On Internal Supervision In The Enforcement Authority

Difficulties in civil enforcement have long been a hard nut to crack in the judicial system. This situation partly stems from lack in enforcement standardization and unlawful behaviors of the enforcement authority. Consensus opinion has been reached that effective supervision over the enforcement power which stresses power balance and restriction is vital in changing the current situation in civil enforcement. As to the concrete construction of the supervision system, focus has mostly been pointed to the external supervision of the enforcement power whereas internal supervision in the enforcement authority basically arouses no attention. As a form of supervision of equal importance as the external one, internal supervision has its unique function. This paper reconsiders theories and practical functions of this internal supervision, aiming at raising a scheme in re-constructing a more reasonable internal supervision system.The body part of this paper (apart from the introduction and conclusion) consists of the following four parts.The first part is a survey of the internal supervision of enforcement authority. Based on the definition and composition analysis of enforcement supervision, four dimensions of internal supervision of enforcement authority are pointed out by author. It involves supervisor inner the enforcement authority as the subject, the enforcement behavior of the authority and its staff as the object, and the correction of improper/unlawful behavior as the effect. The supervision is characterized by four points: it is a power of legal prescription; the subject is from the inner authority; the subject is relatively independent; the object of supervision is widespread. Differences between internal supervision and executive relief are also made clear to give a all-around understanding of this concept. Lastly, the author indicates his view that intensified internal supervision of enforcement authority is critical in solving the enforcement difficulties, expounding this point in three aspects: judicial independence, enforcement justice and enforcement efficiency.The next part studies the practice of internal supervision in a comparative perspective. After a thorough description of this system in Germany, Japan, Russia and Taiwan China, the author concludes that the internal supervision system follows two common rules. First, this power is switched on mainly by the parties'application, and complementarily by official decision. Second, this internal supervision takes in forms in the supervision of administrative supervisor over the enforcement faculty, of executing judge over the executor, and of the superior court over the enforcing court, composing a multi-level and three-dimensional system of supervision.The third part of this paper deliberates the current situation of internal supervision in China. The author studies the relevant legal provisions and draws a pre-digested pattern of this system with four parts: supervision from the enforcement organ, supervision inner the enforcement court, supervision from the superior court and the accountability system afterwards. Major drawbacks with the current system are also analyzed, including the disorderly separation of enforcement power, the multi-headed distribution of the supervising power, and the administrative-alike mode of the supervision from the superior court, and lastly, the irrationality of the accountability system. The last part of the body draws a re-construction blueprint of the internal supervision system of enforcement authority. The guideline is to emphasize the principle of legal prescription and standardization of the supervision procedure, and to protect the parties'participation right. Principles must be established in the launching-process, in classification of supervision and priority supervision. As to supervision over the power of enforcement implementation, supervision from the power of enforcement adjudication and inner the administrative body should be of strong effects. To set up an all-around supervision system including that from the superior court, adopting motion against the enforcement rulings is also included in the author's suggestion. Last but not least, a proper accountability system in accordance with the profession traits of the judges and enforcement faculties should equally prompts the efficiency of this internal supervision system.