Study On Power Of Adjudication Of Civil Execution

The concept of power of adjudication of civil execution originates from theory of separation of powers of civil execution power. In recent years, the study concerning execution theories in our country focuses on the nature of power of adjudication, its contents of power s and other relevant theories concerning power of adjudication of civil execution. The main purpose of proposing theory of power of adjudication of civil execution is to scientifically allocate power of civil execution and finally resolve the persistent problem that the execution is difficult to carry on and that it is disordered. These problems do great harm to authority of national jurisdiction and system of honesty and trust in the society and they have a negative influence on social order and economic development. Therefore, theory of separation of powers of power of civil execution is significant to social development of our country. This paper chooses power of adjudication of execution in theory of separation of powers of power of execution as the subject of study. It focuses on discussion concerning theoretic foundation of power of adjudication of civil execution. Based on comparative analysis of every theory of separation of powers, it carries out research on basic theories of definition, nature and contents of power of adjudication of civil execution and proposes ideas for the construction of operational procedure of power of adjudication of civil execution in our country. Besides introduction and conclusion, there are three chapters in this paper. Chapter I Definition, features and nature of power of adjudication of civil execution Definition of power of adjudication of civil execution originates from theory of separation of powers of power of civil execution. This paper first analyzes the theoretic foundation of power of adjudication of civil execution—theory of separation of powers of power of civil execution. Theory of separation of powers of power of civil execution is based on particular cognition of civil execution and power of civil execution. Therefore, this paper begins with analysis of civil execution and power of civil execution and analyzes theory of separation of powers of power of civil execution. Civil execution refers to the procedure that national authorities force the debtor to assume liability in order to realize private power of the creditor though national public power according to name of execution. Civil execution, criminal execution and administrative execution consist of compulsory execution system. Power of civil execution refers to the power that the national executive authorities force obligator to assume civil liability and realize civil power of obligee. Separation of powers of power of civil execution is for the purpose of inter-restraining powers and allocating person to carry out powers according to property of powers. Methods of separation of powers of power of civil execution are binary method, triple method and quadruple method. The binary method is generally accepted at present. Theory of binary method of power of civil execution refers to that power of civil execution is divided into power of enforcement of civil execution and power of adjudication of civil execution according to property of powers. Judicial features of power of adjudication of civil execution are passivity, neutrality, stability and so on. Its nature is judicial power. Features of power of enforcement of civil execution are explicitness, activity, imperativeness and so on. Its nature is administrative power. Based on above-mentioned theory of separation of powers of power of civil execution, this paper defines power of adjudication of execution. Power of adjudication of execution refers to the powers that adjudication executive authorities, in accordance with law, decide to execute major issues in enforcement by national public power, judge disputes in execution and force debtor to assume legal obligation in order to realize creditor's powers. Power of adjudication of civil execution shall be carried out by the court in terms of learning foreign experience or nature of the power. It mainly decides to execute major issues in enforcement, resolves disputes in execution and finally forces debtor to assume legal obligation. There are connections and differences between power of adjudication of civil execution and power of civil judgment. Generally speaking, their relationship is that the formercontains the latter and the latter contains the former. As for judicial nature of power of adjudication of civil execution, this paper evaluates and analyzes it based on theory of judicial power, then proves and defines the judicial nature of power of adjudication of civil execution. Chapter II Functions, value orientation and main contents of power of adjudication of civil execution Functions of power of adjudication of execution are: command and restrict the operation of power of enforcement of civil execution; guarantee legal rights and interest of the party concerned and people not involve in the case not to be infringed; safeguard legal authority; insure social stability and facilitate social development. Value orientation of power of adjudication of execution is to insure executive justice, be helpful for improving executive efficiency and dealing with the relationship between executive justice and executive efficiency. As for contents of power of adjudication of civil execution, this paper defines it in aspect of taxonomy of powers of adjudication of civil execution. It first introduces two kinds of theories of taxonomy, that is, time taxonomy and nature taxonomy, then evaluates and analyzes these two. This paper considers that power of adjudication of civil execution shall adjudicate whether issues posses elements of litigation and be classified as power of adjudication of civil execution with nature of litigation and power of adjudication of civil execution with nature of non-litigation. The former refers to power of adjudication of dissent litigation, which can be classified into dissent litigation of the third party and dissent litigation of the debtor. The latter refers includes power of determining executive force, power of deciding to adopt executive measures of punishments, power of determining compulsory and executive measures concerning personal right and right of freedom and power of adjudication of procedural dissent in execution. Chapter III Construction of operational procedures of power of adjudication of civil execution Operational procedures of power of adjudication of civil execution refers to procedures that adjudication executive authorities, according to certain principle, make judgment, decision and command for issues that needto be adjudicated according to judicial procedures in the process of civil execution. The main framework of operational procedures of power of adjudication of civil execution mainly includes: subject, principle and jurisdiction of operational procedures of power of adjudication of civil execution. The subject of operational procedures of power of adjudication of civil execution includes adjudication authorities of civil execution and the parties concerned in operational procedures of power of adjudication of civil execution. Adjudication authorities of civil execution shall be specialized adjudication authorities of civil execution in the court and can be called court of adjudication of civil execution. The parties concerned in operational procedures of power of adjudication of civil execution include: 1. person who applies for executing the case and person who is executed; 2. person who is not involved in the case and insists on execution of entity right for the target of execution; 3. person who is not involved in the case, but mortified and supplemented as person who applies for executing the case and person who is executed; 4. the third party who is in due creditors'rights with executive person; 5. other creditors who request to participating in distribution; 6. person who is investigated with legal liability due to impairing civil litigation and assists in carrying out obligations. Principles of operational procedures of power of adjudication of civil execution are principles of justice, publicity, legality and rationality. Operational procedures of power of adjudication of civil execution are in jurisdiction of the court that executes power of enforcement. Operational procedures of power of adjudication of civil execution with nature of non-litigation shall be applied to start up by executive enforcement authorities or the party concerned. Executive adjudication authorities shall, in accordance with law, form collegiate bench to examine it and make adjudication or command. Both executive enforcement authorities and the party concerned in operational procedures of power of adjudication of civil execution have the right of applying to the upper court for reconsideration and the upper court must accept it. Operational procedures of power of adjudication of civil execution with nature of litigation can be applied to start up by debtor or person not involvedin the case according to particulars prescribed in laws and he or she can propose corresponding request of litigation. The trial of operational procedures of power of adjudication of civil execution with nature of litigation shall be carried out in accordance with general civil procedures and judged by court of adjudication of civil execution.