The Improvement Of The Civil Forcible Execution System In China

Civil forcible execution, which is an important component of civil procedure, offers relief of public power to private rights. The present situation of the existing civil forcible execution system is not satisfactory, such as the phenomenon so-called"difficult execution". The reason of such phenomenon is complex. It is an urgent need for the actual execution and other relating systems to make reform and improvement.In our country, it is courts that exercise the right of civil forcible execution. The cognition of the nature of civil forcible execution right affects the eventual direction of the execution system reform. At preset, there are mainly four theories about it, those are, judicial conduct theory, administrative act theory, judicial administration theory and the theory of dual attributes of administrative power. In abroad, the systems of civil forcible execution are diversified. However, not a single country set up its civil execution organs under the judiciary or administrative department, that is, the organ of execution is neither subordinate to judiciary nor administrative department. Another point is the separation of trial and execution. The existing civil execution procedure is involved in the Code of Civil Procedure which endorses the legislation mode of"combination of trial and execution". Under the present condition, in order to reform and improve the system of civil forcible execution, the following issues are noticeable and worthy discussion:Firstly, it is necessary to change the concept of civil execution. By the restriction of limited judicial resources, the concept of"adversary system"should be introduced into execution procedure to make the parties assume more responsibilities and the entire execution procedure more transparent. Meanwhile, the execution organ may be relieved from the pressure of heavy work and devote its major efforts to establish the authority of the judiciary and to cultivate the market system with honest and credit. The second is to balance the interests relations between parties in execution on the principle of"interests measurement", in order to adapt to the ever-changing social situation and ensure the fairness in every single case. Third, we must conform to the trend of the times and we shall establish the concept of protecting basic human rights in the course of civil forcible execution, such as the provisions relating to the exemption of executive property.Secondly, we should further improve the systems. First, we shall timely introduce the Law of Civil Forcible Execution of People's Republic of China; second is to make a thorough separation of jurisdiction power and enforcement right. The issues of substantive rights related to parties (the third party included) shall be determined by the adjudication body, which paves the way for the later reform of execution system; third, we shall perfect the system of property investigation. We shall make multiple efforts such as depending on the executed's report and the applicant's offers and findings. And Courts conduct investigations according to their authorities with other departments'assistance. Fourth, we shall strengthen the verdicts of accountabilities to those who refuse to comply with courts'judgments and rulings from both criminal and civil aspect, so as to maintain the authority of law. Fifth, the execution system should be in converge with the bankruptcy system, complementary and mutually reinforcing in order to maintain the coherence of civil Debt Settlement system.Third, we should also pay attention to some other issues related to execution. One is to establish and improve the executive officer system by availing the opportunity of execution system reform and decentralization, so as to improve the quality of officers. The other is that we shall promote the establishment of national execution deterring system and of market environment of honesty and credit.