| In enforcement of civil case, it's difficult to completely avoid injuring the rights and interests of litigants and other persons concerned. There are injuries, there shall be remedies. And they should have systems to safeguard. As a result, execution of remedy system shall be produced inevitably.Execution of remedy system has four characteristics: protecting rights, subsequent, legal and subordinate. In China, the current execution of remedy system consists of dissent of execution, turn-round of execution and judicial compensation. Civil procedure law of our country No.208 specifies dissent of execution. Therefore, turn-round of execution is a kind of subsequent practice for remedy system. Also, it is one of ways to eventually protect the rights of persons not involved in the case. Judicial compensation in execution procedure applies to the scope of executing legal instrument according to mistakes, while execution of wrong legal instrument does not belong to the scope of judicial compensation. Usually it is corrected through procedure of adjudication supervision and then comes into turn-round of execution.Execution of remedy system in the countries with continental law system, such as Germany, Japan, France, Switzerland and the region of Taiwan in our country, includes procedural remedy system and substantial remedy system which consists of dissent action of obligor and dissent action of the third party.Contrasting to them, execution of remedy system in our country has some defects. First of all, the methods of executing remedy are simple. The current system in our country only specifies dissent of execution, turn-round of execution and judicial compensation. In dissent of execution only the third party who can reject the execution of objects shall be given the right to have remedy. The obligees and the obligors whose legal rights might be harmed during execution can not get the corresponding protection. Second, it can not effectively protect legal rights of persons not involved inthe case and litigants in execution. As dissent of execution is as concerned, the censorship can not fully protect legal rights of persons not involved in the case and litigants in execution. Inquiry procedure is not litigation procedure after all. So it can not let all parties concerned provide general and real evidence, ensure to heed the opinions of parties having controversy or make a judgement fairly, which in fact deprive the controversial parties of the right to get the remedy in normal litigation procedure. Besides, according to the current law, when persons not involved in the case claim all or part of right of the object, they can not charge directly but protest to the execution organ which solves the substantial problem with decision. It is unreasonable in science of law and harmful in juridical practice. It deprives the litigant not only of right of appeal but also of right of action because it is a kind of final decision that takes the place of first instance, second instance and retrial. Third, confuse procedure for trial supervision with execution of remedy system. Fourth, be lack of corresponding remedies for procedural illegal and improper execution. To some content, execution of remedy system is a kind of procedural protection system, especially to litigant participants and their interests. Civil procedure law of our country No.208 specifies that disagreement from persons not involved in the case shall be examined by executors according to legal procedure. However, such a kind of legal procedure does not exist in reality. So there is no system of disagreement from persons not involved in the case really in our country. Finally, the current law in our country does not specify substantial remedy to executees. There are no methods for conditioning and correcting the behaviors that injury substantial legal interests of executees, which is not advantageous to protect legal interests of executees.The current execution of remedy system in our country shall be improved in terms of aspects as following.First, set up... |
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