Research On The Difficulty In Civil Execution

The difficulty in civil execution is a problem that calls for an urgent solution in judicial practice in China today and one of the important theoretical and practical questions in building the legal system in the country. In China, the research on the problems of the difficulty in civil execution has long lagged behind the civil execution practice, behind the legal progress including the judicial reform and behind the pace of market economy and social development, which would thus seriously constrain the reform and development of civil execution and the solution of the difficulty in civil execution. This paper, under the guidance of the theory of jurisprudence, by a wealth of experience in the reform of civil execution and using such scientific methods as value analysis, logic analysis, comparative study and demonstration study, makes a comprehensive and systematic exploration of the cause of the difficulty in civil execution, and designs the countermeasures of the difficulty in civil execution which is compatible to China's actual conditions. Above all, it will be of significance in theory and practice to the perfection of the system for civil compulsory execution, the promotion of civil execution reforms and the overcome of the difficulty in execution.There are three chapters in this paper.Chapter one is the summary of the difficulty in civil execution. Through analyze the conception, it makes contrast and analysis of conception of the difficulty in execution in broad sense and narrow sense, and deems that the difficulty in execution in true legal meaning should be the case which the obligor has the ability to implement whereas can't be executed for variety reasons. Based on the analysis above, it investigates the present situation of difficulty in execution in China, deems for the highly recognition, the lasting systems of execution, the cooperation systems of execution and the deterrence systems of execution has initially founded, also the information systems has initially effected, the questions of difficulty in executions have eased up in some extent, and the rate of execution has grown incessantly. While the disadvantage factors which restrict execution haven't fully cleared, the difficulty grows unceasingly, the obligors and the properties still hardly to find, violence against execution occurred unceasingly, difficulty in execution of the special subject all the same. Then, it analyzes the harm of the difficulty in execution, points besides reduces the authority of law, it harms benefits of people, sharpens conflict of society, and blocks harmonious of society. At the end of the chapter, it studies the difficulty in execution on abroad by comparative study.Chapter two is analyze of the cause of the difficulty in civil execution. It deems that the cause of the difficulty in execution is the comprehensive effect of exterior circumstance and interior system.The effects of exterior circumstance have three aspects. First is the overmuch interference of the local Party committee , government and congress, which bring about local protectionism and department protectionism, the adjudicate of other place can't execute properly, also the interest of the party on other place can't protect properly. Second is the shortage of good faith and indifference of legal sense. Under the background of market economy, money worship and selfishness are prevail, the good faith of people is decrease gradually, moreover the shortage of credit mechanism, the country can't punish the perfidy properly, the obligor can flee easily, so cause the difficulty of civil execution. Third is the limitation of the execute system, which also can be divided to three aspects. Firstly is the imperfection of legislation of the civil execution. Secondly is the shortage of effective disciplinary measure. Thirdly is short of means of relief.The effects of interior system have three aspects either. Firstly is the executor is distributed irrationally, the entire quality is low. Secondly is the trial and execute can't integrate well, the trial can't fully think if the judgment can execute practically. Thirdly is the inconsequent setting of the executing organ, so it can't work well.Chapter three is the countermeasure of the difficulty in civil execution. It deems that the full settlement of the difficulty in civil execution should start with follow aspects. Firstly is accelerating of the judicature reformation, which can insure the judicature independence. To achieve this aim, two things should be done. One is nonlocalized of the judicature, the other is the supreme people's court should give powerful support, the third is strive for the support of local party committee, government and congress actively. Secondly is reformation of the executing organ. First is should clear that the relationship of the executing organ on the court below and above is uniform harmonize and administrate, independent verdict. Second is should properly deal with the relationship between the executing organ and other department of the court. Third is should carry out reform of the executing organ, which should be divided into three branches, that is the comprehensive branch, the implementation branch and the verdict branch. Thirdly is strengthening the construction of executing troop, which should adjust and enrich the executing personnel, and strengthen the professional training. Fourthly is strengthening the cooperation system of execution, which should rely on the promotion of the Party, the self-motion of the department concerned with, and the protection of the rules. Fifthly is carrying on legislation, which should enact enforcing execution law and service law, and should amend the criminal law. Sixthly is should integrate the trial and execution, which should highly recognize the safeguard of trial to execution. Seventh is should perfect the investigation system of the property of execution, which also has two things to be done, one is clear the declaration obligation of the obligor, the other is employ the writ of inquiry. Eighth is setting up salvation system of execution, which is under the support of the local government, to the obligor answer for the condition, giving the executing salvation.