indirect enforcement.The realization of the purpose of civil enforcement requires corresponding organizational guarantees,material guarantees and institutional safeguards.The indirect civil enforcement system can impose various disadvantageous factors on the debtor to prompt them to automatically perform their obligations and efficiently achieve the purpose of civil enforcement.Indirect civil enforcement in the traditional sense does not accurately define its scope of application,so its definition is slightly rough.It is necessary to proceed from the supplementary principle of indirect civil enforcement,combining with the reality of practically solving the "difficulty in enforcement",to scientifically define the system of indirect civil enforcement.On this basis,according to the characteristics of various specific measures of civil indirect enforcement,civil indirect enforcement can be divided into three types: economic sanctions,behavioral restrictions and personal restrictions.The legitimacy of the civil indirect enforcement system comes from the principle of "actual performance" of civil substantive law;through the combing of the obligation form system,the legitimacy of the civil indirect enforcement system can also be demonstrated from the legal philosophy sense.Using the law and economics analysis paradigm,the effectiveness of the civil indirect enforcement system can be demonstrated through the "deterrence hypothesis".Judging from the historical development of civil indirect enforcement,modern society has abandoned harsh personal enforcement methods,but still needs to retain the civil indirect enforcement system with deterrent function.Chapter Two specifically discusses Economic sanction measure.The mechanism of economic sanction measure is to increase the implementation of non-monetary payment of debts by exerting economic pressure on debtors,and to compensate creditors for their losses.The positioning of the current delayed performance payment system is not clear,the fine system is too broad in scope,and both lack corresponding procedural rules.Extraterritorial economic sanctions systems can be divided into two types: compensation and punishment.Experiences that can be used for reference include determining the compensatory principles of the economic sanctions system,improving operating procedures,etc.The existing legislation draft has problems such as inaccurate system positioning and poor operability.It is necessary to abolish the current fine system and improve the delayed performance payment system on the basis of determining the compensatory principle of the economic sanctions system.Chapter Third specifically discusses the behavior restriction measure.The behavior restriction measure has stronger deterrence than the economic sanction measure.On the one hand,it has the function of preserving the responsible property of the debtor.On the other hand,it can exert psychological pressure on the debtor through the social credit system,thereby prompting the debtor to automatically perform its obligations.Many current behavior restriction systems in our country are derived from the summary of judicial practice experience,related theoretical research needs to be strengthened,and the lack of reasonable connection between specific measures,so that the judicial practice operation fails to achieve the expected results.Combined with the experience of extraterritorial legislation,the civil enforcement law can add a residence restriction system on the basis of the original list of dishonest executee,the consumption restriction and exit restriction system.According to factors such as the nature of the subject of enforcement,the circumstances and consequences of the debtor’s behavior,the corresponding behavior restriction measures of the debtor’s department are imposed,through all-round restrictions on the debtor,to prompt the debtor to consciously perform its obligations and realize the rights of the creditor.Chapter Fourth specifically discusses personal restriction measure.The personal restriction measure is the last line of defense to guarantee civil enforcement.It restrains the debtor’s freedom of will by restricting the debtor’s personal freedom and compels the debtor to perform its obligations.The current detention and crime of refusal to proform judgments and convictions have the function of personal restriction,but the time limit of the detention is too short,the scope of application of the crime of refusal to perform the judgment and the conviction is too narrow,and it is not yet sufficient to deterrence the debtor.In judicial practice,there is a tendency of alienation of detention and the falsification of crime of refusal to perform the judgment and convictions,which fail to realize the functions of the system and eliminate the deterrent effect of personal restrictions on debtors.It is necessary to learn from the experience of extraterritorial legislation,reasonably determine the period of personal restriction,scientifically define the types of behaviors applicable to personal restriction,and strengthen the procedural rules of personal restriction,so that the detention system can be reasonably connected with the crime of refusal to perform judgments and convictions,and effectively restrict the debtor’s non-fulfillment of obligations.Chapter Fifth specifically discusses the operation mechanism of civil indirect enforcement.There are no matching procedural rules in the current civil indirect enforcement system,and judicial practice shows a strong authoritarianism.Extraterritorial legislation abides by the principle of party doctrine,and establishes a sound procedural structure on the basis of guaranteeing the party’s right to participate in procedures.The civil enforcement law should establish the principle of party doctrine and give the enforcement judge the right to decide on civil indirect enforcement measures.Indirect civil enforcement does not require cumbersome trial procedures,and simple hearing procedures are sufficient to protect the parties’ right to participate in the procedure.In addition,reasonable early termination rules and relief rules should be set up to ensure the smooth operation of the procedures.Based on factors such as the efficiency value of civil enforcement,the inherent "evidence partiality" situation in the enforcement procedure,and the combination of foreign legislation and judicial practice experience,the "Glaubhaftmachung" standard should be applied to the determination of the corresponding facts of civil indirect enforcement.As a special witness,the testimony of the executor on the corresponding facts of the execution procedure shall be adopted.