Research On System Dealing With Unspecific Execution Credential

To be clear and specific is essential for an execution credential,and it is also the basis for the realization of creditor’s rights through enforcement.Based on the requirement of separation of judicial power and enforcement power,the enforcement bureau only takes the execution credential as the basic for enforcement.If the execution credential is not clear or specific,the legitimacy of the enforcement procedure cannot be guaranteed.Unspecific execution credential is objectively difficult to completely avoid.Therefore,how to system deal with it is important.However,the research is not yet enough.First,there are different understandings of what is unspecific execution credential.Secondly,the review mode with unspecific execution credential is unclear,resulting in many cases with unspecific execution credential starting the enforcement procedure,which affects the legitimacy of the enforcement.Finally,the methods of clarifying unspecific execution credential are limited.Based on the principle of formalization of enforcement,the power of the enforcement bureau is excessively limited.The methods that are using in clarifying will bring about difficulties in its application.To system deal with unspecific execution credential,we should first identify what is unspecific execution credential.On the basis of that,try to construct a dealing system which contain reviewing,clarifying and remedying phases.The first chapter is to clarify the concept of the unspecific execution credential and the jurisprudence to deal with it.Unspecific execution credential refers to the situation in which the execution credential does not have enforcement power or has limited enforcement power due to the unclear or unspecific,thereby affecting the start or promotion of enforcement procedure.There are two types of unspecific execution credential: one is that the content of the execution credential itself is not clear;the second is that it is unsure whether the conditions of enforcement have been met.In the process of review,clarification and relief when the execution credential is unclear,there are the right to initiate the enforcement procedure,the right to clarify the execution credential,and the judicial power to execute the relief.Considering the possibility of the enforcement bureau resolving disputes with unspecific execution credential is needed,rather than asking the judicial department for resolution,can maximize the protection of the procedural rights of the parties without excessively detracting from the efficiency of the enforcement procedure.The second chapter is about China’s current situation in dealing with unspecific execution credential.In terms of legal norms,there are three shortcomings.First,dismissing the application of unspecific execution credential enforcement does not provide sufficient protection for creditors.Second,the clarification method is too simple,cannot effectively deal with various situations in practice,especially the lack of a clarification path for cases where it is unclear whether the conditions of enforcement is achieved.Third,correction of the credential is obviously limited.It is only applicable to cases where the execution credential is unclear due to errors or omissions in the text.In terms of practice,there are four shortcomings.First,the case filing tribunal failed in the execution of its duty for reviewing,starting the enforcement of cases with unspecific execution credential be started to the enforcement procedure,which not only increases the review burden of the enforcement bureau,but also affects the legitimacy of the enforcement.Secondly,the methods that are using in clarifying will bring about difficulties in its application,which the requirement of due process maybe violated.The third is that the power of the enforcement bureau on clarifying is excessively limited,causing the procedure wasteful and inefficient.Fourth,the trial supervision is used as a general relief path with unspecific execution credential,which has an impact on res judgment.The above problems are mainly caused by the lack of connection among case filing tribunal,civil adjudication tribunal and enforcement bureau;the contradictions of judicial interpretation;misunderstanding of the principle of formalization of enforcement,and the long-term deviation of judicial practice.The third chapter is about the review mode with unspecific execution credential.This chapter mainly concerns about the legitimacy of the initiation of execution procedures,and prevents cases with unspecific execution credential from execution procedures.Under the current review mode in our country,the review capacity of the case filing tribunal is relatively weak,and the enforcement bureau reviews only after the enforcement procedure has been initiated while the parties raising a dispute.In order to ensure the legitimacy of the enforcement,it is necessary to review on its own initiative,whether the execution credential is clear and specific before the enforcement is started.There are mainly two review modes in other countries,namely,the execution writ system and the granting execution system.It is not suitable for us to introduce the execution writ system,and there is a certain difference between the granting enforcement system and us.What we need is a review mode in which the case filing tribunal and the enforcement bureau cooperate.The case filing tribunal makes a preliminary judgment on the matters that are easy to find out,and then the enforcement bureau further examines whether the execution credential is clear and specific,and decides whether the execution credential needs to be clarified.In this way,the division of work between the case filing tribunal and the execution bureau is clarified to prevent the reduction of efficiency and waste of resources caused by repeated review.Also guarantee the legitimacy of the execution.The fourth chapter is about how to clarify the unspecific execution credential.Based on the principle of separation of judicial power and enforcement power,the execution bureau in our country is considered have no right to clarify,and the issues involved need to be handled by the civil adjudication tribunal.However,whether it is in Germany,Japan or Chinese Taiwan district,the execution bureau has the right to clarify the execution credential within a certain range,or to find out whether the conditions of enforcement have been achieved.In our country,the judges of the execution bureau have the ability to clarifying the execution credential.Based on the principle of formalization of enforcement,there are certain restrictions on the scope of clarification,the method of investigation,and the effectiveness of the conclusion.As for the scope of permissible clarification,the execution bureau can only clarify the method of realizing rights,the execution bureau cannot decide whether the creditor’s right exist or not.As for the method of investigation,it should be considered that the execution bureau can use documentary evidence and the judge’s opinion,and may also question the parties,expert evaluation,inspection,and organize hearings when necessary.The clarification of the execution bureau is only used as the basis for risk allocation to decide whether to initiate or continue the execution,and has no res judicata.The fifth chapter is about the way to remedy.If the parties are dissatisfied with the clarification,they can seek for remedy.In China,Taiwan,there is a dispute as to whether the conditions of enforcement are fulfilled as a substantial issue or a procedural issue.Most of time,the debtor can only raise an objection,a lawsuit against the execution is not allowed.In Germany and Japan,it is allowed raise an objection,as well as bring a lawsuit against the execution.Taking this as a reference,substantial remedies and procedural remedies should be used in our country.Supplementary judgement which had been stipulated in our country in1984 can be used when the execution bureau cannot clarify the unspecific execution credential.Debtor dissidence lawsuit can be instituted when the execution is illegal.At the same time,the creditor can institute licensing executive lawsuit against the debtor.In the case where the remedies overlap,it is advisable for the parties to choose the way,and substantial remedies can still be provided after the procedural remedies.In order to avoid contradictory judgments and repeated executions,ordinary lawsuits should be referred to the court which another lawsuit is in.