Primary Research On The Guarantee Of Rights In Chinese Civil Compulsory Execution

The protection of rights is deemed as the soul and headstone of all modern legalsystems. Whether pursuing rights is a main difficulty between the modern laws andother laws."Human Rights edited into Constitution" it is not only to comply with theneed of this one tendency of the day, also requires the pacing and adjustment ofrelevant laws. In the past, the theme of research rights has been centering on criminallaw, criminal procedural law administrative law and constitution by law academiccircles, if someone want to study rights in civil compulsory execution he may beridiculed.In tradition ideas, research on civil compulsory execution covers solution of“execution nut” and “execution disorder”, research on human rights is not be included.Also working on this area cannot get some valuable things. Through the reading ofbooks which in respect of civil compulsory execution I find that there are deepassociations between them. The essence of enforcement authority is a kind of statepower, and the enforcement means the public guarantee to the private creditor. It isattached to one party as the approach to fulfill the rights. So it also implies that theexecution of enforcement satisfies one party just by the way of impairing the otherone, the power intervene s in the relationship of creditor’s rights between the equalbody, also in this relationship the power cannot keep neutral like Judicial authority.However, if we do not restrict and supervise the expansionary nature of the power, itwill no doubt infringe upon the rights, the phenomenon of “execution nut” and“execution disorder” may evade basic rights. Compulsory execution should notprohibit the guarantee of rights, to the contrary, as the public law civil compulsoryexecution law should protect the rights initiatively. Thus, the research on theguarantee of rights in civil compulsory execution has necessity and significant.This paper is divided into four parts on researching the guarantee of rights inenforcement. The first part indicates that the guarantee is the essential requirement of civil compulsory execution by analyzing the purpose and nature of the power. Thefirst aim of the compulsory execution is fulfilling creditor’s rights, but it is not theunique purpose. Also the compulsory execution undertakes the task of materializingthe procedural justice. Through analyzing the transforming about the form ofexecution from the old time to modern time, we can conclude that civil compulsoryexecution has given up savage, civil execution requires rights. The second partdeclares that who enjoys the rights and which kind of rights do they have inenforcement, and then in connection with our existing legal system points out thestatutory rights in enforcement. The third part further analyzes the primal problems ofrights guarantee in civil compulsory execution, and tries to find the root cause for thelacking of guarantee. Many problems lead to the phenomenon of “execution nut” and“execution disorder”, such as execution system, society environment and so on. Wellthe last part makes the legislative proposals for the improving of guarantee whichincludes making independent laws, reforming the existing structure, bringing insupervision and giving the litigants and outsiders more rights and so on in accordancewith the contents aforesaid.