The Construction Of Examination-type Execution Activating Model

Execution activating procedure is the starting point of executing the measures as well as the basis of the development of the execution procedure in order. The present legislation in china applies the command–type execution activation model, in which, the executors should send out the notice letter to the debtor after the registration of the execution case to order him to perform it within the time limit. As long as the debtor does not perform the act of giving back the debt, the People's Court will execute by the strong hand.The execution activating model mentioned above has brought much puzzlement both in theory and in practice: (1) confusing the execution law relationship and obscuring the rights and obligations among the subjects in the execution law relationship to make the rights of the creditors cover the procedure obligations shouldered by him and the obligations of the debtors cover his procedure rights. In addition, People's Court is positioned as the agent of dunning for the creditors, which shapes the septum between the creditors and debtors to expand the power of the justice; (2) it destroys the structure of the execution relationship and the execution court biases for the creditors in the execution procedure, which shapes the structure of non-isosceles triangle among the court, creditors and debtors, confusing the differences between the execution of verdict and that of performance. This does not conform to the current international legislation practice; (3) it results in the misplacement of the forcible execution basis and attaches the execution procedure to the trial procedure, taking for granted that execution procedure is the stretch of the trial procedure and ignoring the independent position and value of the execution procedure as well as mistaking the execution of the execution procedure for the basis of the forcible execution measures. This disobeys the common law of the execution procedure, resulting in the misplacement of the basis of execution measures. (4) it takes some laws as the starting conditions for the execution measures and separates the execution measures from the property situation of the debtors, which not only results in the performance of execution measures on the basis without the investigation of the property. This results in the blindness of the execution and conflicts with the basic principle that law is the norm of activity; (5) it wrongly distributes the rights and obligations of each subject, taking for granted that it is not essential for the creditors with the execution basis to give the evidence for the performance ability of the debtors and it is the obligations of the court that finds the execution property, resulting in the waste of the execution resources and the overload on the execution organization; (6) it makes the execution court become the enemy of the debtors and results in that the debtors think that the execution organization is irrational. The execution contradiction becomes acute gradually, reducing the social empathy of the execution; (7) it makes the execution measures lack the supervision and the society can not learn the reason for the execution activation or even predict the kinds and strength of execution measures, thus it is difficult to ensure the propriety and harmony of execution measures.This paper criticizes the current command-type execution activating model from theory and practice and infers that execution activating procedure has the following basic structure and content through discussing the basic principle and theory of the execution rights: (1) it can be inferred that execution right has the character of independent judicial forcible right based on the analysis of the basic character of the civil execution right. Though it shows the forcible power to some extent, the executive forcible power is under the control of the judicial power and is guided by the latter. Execution activating procedure is the decisive process of the execution measures, being the typical judicial judge process. Therefore, execution activating model must have the structure of judicial examination and judge. (2) it is inferred that People's court should take the leading position in execution procedure from the analysis of structure of the execution law relationship. Activating model of the execution procedure should embody the legislative idée of equality and justice. Correspondingly, the execution procedure should endow some lawsuit rights, for instance, debtors should enjoy some argument right, the exemption right of the property for basic life. Therefore, the execution activating model should include the value orientation of equality and justice. It also should set up the conversation platform for the two parties and take the performance of effective judge as the basic point of the judicial logic and assure the property accusation responsibility system of the creditors and property declaration responsibility system and the examination and judge system of exemption of property for the debtors. (3) it is inferred that execution activating model should put to the proof, doubting the proof and examining the proof centering on the reason stated by the debtors and their property declaration, analyzing and judging whether the reason why debtors do not to perform conform to the principle of refusing to perform and make the verdict system of whether to execute, how and when to execute according to different reasons. (4) To ensure the smooth implementation of each system, the execution activating model should inform the two parties the consequence of not performing the obligations while clarifying the rights and obligations of them. Relate the legal consequence with the current judicial forcible measures in China to set up the judicial forcible system of refusing to declaration, declaring the false property and postponing the declaration. On one hand, the law structure is further optimized and on the other, the lawful responsibility becomes concretized.After analyzing the basic structure of the execution activating model, this paper proposed to set up the judicial examination-type execution activating model according to the basic theoretical demand: (1) replace the execution notice letter with the warning letter, demanding the debtors to declare the property as well to state the reason why they do not perform the enacted judge, clarifying the property investigation rights and argument right of the creditors and the leading position of the People's court and endowing the statement and argument rights to the debtors and manifesting the legal consequence of not performing the obligations; (2) set up the hearing and examination system for declaring property and stating the reasons for not performing the verdict. Hear the reasons for not performing the debt through the hearing procedure and judge whether reasons are objective, for instance, it is the responsibility of the third party and the debtors are unable to perform the verdict, or subjective, such as the debtors have the property but they refuse to perform the verdict. Examine the property list provided by the debtors and clarify the execution direction of next step. (3) set up the hearing verdict system, which deal with the lawsuit of the two parties through verdict procedures. For those with property, according to the property situation, the effective verdict is divided into parts technically to clarify the concrete execution steps; for those without property, according to the property situation of the debtors, make the verdict that the execution can be postponed and ask the debtors to declare subsequent property; for those that conform to the ending conditions, make the verdict that end the execution; for those who refuse to state the reasons and declare the property falsely, carry out the judicial forcible measures; (4) divide the internal relationship among the systems above rationally and clarify the rights and obligations of each party in the form of warning letter; clarify the execution law structure and build the communicative platform for the parties concerned through the open hearing and doubting the proof procedures; define the judicial character of the execution of the judge right in the form of verdict; take the verdict as the basis of the execution.The author hopes to clarify the execution law relationship, delete the execution septum, balance the law structure, conform to the advanced international legislation convention, restrain the willful execution act and inactivate the execution conflicts through the reconstruction of the execution activating model.