On The Defects And Perfection Of The Execution Reconciliation In China

The execution reconciliation is a significant system of civil enforcing domain in our country. It can rapidly solve disputes between litigants, ensure to realize litigants'rights and interests, therefore, it becomes one powerful method of solutions to"difficult execution". Because it lacks the conciliatory fundamental research in our country, it also lacks the correlative fundamental research and the experience to learn from abroad, there exist many questions in legislation; therefore, functions of this system cannot effectively be displayed in the judicial practice. It is extremely essential to theoretically analyze the nature of civil execution reconciliation, the potency and the disputes relief procedure and so on, it will be beneficial to consummate the conciliatory system in legislation.This article first embarks from several typical cases, discloses the existing problems of execution reconciliation system in judicial practice. Regarding the nature of execution reconciliation, the legal effect, the relationship between the execution settlement agreements and the effect of the original decision, the courts'function in execution reconciliation and so on, many debates and the inconsistent procedures appeared because it lacks the theory support as well as the legal rule defect in the judicial practice. Next, the article analyses the legal principle theory of law upon the proposed problems, evaluates several kind of mainstreams academic viewpoints and proposes own viewpoints in order to seek the reasonable consistent theory strut of the conciliatory system. The nature of execution reconciliation is outside the lawsuit reconciliation, its potency not only has changed entity right and duty relations between litigants, but also has manifested legal effect in the procedural law; However, the execution reconciliation has not denied the effect of original decision, the two potencies do not belong to the identical position and step, therefore, they cannot be compared to each other. The execution reconciliation must be achieved upon the foundation of acknowledging the effect of original decision. Finally, upon the foundation of analysis in the legal principle theory, the article proposes the conception of consummating civil execution reconciliation system of our country, the establishment of legal status of execution reconciliation civil contract, and constructing the possibly suing mechanism of the execution reconciliation disputes. This will be the next inevitable trend of system reform in the view of the present judicature practice.