Validity And Feasibility Of The Civil Enforcement Execution Procuratorial Supervision Study

In China's current judicial practice, the implementation of the civil magistrate to face "difficult to implement," "implementation of chaos" and many other questions, supervise the prosecution of one of the important deficiencies are one of the reasons why. In this paper, to explore the best way to run the implementation of civil rights and to fill the gaps in the legal supervision system of our country as the starting point ,to carry on rational analysis the problem of building the implementation of the prosecution of civil monitoring system of our country. based on the theoretical analysis, the article suggested that our country should clearly defined that the implementation of supervision rights of the People's Procuratorate ,to build a comprehensive monitoring system of civil implementation of the prosecution. I believe that building a civil implementation Procuratorial supervision system has both theoretical foundation and the urgent need to practice, and is helpful in scenically standardizing the implementation of civil rights, and thus to overcome more and more serious problems of practice of civil "difficult to implement," "implementation of chaos". Civilian implementation monitoring system with the prosecution can not be replaced by other system functions, and therefore is necessary to be built and improved. At the same time, setting up the Civilian implementation of inspection and supervision system is essential content to fill the gaps in China's system of legal supervision.This article by the introduction, the main text and the concluding remark three parts is composed; the main text divides into three chapters.The first chapter is civil execution surveillance system's present situation analysis. In China, "carry out difficultly", "to carry out chaotically" is the most major problem which exists in present civil referees carry out, base on the strict limits "carries out difficultly", "to carry out chaotically", then the analysis obtains its main performance is: The civil enforcement agents quality irregular, good and bad coexisting, our country civil execution legislation imperfect, the system of civil carry out not perfect, the civil executive routine confusion, the measure of civil carry out utilization standard, the civil execution management not to arrive and to carry out aspects negatively. Then fundamentally eliminates the question of "carries out difficult", "to carry out chaotic" that must to establish powerful and the effective surveillance system to the civil referee's execution, present civil execution surveillance's situation actually by far has not met this requirements in our country. First, civil execution internal surveillance's own malpractice is unable to overcome. Mainly displays in: The execution management system is not suitable, between the upper and lower layer court lacks the effective restriction; the power of carry out high degree of concentration, lacks keeps in balance the mechanism; The trial surveillance and the disciplinary inspection supervise absent. Next, the existing civil execution's outside supervision does not arrive. The existing Organ of power supervises, the social surveillance and the Party and government organizations supervises, respectively has the advantages, cannot form the system, cannot fundamentally contain "carries out difficultly", "to carry out chaotically".The second chapter is the validity analysis of civil execution examination surveillance. The civil execution examination surveillance is refers to the People's Procuratorate which enjoys the civil procuratorial power carries on monitoring and supervision to the implementation behavior and execution ruling behavior of People's court, supervise the People's court to correct error of carry out according to the legal proceedings, thus to standard the implementation of civil rights running legitimately and reasonable. The civil execution examination surveillance has the basic functions that standard People's court to exercise the implementation of civil rights, to maintain the litigant and the document bystander legitimate rights and interests as well as the complete our country civil examination surveillance systems. To carry on procuratorial supervision to the civil enforcement contains the profound rationale. First, request inevitably of authority natural quality. There is expansionary in any authority, there must be have one exterior authority to supervise and the restriction, so the authority can be guaranteed effectively realized. Second, the implementation of civil rights inevitable response. the implementation of civil rights is refers to by the National execution Institution exercises, in accordance with the law to adopt certain mode of execution and enforcement arrangement, to guarantee that the content of becomes effective judgment can realize. It is the civil rights strength which exercises by the State agency, may differentiate for the execution implementation power and the implementation of jurisdiction, as from the authority attribute, has both the executive power and the judicial power characteristic. Therefore, the movement of the implementation of civil rights is belong to the scope of People's Procuratorate to examine surveillance. Third, certain claim of civil procuratorial authority nature. The procuratorial authority is refers to base on definition for procuratorial authority which in pursuance of the constitution, the procuratorate constitutive law, each kind of procedural law as well as other laws, the authority which enjoys in the law as well as the actual activity by the Procuratorial agency. In our country, the nature of the procuratorial power is the legal supervisory authority, namely People's Procuratorate when fulfillment legal supervision function enjoys legally each authority general name, but, contains to the People's court the implementation of civil rights surveillance. At present, France and Russia already had made the explicit stipulation in the related law to the civil execution examination control system, which explained the civil execution examination surveillance system's feasible solid however existence, also has constructed this system for our country to provide the experience specifically.The third chapter is the feasibility analysis of civil enforcement supervision. In China's current judicial practice, the procuratorial agency takes out procuratorial supervision to civil enforcement procedures in accordance with the law ,has the very strong realistic necessity, also has a solid legal basis. Construction of China's civil execution examination control system must adhere to Surveillance legal, justice and efficiency, passive surveillance, non-intervention in normal activities of the civilian implementation of people's court, firmly limits the scope of the surveillance by the procuratorial agency at: effective referee which made in the implementation process by People's Court is illegal, the implementation of measures which adopts in the course of the implementation by the people's court and the enforcement agents bend the law carry out the behavior. Procuratorial agency can use measures that demurrer, issues the correction illegal written notice, procuratorial recommendations raised, issues the supervision execution prospectus, issues the temporary respite letter of proposal, to carries on the surveillance to the enforcement procedures of People's court. Finally, in the design of specific procedures for the prosecution, in view of the Procuratorial agency carries on surveillance in different ways, advance legislative proposals specific, for reference.