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On Service By Publication Of Civil Procedure

Posted on:2008-06-15Degree:MasterType:Thesis
Country:ChinaCandidate:Y LeiFull Text:PDF
GTID:2166360245990191Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In civil enforcement proceedings, the legitimate rights and interests of the parties and the stakeholders are unavoidably vulnerable to infringement due to the violation or improper conduct of the law enforcement agencies. Thus how to effectively prevent the occurrence of these violations and offer its legal remedies has become the practical problems frequently encountered by the people's courts at all levels. That is also the basis of the implementation of objection arising. According to China's existing civil law, the provisions of the objection is too general and vague to effectively protect the legitimate rights and interests of the parties in the implementation. Therefore, it is of theoretical and practical significance to improve the objection procedure through the adoption of the system.The current implementation of the objection system in the judicial practice in our country has not played an effective role in the implementation of relief effect. For example, there exist some defects such as "bailiff substituting trial", "to the CD generation judgments", operational procedures unknown, lack of rule basis to prove liability, and so on, which should be attributed to the simple and negligent legislation. If there is no procedural provisions of the relief, the relief of the entities also provides methods far from being sufficient. To analyze the reasons for deletion, we find that the original legislative guidance to the implementation of procedures has not taken the independent status of the implementation procedures into consideration and overlooked fair value. Besides, the theoretical basis of the legislation is imperfect. For instance, the assumption of "the subject of legal instruments is determined by legal documents" and the implementation of dissidents qualitative theory are incorrect. In order to perfect the objection procedure, the procedures should fully reflect the inherent requirement of justice, which is conducive to the realization of justice entities. Accordingly, the objection procedure can be determined in due principles: the right of the separation of powers, principles of operation, the comprehensive protection of the legitimate rights and interests of litigants, requesting principle, the principle of balanced justice and efficiency, the principle of fully embody party actions and open procedures. To implement these principles, when we improve implementation of objection procedure, we should firstly establish v. objection system; secondly introduce the right combination of independent confirmation; thirdly improve the distribution of responsibilities in the implementation of the objection.
Keywords/Search Tags:Executive objection, Procedural justice, Objection action, V. recognized rights, Burden of Proof distribution
PDF Full Text Request
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