A Research On The System Of Civil Execution Relief

This thesis takes Research on the Civil Execution Relief System as its topic, and aims to proposing my own opinion and suggestions on the reconstruction of the civil execution relief system in our country, in an attempt to restrict the enforcement power, promote the execution work to move towards unification, transparency and standardization, guarantee practically the enforcement parties and the relevant interested parties' legal rights and interests. The whole thesis are divided into five chaptersChapter I is the summarization of the execution relief system. First, from the angle of the intension and extension of the concept, it analyzes many scholars' different concepts about the execution relief system, refine the same, compare the differences, and carry on the thorough discussion to the execution relief system. Hereon, my own understanding of the concept of the execution relief is educed. That is the civil execution relief system, which is the legal system that in the process of the civil forcible execution, the enforcement party or the intervenor think that the forcible execution behavior of the execution administration has the illegal or the improper situations, which infringe or may infringe their legal rights and interests, and they legally require the related department to protect their legal rights and interests, and the entitled organ takes the suitable relief measure to give the right protection according to the legal rules. The execution relief includes the procedural execution relief and the substantive execution relief. Hereinto, the procedural execution relief includes the request and non-action, the dissenting declaration and the execution counterappeal; the substantive execution relief includes the debtor's opposition and the third person's appeal. And it takes these as the elaboration foundation and the starting point of the whole thesis. Then, it analyzes briefly the characteristics, the values and the functions of the execution relief system. Finally, it analyzes the theoretical and fact foundation of the execution relief system. Hereinto, the theoretical foundation of the execution relief system is analyzed from three aspects of the right relief, the power restriction and the stability and harmony of the society. The fact foundation the civil execution institution is the executive defects of the civil executive administrations. The executive defects include the executive procedural defects and the executive result defects. The effectiveness of the executive behavior with defects is inevitably influenced, and it should be ineffective or revocable.Chapter II is the introduction of the execution relief system in the countries of the continental law and regions. Through inspecting the legislation bodies, the relief methods and the procedures of the execution relief system in the Taiwan area in our country, Japan, France and Germany, the thesis has conducted the comprehensive comparison research on each country's execution relief system, combined with the each country's legal tradition and the survey of forcible execution. It not only summarizes their common grounds: the relief object is comprehensive; the relief method is complete, all can be divided into two kinds of the substantive relief and procedural relief; all consider the equality and efficiency; all uses all centralized legislation body; all has high generality and central tendency about the legal provisions of the execution relief, but also points out the characteristics of each country: the Procedure Law in German establishes the rules of " temporary command"; Japan's execution relief system has manifested the pursuit to the concept of procedure justice, and the characteristic thing of them is the execution counterappeal system; the execution relief system of the Taiwan area in our country is designed quite thoroughly and exquisitely, which endeavors to find the point to combine equality and efficiency best; France's execution relief system is relatively dispersible, does not the stipulate procedural relief methods and the entity relief methods by categorization, but establish the quite characteristic execution judge system.Chapter III is the comparison and analysis of the execution relief method. From the concept extension of the execution relief, the execution relief could be divided into the procedural execution relief and the substantive execution relief.For the procedural execution relief, it dissertates from three aspects of reason, initiation and censorship. The reasons for the procedural execution relief mainly include that the non- acceptance of the creditor's execution application without reason, the acceptance of the execution application which should not be accepted according to the law, procrastination execution, the violation of forcible executive measure, the illegal determination of execution suspension, the execution termination or non-execution, and the execution forcible measure which violates the executed person's executive immunity right and so on; The initiative bodies of the procedural execution relief are the enforcement party and the interested party, of which the enforcement party includes the execution application and executed person in the forcible execution procedure. The procedural execution relief should be mentioned after the behavior implementation execution before execution termination; the initiative forms include the request and non-action, the dissenting declaration and the execution counterappeal. The enforcement party and the interested party could initiate by the oral way, or by the written way; the procedural execution relief adopts the examination way which is carried out the examination by the execution authority's determination organization in the way of the collegiate bench.The substantive execution relief includes the debtor's opposition and the third person's appeal. For these two objections, then mainly from theirs legal nature, it carries on the detailed comparison, analysis and elaboration from the four aspects, the law nature the objection reason, the procedure and the consequence.Sue of the debtor's objection is very difficult to be classified in the traditional civil action theory concerning the sue classification because of its particularity. the author thinks that the sue nature of the debtor's objection is the relief sue; The reasons of the debtor's objection sue mainly include the matter of eliminating the creditor's rights, the matter of interfering the creditor's rights, the matter of the untenable creditor's rights and the matter that is out of the reach of the execution power; the debtor's opposition should be initiated after the beginning of the execution procedure, before execution termination, which is in the charge of executive court;When the debtor initiates of objection sue, in principle it does not stop the original execution, but if initiated as plaintiff's debtor application, the court may require the debtor to provide the guarantee according to the case, and then judge to stop the original execution. And it may not require the debtor to provide the guarantee but rule to stop the original execution; Suing of the debtor's objection is heard by the acceptance court according to the general civil action procedure. Except ruling to reject because of not conforming to the prosecution condition, no matter whether objection does have the reason, all should be ruled.The legal nature of the third person's objection sues is the action of prestation. This kind of the action of prestation refers to the negative non-action. Namely the executive creditor has the negative non-action duty. The plaintiff in the third person's objection sues is the intervenor who has the right of eliminating the executive right for the executive subject matter. The following intervenors could initiate the executive objection sue as the plaintiff status: the intervenor who has the right of the executive subject matter's ownership, the joint owner when the executive subject matter is owned jointly, the intervenor who has the right of guarantee for the executive subject matter's ownership, the intervenor who has the right of use for the executive subject matter's ownership and so on. The defendant of the third person's objection should for the executive creditor or his heirs. The reason of the third person's objection sues, namely the intervenor has the substantive right of eliminating the executive right for the executive subject matter. This right depends on the Substantive Law's stipulations. Namely according to the Substantive Law's stipulations, then the intervener's proposition for the substantive right constitutes the legal reason of the third person's objection sues, if the substantive right advocated by the intervenor may resist the request power of creditor's rights. The third person's objection sues could happen before the establishment of the execution basis, and also may occur after it. The third person's objection sues should be initiated to the court after the starting of the executive procedure, and before execution termination. The third person's objection sue has the same influence on the executive procedures as the debtor's objection sue. In principle, it could not cause execution termination, but if initiate application of execution termination as plaintiffs third person of carrying out, the court may require the third person to provide the guarantee according to the case, and then judge to stop the original execution. And it may not require the third person to provide the guarantee but rule to stop the original execution. Suing of the third person's objection is heard by the acceptance court according to the general civil action procedure.Chapter IV is about the present situation and the flaws of the civil execution relief system in our country. The stipulation about execution relief system in the present Civil Procedure Law in our country has actually only one kind, namely the Article-208 of Civil Procedure Law in our country, as well as the execution objection system of the relevant judicial interpretation stipulation. After making clear the concept of the execution objection, it then analyzes particularly the proposal of the execution objection's condition, the process of the objection censorship and the handling as well as the execution objection nature. Through analyzing the present execution relief system in our country, it thus points out its existing flaws: the inadequate system of the present civil execution relief in our country, non-differentiation of the procedural relief and the substantive relief, lacking of the procedural relief method in fact; lacking of view of the right relief method for the enforcement party; the intervening objection system itself has many flaws.Chapter V is about the reconstruction of relief system in our country. The present executed relief system can not solve the problem depending on the sewing and mending, but abolishing the existing objection system, to reconstruct it. Aiming at the relief system deficiency in view of our country, unifying our country national condition, and the successful oversea experiences, we should carry out the relief system to reconstruct our country. The author believes that, there are some principles that should be held when carrying out the relief systems: namely the right relief and the authority restriction coordinates principle, comprehensive protection principle, the consistent fair execution with fair efficiency principle, the principle of party and the procedure public principle. Basing on these, the author proposes the concrete suggestions on reconstruction the remedy system in China: first is to establish effective civil implementing agency and carries out the judgment execution organization. Establish independent execution ruling courtyard basing one the retention of existing execution bureau. The second is to establish execution remedy system in procedure. The procedural execution remedy is to correct relative organizations' illegal or improper execution behaviors and protect the legal rights of the party and interveners and by endowing them with procedure objection rights. There are two forms in procedure objection: claim and dissenting declaration. The result executed of disagreement review is made by the judge of execution ruling courtyard as adjudication. Those who refuse to accept, or do not give reply in the legal period, the party could apply to the upward level of people's court; Third, to establish the relief system basing on entities, namely establishing the system of accepting debtor's objection, the third person's objection suing system, and participation distribution system. Fourth, it introduces the hearing procedure, and the execution hearing. That means that in the execution, the executive court call in the party to the court and hear for verifying the fact, and the solution disputed, call the party to appear in court referring to the civil action hearing procedure, hear the party certification of the proof provided by the party, and make corresponding processing execution according to the above.