Inquire Into The Enforcement Hearing Of Our Country

The enforcement hearing opened a new way that rights restricted the power and it impelled the judicial civilization progress. 2001 onwards, in line with the reform and regulation of enforcement , a number of operational norms about the hearing review of enforcement has been issued by some local courts .The enforcement hearing has lasted several years and achieved preliminary anticipated effect. However, we could not deny that the enforcement hearing was newborn, the practice of misconduct could not be avoided. Because of different understanding on the enforcement hearing, some courts did not take full advantage of it, even abused it in judicial practice. This would not favor the sound development of the system. Therefore, it was an essential work to study the fact foundation and the legal principle of the enforcement hearing, then to make full use of the system in order to make it last and develop. This paper attempted to explore the nature and function of the enforcement hearing from its born background, the practice situation, the historical origin and theoretical basis.The author believed the civil enforcement was the last link to relieve the private interests. As for the function of the civil enforcement, nothing could be the substitute. But as a public power, its characteristic of initiative and one-way has brought out many problems such as being utilized improperly. The lawful rights of the party as well as other interested party had been damaged. At present enforcement relief is still confined to "power restricts power", but the enforcement hearing enables "right restricts power".This article firstly described the present situation of the enforcement hearing in our country, then displayed several kinds of different functions of the hearing, analyzed their respective characteristic and substantive content.Now in our country the civil enforcement has not come out of the difficulties from enforcement of judgment fundamentally. Disorder of enforcement was unable to be cured thoroughly. Although legislation on the civil enforcement relief consummated day by day, but the means to restrict improper enforcement and illegal enforcement was unitary, the structure was incomplete. In recent years the legislation and the judicial circles had a new understanding about the multiplication and the rationalization of the enforcement relief, also started to think much of standard utilization of the adjudicating power. This was just the fact foundation of civil enforcement hearing reform.Hearing procedure originated from the oldest judiciary principle of the United Kingdom _natural impartial principle and the due process of the American. In abroad, the hearing is applied to the judiciary and administrative field commonly. Because the hearing procedure was procedural, open, direct arguable, quasi-judicial, convenient, quick, flexible and standard, so it was very suitable to review the relevant disputes in civil execution. The enforcement agency got the right to review and decide from the law and judicial explanation. That was also the authority foundation that enforcement agency exercised the hearing.Reaching self-perfection and legalization, the enforcement hearing must satisfy the need of the procedural relief for which the parties and other interested parties while the procedural rule being designed. At the same time, the hearing review should give the party sufficient procedural rights, which different from civil trial. And the mechanism of resolving conflict between civil trial and hearing review must be set up. The hearing review also needed evidence rules to form a complete set. It must have own localization in the efficiency aspect. In the operation system, the hearing review should distinguish between the adjudication and enforcement, meanwhile abusing of the hearing procedure by the parties must be prevented.Finally, the author forecasted the prospect of the enforcement hearing, thought along with the legislation development and the enforcement agency evolution, the applicable scope of the enforcement hearing would reduce, its operation organization also possibly changed. But these changes would maximize the value of the enforcement hearing .