The Perfection Of Enforcement Relief Fund System In China

Enforcement relief fund system, which objective is to solve the problem for the survival of enforcee who has none available to be enforced, is a new form of judicial relief. At present, the system faces two major difficulties: First, the lack of theoretical support, lack of demonstration of justifiability and necessity; second,there is not a unified requirement so that courts in different places practice vary widely and the effect has been mixed, just like "wading across the stream by feeling the way". The purpose of writing the text is to provide a legal basis and realistic foundation for the system, and propose the idea of improving by combining with practical experience.The paper is divided into four chapters aside from introduction and conclusion.The first chapter is brief description of enforcement relief fund system. This chapter is starting from concept to clarify people's understanding of the system, after that, the author elaborates the purpose and application conditions, points out it is a kind of advances. The next discussion is about the nature of enforcement relief fund system, the author concludes that the system can not be classified to the social assistance nor an independent system, but a new form of judicial relief under the new situation. Furthermore, the system has four main functions, which means it is very helpful for parties, enforcement, the administration of justice and social harmony.The second chapter is the legal basis and realistic foundation of enforcement relief fund system. The legal basis of the system should include social welfare theory, interests balance theory and responsive law thought but shouldn't include state responsibility theory and risk-sharing thought. In the second part, the author demonstrates the necessity and feasibility of the system. The shortcomings of China's current bankruptcy system, the household registration system and of the social security system pose a threat to the survival of enforcee. Judicial practice calls for a system to solve this problem, which can solve this problem only the enforcement relief fund system, that is, the system can not be replaced, In addition, the country's policies and the existing social order patterns has been supported the enforcement relief fund system from different aspects.The third chapter is the present situation inspection of enforcement relief fund system, which is divided into two parts. The first past is current regime of the system in different places, In the provinces which have formulated uniform provisions of the provincial, the author selects Beijing city and Yunnan province as the research objects. In other provinces the author selects 9 places as the research objects, in which two of the eastern region which include Shaoxing county in Zhejiang province, and Xiamen city in Fujian province, four of the central region which include Luoyang city in Henan province, Yingdong district of Fuyan city in Anhui province, Shimen city in Hunan province and Yidu city in Hubei province, three of the west region which include Shapingba district in Chongqing city, Nanning city in Guangxi province and Fuyuan county in Shaanxi province. This can basically reflect the conduct of this system. The second part is the studies about some typical cases. The author selects "Xu Tianhua, Yan Shuangfeng " case in Xuanwei city, Yunnan province and "Weng Donghong " case in Rongchang county, Chongqing city. By comparing the merits, the enforce process,the enforce results, the Status of relief and the judicial effectiveness, the best solution to current problem can be found.The fourth chapter is the idea of improving enforcement relief fund system. The author calls for legislation to provide rigid support for the system, and then discusses the way of improving from five parts. Firstly, the expansion of sources of funding should be maximized, including government budget, lawsuit expense, enforcement fines, community donations and charitable funds, community service income, the interest and recovery of the fund. Secondly, the applicable conditions of the system have been demonstrated from three aspects, namely conditions of the applicant, conditions of the enforcee and conditions of the court. Thirdly, the author argues that organizations who release the funds should include the lead agency, decision-making agency and implementing agency; that the payment standards should be established according to the subject of enforcement and the upper and lower limits should be determined; that the different requirements should be set on four main stages which are application, review, decided and release; that coordination between enforcement relief fund system and other relief system shouldn't be ignored. Fourthly, enforcement relief fund may not be repaid preferential when recovery program has been started. Fifthly, when malicious cheating is be found, the courts should claim in civil sanctions against the perpetrator according to "Civil Procedure Law" section 102 (impede enforcing). If the circumstances are serious, criminally responsibility would be held according to "Penal Code" section 266 (fraud).