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Conflict And Balance Between Compulsory Execution And Conciliation Of Execution

Posted on:2008-05-10Degree:MasterType:Thesis
Country:ChinaCandidate:J T ZhangFull Text:PDF
GTID:2166360242459473Subject:Law
Abstract/Summary:PDF Full Text Request
Conciliation of execution, having its unique vaule, has been widely applied in enforcement in pratice, playing an important role in alleviating"difficult execution"of the people court. However, there are some abuses of reconciliation such as"reconciliation resistance","delay in implementation", which hamper the smooth execution. These phenomena are superficially caused by subjective malice of the parties, but virtually are rooted in conflicts between compulsory execution and conciliation of execution. Conciliation of execution is an effecive way agreed by parties to reach a balance; in essence, it is a private relief means of parties. Compulsory execution refers to enforcement of civil executive power exercised by the executive organ on behalf of the state. It is a relief means of public power that the creditors apply for from the state. Therefore the conciliation of execution and compulsory execution have quite different characteristics of law. Private relief means and public power relief means will influence each other when they are carried out at the same time. The mutual exclusion bewteen voluntariness of reconciliation and enforceability of execution will inevitably lead to conflicts.From the perspective of legal theory, the conflicts between enforcement and reconciliation are discussed and a proposal of solving the confilicts are put forward. The paper is clarified and well-structured and there are five chapters. The first chapter discourses on the nature and features of enforcement and points out that the enforcement aims to realize the confirmed content issued by the legal documents. Essentially enforcement is an administrative behaviour with initiative, compulsory, one-way and efficient characteristics. The second chapter clarifies the essential idea and value orientation of conciliation of execution; the essential idea includes four parts: integrity and self-discipline, legitimate content, fair protection and independent party automony while value orientation reflects in the following three aspects: settlement of disputes, reduction of execution cost and conservation of judicial resources. The third chapter focuses on the analysis of conflicts between enforcement and conciliation of execution, which manifesting in following five aspects: conflicting roles of the executing judges; struggle for control of operation during implementation procedure; conflicts concerning deadline for performance; conflicts and limits of rights to reconciliate and rights to execute; conflicts conerning the gist of execution. It is pointed out in this paper that the root cause of these conflicts lies in the fuzzy theories of compulsory execution procedures,. There is no scientific trade-off between doctrine of function and power and adversary system, between doctrine of equality and inequality of parties. The different provisions of reconciliation during enforcement procedure abroad will be introduced in the fourth chapter. In the last chapter a proposal is put forward to solve these conflicts and a new definition of conciliation of execution is suggested, which excludes the reconciliation procedure from enforcement procedure. The reconciliation process is to be placed before the enforcement procedures so that the conflicts between these two means can be resolved.
Keywords/Search Tags:compulsory execution (Enforcement), conciliation of execution, reconciliation effect, rational allocation
PDF Full Text Request
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