The Reasons On "Hard To Enforcement" Problems And Its Countermeasures

The system of civil enforcement is indispensable in our legal system, as the final stage of termination of civil proceedings, when one party who has the obligation between the two parties refuses to perform the obligations in the effective legal documents, according to the our country civil procedure law and other related laws and regulations, the people’s court can force the obligators to fulfill the obligations which have been confirmed in the effective legal documents by national constraining force, as that the effective legal documents could be carried out. On the basis of the system, so the right of obligee could be finally achieved, the substantive law could be truly implemented. For the most part, it concerns the dignity of law, the authority of court and the stability of the harmonious society. However, for some reasons, there are a large portion of the effective legal documents could not be performed smoothly, which causes the enforcement unable to effectively guarantee creditor’s rights, less damages the court’s judicial authority and largely affects the effective performance of litigation, more disturbs the stability and healthy operation of society, with the result that gradually undermines the people’s confidence in utility relief and shakes the foundation of the legal system. Thus the reform of civil execution system is imperative, independent legislation of the civil execution is obvious.This paper starts from the situation of court enforcement difficulty, lists the specific related data, clearly explains practical problems existed in enforcement difficulty. Then Through summarization of specific performances and realistic effects, this paper deeply interprets the extent of the problem, because it covers the wide range and severity, experiences a long time, so it is difficult to work it out.Secondly, this paper further analyzes the causes of civil enforcement difficulty. First, the execution of the laws and regulations is not sound, legislation is relatively backward, there is not related legal basis to solve the civil enforcement difficulty, so it is difficult to operate; second, the relevant supporting system is flawed, which is embodied in the set of the civil enforcement authority, trial and execution is not separated and cover a wide rage, the substance interests of the parties is less than security; superior and subordinate executive agencies are under unified leadership, which is against with principle of judicial independence, all those leads executive agencies to delay in exercising executive power and abuse executive power, so it is impossible to realize justice value and efficiency value. And there are lack of implementation and execution of supervision of the relevant regulations in supporting system, due to operational staff monopolized all enforcement of rights, as for mistakes happened in the enforcement, they could only solve it by themselves, which leaves a shadows on the effectiveness of the relief way; third, the court also has its own internal reasons, operational staff’s legal knowledge and theoretical attainment is uneven, their manner of working is simple and crude, which brings obstacles in the civil enforcement; forth, as we have not formed the real law culture in the process of our social development, the authority of the law cannot cause the public enough attention, when the court is handling cases, they are more vulnerable to various forces intervention, social credit system is lacking, and these external reasons are also brings more resistances to smoothly performing.In the third part, from the perspective of comparative law, other countries and regions in the world all have civil enforcement of the law, no matter Chinese Mainland’s law system or Britain and America law system. Japan, Sweden and Taiwan legislate independently for civil enforcement, such as Civil Enforcement Law in Japan, Taiwan’s Enforcement Law was drafted on3July1934and still used today, and the New Civil Enforcement Law in Sweden came into effect in1982. Germany and Italy bring the enforcement system into civil procedure. While Sweden takes civil enforcement system into act of bankruptcy. From the situation of execution legislation in the countries all over the world in recent decades, enacting the independent Enforcement Law seems to represent the general trend.The last is the focus of this paper, in view of the specific reasons of our civil enforcement difficult, puts forward the countermeasures. First, we should strengthen the execution legislation; perfect the legal system of civil enforcement. Then, we should adhere to the judicial reform to improve the executing system. Third, we should increase in execution and improve the enforcement capacity. Finally, this paper points out that the most basic and necessary way to solve "enforcement difficult" is to establish judicial authority, foster law culture and build social credit system, looking forward to providing some help on the theory and practice of "enforcement difficult"...