On The Civil Right To Enforcement Of The Award

The nature of civil execution power has been the focal question in the theoretical circle and judicial realm in recent years. With the theory research deeply, the viewpoint that civil execution power is composed of two parts: execution adjudication power and execution implementation power, has occupied the main status in the theoretical circle. And with the development of the civil execution reform, each place court has established civil execution decentralization movement system, the operations of execution adjudication power and execution implementation power have been deeply. But as the important content of the decentralization movement system, such related problems as the definition, extention, allocation and operation of execution adjudication power exist very great dispute in the theoretical circle; meanwile, the practice of courts are inconsistent. However, these problems have great influence on the scientific and reasonable operation system of the execution adjudication power and civil execution power, and then restrict the reform advancement of civil execution.This paper, under the guidance of the theory of legal science, by a wealth of experience in the reform of civil execution and using such scientific methods as logic analysis, comparative study, social survey and value analysis, make a detailed and systematic exploration of the foundamental theory of execution adjudication power, such as its definition, extention, allocation and operation.This paper, apart from the introduction, consists of four chapters:Chapter one, titled "Outline of the execution adjudication power", mainly disoasses such foundamental problems as the definition, characters, existence validity and the relation with the civil trial power of execution adjudication power. First of all, the paper presents that execution adjudication power is the state coercive power, by which execution adjudication organs, according to the application from creditors, are empowered to judge some procedural items which happen in the civil execution process and have influence on creditors' rights and obligations. Execution adjudication power has such characteristics as passiveness, independence and neutrality. Then, the paper, on the ground of the definition of the power, discusses the existence validity from view of philosophy and law. Finally, the paper, based on the fact that the performance of execution adjudication power and civil trial power are both judgment behavior, discusses the relation between the two powers. Presents that execution adjudication power does not belong to civil trial power, or is identical with civil trial power. The two are in the different level in the system of civil judicial power. They have difference in such aspects as judgment content, judgment object, the effect of the power's operation, the operation stage, procedure structure, relief function, relief mechanism, legal application.Chapter two, titled "authority field of execution adjudication power", discusses the items which can be judged by execution adjudication power, also called the contents of execution adjudication power. On one hand, execution adjudication power is to judge some disputes which happened during the execution process, so the limit of its authority field affects the relation between the execution adjudication power and civil trial power which aimed at resolving dispute; on the other hand, as the important content of civil execution power decentralization movement system, the limit of its authority field also affects the relation between execution adjudication power and execution implementation power., and then influences whether the decentralization system can operate scientifically and reasonably. First, the paper presents that the substance rights and obligations disputes which happened during the execution process should be judged by trial power. Even at present most of courts have organized execution adjudication divisions, they can not judge these disputes, which must be judged by the civil court. Then, the paper introduces and evaluates the practice modes in the judicial practice. Finally, based on the former contents, the paper presents that execution adjudication power concludes examination power of execution document, investigation power of changing and supplementing the executive party, determination power of execution document, inspection power of execution objection, and also makes detailed research about these.Chapter three, titled "Allocation of execution adjudication power", the major topic is the reasonable allocation of execution adjudication power. First, according to allocation fundamental factor, the value orientation of efficiency of civil execution procedure, and the aimness of execution adjudication power, the paper discussed the factors which must be considered when allocate the power. Then, the paper introduces the argument in theoretical circle and the judicial practice about the allocation. On the ground of these contents, the paper presents the authors view, that we should organized execution adjudication division, which belongs to execution council.Chapter four, titled "Operation of execution adjudication power", the major topic is the procedural construction for operation of execution adjudication power. The paper, on the ground of the characteristic of execution adjudication power such as passiveness, independence and neutrality, introduces that execution adjudication power should represent adversary system; meanwhile, as the important content of decentralization movement system, its operation cares for the value orientation of the efficiency more than that of the trial power. Then, according to the process of the operation, the paper makes detailed discusses about the principle of jurisdiction, the start of the procedure, the operation mode, the burden of proof, the relief procedure and execution adjudication document. The paper presents that, the operation mode concludes execution hearing and by record. It also points out an opinion of shifting the burden of proof in allocating the burden of proof to execution implementation institution. Also, the paper points out that we should establish review procedure, but the review can not stop the operation of execution. Execution adjudication should unify uses the form of written verdict.