Research On The Concurrence Of Enforcement Relief System And Procuratorial Supervision Of Civil Enforcement

In recent years, the chaos of civil enforcement has become to be the majordilemmas of the status of civil enforcement in China. Before amending the “CivilProcedure Law”, the procuratorial supervision of civil enforcement plays animportant part in achieving the civil enforcement’s function. However, there has notbeen forming a unified legislative provisions and judicial practice in our country.With promulgating the amendments and judicial interpretations of “Civil Procedurelaw”, a new breakthrough has been happened in the rule of the enforcement reliefsystem, and both theoretical and practical communities attach importance to theeffect and further improvement of the new enforcement relief system. Now theprocuratorial supervision of civil enforcement and enforcement relief system makethe same function and it is necessary to build the relationship between the twosystem on the basis of their improvement. Then we could achieve the goal ofenforcement relief system and it is beneficial to promote the new round of "CivilProcedure Law" amendment and improvement.The paper is divided into five parts. The first part is the introduction, whichexplains the main context and research from four aspects: introduction of the issue,the current situation of the research, the significance of this perspective, the methods and opinion of this article.The second part is starting from the relevant provisions and basic theory of theprocuratorial supervision of civil enforcement and enforcement relief system. Andthis part explains the problem of each of them on basis of analyzing the operatingstatus of enforcement relief system and the difficulty of performing the procuratorialsupervision of civil enforcement. According to defining the concurrence of the civilprocuratorial supervision and enforcement relief system, the part analyzes theproblems arising from the two systems overlapping and coordinating ineffectively,then stress the importance of clarifying the relationship between the two systems andlay the foundation for further analysis below.The third part compares the procuratorial supervision of civil enforcement andenforcement relief system from the aspects of nature, subject, object, manner, timeand draws the conclusion from protection of parties’ and the Third Party’s right that:in our case, neither of them is the only path to improve the chaos and difficulties ofcivil enforcement. We should give dual protection to the parties and the Third Partyin order to explain the necessity of co-existing of the procuratorial supervision ofcivil enforcement and enforcement relief system. This part describes the feasibilityof the two co-exist according to analysis of the internal constraints and externaloversight theory in Jurisprudence and analysis of the Judicial cost-effectivenessusing Economic Analysis of Law method.The fourth part mainly introduces the relevant provisions of the procuratorialsupervision of civil enforcement and the enforcement relief system within andoutside our country. This part focuses on introducing the practice of these twosystems in countries of Aglo-American law system, France, Russia, Taiwan andother Representative nations and regions. At last, it analyzes their characteristics,experience and implications for China to deal with the concurrence of theprocuratorial supervision of civil enforcement and the enforcement relief system inabove countries and regions. The fourth part strengthens the elaboration of thesignificance of the third part and concludes that: the procuratorial supervision ofcivil enforcement and the enforcement relief system should exit together and restrict the civil enforcement powers separately as external oversight and internaldecentralization measures.The fifth part builds the dual constraints of civil enforcement powersrespectively from three aspects:“using rights to supervise powers”, which isimproving the civil enforcement relief system;“using powers to supervise powers”,which is building the procuratorial supervision of civil enforcement;“usingprocedure to supervise powers”, which is specific definition of their relationship.Building the relationship of them is divided into four aspects: time defined, rangedefined, way defined and the objects defined.The sixth part is conclusion and outlook. It concludes that: the enforcementrelief system and procuratorial supervision of civil enforcement constitute the dualconstraints of the Civil Enforcement. At the same time the thesis prospects thegovernance of China’s civil enforcement power abuse and the overall improvementof civil enforcement.