On The Civil Implementation Power Character And It's Performance Mechanism

The civil implementation is a hot and difficult problem in the judicial reform and practice in our country. But the difficulty in the implementation of the civil has become an outstanding problem which has perplexed the people's courts and the creditors, and that has caused the extensive concern of the whole society, and to some extents that has affected the people's confidence in the whole law system. Under the condition of comparatively lagged-behind lawmaking of the civil implementation, unsatisfactory implementation theory and implementation environment, the theoretical sector and the practical sector have done a great deal of exploring and practical works and scored a lot of achievements in the aspects of implementation management mechanism, executive institution, the performance mechanism of civil case implementation power and the style of the civil implementation, etc. But all those cannot reverse the passive situation of the difficult implementation. In order to resolve the problem of the difficulty in implementation by the root, to make reform of the implementation work develop forward, it is necessary to properly fix the nature of the civil case implementation power and reasonably set up the implementation mechanism of the civil performance power.With the entry-into -force legal document as its proof and following the legal procedure, the civil implementation power is a power capacity to make use of the nation compulsive power to compulsively force the debtor to implement his due obligation so as to realize the fixed civil right. To expound and prove the nature of the civil implementation is the first and the most important theoretical research work in the reform of the implementation system. Just because of this, the nature of the civil implementation can be fixed as following: with the administrative power as its essence, the civil implementation has the dual natures of judicial and administrative powers. The theory of civil case implementation power is the theoretical foundation of the performance mechanism of the civil implementation. The civil performance power circulates the mechanism. Different departments and different personnel can carry out the implementation judge power and the execution implementation power, which are corresponding to the judicial power and the administrative power in the civil implementation power, respectively. The implementation judgment power should be examined and done by the executive judge. The executionimplementation power should be implementation of the civil compulsive measures. This kind of power-dividing performance mechanism starts from the dividing of the power, proceeds to the power restriction so as to make the civil implementation power fairer. With view to the performance mechanism of the civil implementation power in the countries of the two greatest law systems, the nature of civil implementation power is fixed as the position of dual nature of judicial power and administrative power and which the different bodies will exercise. The implementation implement power is exercised by the administrative organization; the court exercises the implementation judgment power. But the law systems in the Continent are different, in France, the executive judge carry out implementation judgment power, the executive official exercises the execution implementation power, and the procuratorate police, troops can also become the main force to carry out the implementation power. In Germany, besides the implementation judgment power, the court also possesses the execution implementation power. Comparing with the performance mechanism of the civil implementation power in the foreign countries, because of the reason of judicial principle, system and the economy level, there are a lot of disadvantages in our current performance mechanism of the civil implementation power. For instances: that the civil implementation power is too much concentrated, lacking the clarity and openness, free judgment power, without effective su...