On The Prior Execution In China's Civil Litigation

As a kind of civil litigation guarantee systems the prior execution is the system that has a paid in advance and behavior preservation. The system functions of the prior execution should include two aspects. One is to offer relief timely and effectively when the legal rights of the proposer are damaged. The other one is to avoid the legal rights being further damaged. The existing legislation on the prior execution is not perfect. On one hand, it has variances on the legislation and can't play its essential functions, which are shown specifically on the narrow scope and the rigorous terms. On the other hand, there are many problems on detailed procedures. For examples, the start-up mechanisms are not enough; the terms about the guarantee are not reasonable; the relationship between the censor of the prior execution application and the litigation is disposed improperly; the relief procedures are not perfect; No provision about the respondents who carry out the debt actively and end the action. The pretty low adoption of the prior execution in civil litigation.it is necessary to improve it.So the prior execution should be perfected in the legislation. Its scope should be expanded and the corresponding terms should be made flexible. In the specific procedures it should be designed to achieve the following points:firstly, the start-up mechanisms of the prior execution should be perfected; secondly, the guarantee terms should be flexible and loose; thirdly, the serious " case" tendency problems should be solved, and the relationship between the censor of the prior execution application and the litigation should be disposed properly; fourthly, the relief procedures should be perfected and the litigants should be given the equal relief right, which is:the right to appeal to the judge of the prior execution. Fifthly, regulation, which is about the respondents who carry out the debt actively and end the action, should be used. Finally, the compensation system for wrong prior execution should be suitable for the entity law of the liability for tort.