Research On Civil Executive Relief

"Difficult to execute" is a problem, which is harassing the courts and the creditors. And the random execution derives from "difficult to execute" has intensified the difficulty of execution. Such a problem has affected people's trust to the civil executive system and the authoritative establishment of the state judicature. Since the current civil law in China hasn't regulated clear and detailed civil executive relief, it can't effect a radical cure of the random execution, neither is the "difficult to relief". Therefore, I choose this subject of "civil executive relief" to research.The body can be divided into three parts except for the preface and the tagThe first part mainly analyzes and researches the concept of civil executive relief together with its characteristics and factions. It aims at making a clear understanding and accurate orientation of civil executive relief and also giving the readers a foreshadowing to spread the following text.I think the concept of civil executive relief has both a broad sense and a narrow sense. The narrow sense of it a kind of law system, meaning that during the civil executive course, the executive party or the relevant person, whose legitimate rights are infringed or might be infringed by illegal or improper civil executive action of the executive mechanism, asks for legal protection and remediable measures taken by relevant mechanisms. This thesis only talks about civil executive relief in the narrow sense made up of four important pieces.As a law system, the civil executive relief can be understood from multi-points of view. There are three basic characteristics including the nature of rights, legality and duality. Executive relief is a sub-right, whose character is the relief right. It is the assurance for implementing the first right of the principal part. There are laws clearly regulating the ways to execute relief and approaches to implement, etc. the implementation of executive relief is a unification of the means of administration and judicature.Civil executive relief should become an important law system to maintain executing laws by force and safeguard the dignity of the entire civil laws, because it has three functions of protection, supervision and balance. Civil executive relief can protect the legitimate rights and interests of the executive party and the relevant persons of gains and losses, supervise the executive mechanism to implement according to the law and balance and harmonize the powers and rights among the executive mechanism, the party and the relevant persons of gains and losses.The second part chiefly uses the legislation experience, law regulation and theoretical researching achievements of relevant civil executive relief in Germany, Japan and Taiwan area of China for reference, integrates the executive practice and makes a further discussion by means of the method of civil executive relief in the basic theory of law. It aims at seeking for theoretical gist to establish and improve Chinese civil executive relief system and settling the foundation of spreading the following text.With regard to the procedural civil executive relief, I consider that the illegal or improper implementation is a kind of invading action, which is carried out by the executive mechanism. The party and the relevant person of gains and losses may adopt two corresponding ways of relief. They are making applications and asserting objections. In principle, the party and the relevant person of gains and losses may put forward any executive objection, which they regard, harmful to their legitimate rights and interests. But in order to prevent the party and the relevant person of gains and losses from abusing their objection right, it should be clearly indicate that they can't put forward the executive objection in such conditions: the abstract executive action, the administration of the interior personnel in executive mechanism and the law writs which have gone into effect. During the executive course, both the person being executed and the person...