The Deficiency And Reframe Of Our Civil Enforcement Relief System

The civil enforcement relief system is the important part of the civil enforcement legal system and the safeguard to vindicate the legal rights of the parties and to restrict the civil enforcement rights. However, the civil enforcement relief system is the most unsubstantial tache in our civil enforcement legal system, which is one of the fundamental reasons of the chaos of our enforcement. Currently, with the promotion of the Supreme People's Court, the amendment of the civil litigation law is undergoing in an orderly way to regulate the enforcement, advance the judicial equity and protect the legal rights of the parties, which indicates the reframe and improvement of the civil enforcement relief system has brought increasing attention from theory circle and judicial practice area. However, the reestablishment of the civil enforcement relief system has some deficient points such as the scope of the amendment, the type of the dissidence and the substantial relief. The enhancement of the building of the socialism democracy legal system urges us to establish and improve Chinese characteristic civil enforcement relief system. Combining the enforcement practice, the author sets forth the civil enforcement relief system superficially, expecting to provide some reference for the scholars and experts in the establishment or improvement of civil litigation law.The opening part introduces the importance of the rights, the civil enforcement relief system has brought great attention and entered litigation course. The research and litigation of the civil enforcement relief system still has some room to improve, which educes the aim and significance of this thesis.Chapter one discusses the basic theoretic problems of civil enforcement relief system, including the concept, character, function of the relief system and the classification, scope and method of civil enforcement relief. The civil enforcement relief can classify into broad sense and narrow sense, and this thesis refers to the latter, which means the way to protect one's right when suffering infringement from compelling enforcement. The civil enforcement relief has five natures, namely the nature of right, the nature of supervision, postmortem and subordinative. It also has three functions, namely protection, supervision and balance. The method the civil enforcement relief can classify into proceeding enforcement relief and substantial enforcement relief. Chapter two analyses the status quo of our civil enforcement relief system and discusses from practice and theory respectively. It also analyses the existing problems and their causes, which educing the conclusion that our active enforcement relief system has many deficiencies such as the lack of the proceeding relief, the scarcity of the relief method, the absence of the substantial relief system for the dissenting appeal from the debtor, etc.Chapter three is the research and reference of the overseas enforcement relief systems. It introduces and compares the civil enforcement relief systems of Germany, Japan, Switzerland and our Taiwan.Chapter four puts up with the legislative suggestions of our enforcement relief system for the future. It puts forward to remodel the basic principles of our enforcement relief system and gives some suggestions on the establishment of proceeding and substantial relief system, integrating the analysis of the nature of enforcement right, including the cause of the instituting appeal, the subject, jurisdiction and scope of the enforcement relief. The establishment of the substantial enforcement relief system consists of the dissenting appeal from the debtor, the dissenting appeal from the third party and the dissenting appeal from the creditor. This thesis also advances the improvement of the enforcement relief carrier-------the reframe of the enforcement institutions and the increase of the enforcement judgment courts.