The Jurisprudence Thinking Over The Separation Of Civil Judgment And Execution In Chinese Court

In recent years, with the development of market economy of socialism, theeconomic disputes among people are increasing day by day, therefore, the load ofjudicial work of the court has increased in geometric times. However, difficultenforcement of judgment has made the established effective judgments can not realize,the affirmation or rectification to social justice of the rulings also can not manifest.The judicial judgments which can not fulfill would make the credibility and authorityof the court become nothing. The problem of difficult enforcement of judgments isseriously impairing the authority of justice in China and causing lots of socialproblems. However, the current system of civil execution in China can neither adaptto the rapid development of economy nor overcome the breakout of social conflict, italso causes a distress status quo that the effective judgments are difficult to enforceand the enforcement of judgment is inefficient. This thesis aims at solving thedilemma of the difficult enforcement of judgments, it analyzes the theoretical sourceof difficult enforcement—the orientation of the nature of civil execution from teasingout the process of development of the relationship between judgment and execution inChina’s court system, and discusses the system dilemma in the relationship betweenexecutive power and judicial power, then extracts some immature conception of thesystem. In the writing process, the author tries to illustrate and argue those questionsfrom multiple aspects, hopes this thesis is helpful to the construction of the theory ofcivil execution in our country, the improvement of execution, and the solution to thedilemma of difficult enforcement.The specific idea of argument in this thesis is:Firstly, the introduction is about the current situation and dilemma of difficultenforcement in our country. Secondly, analyzes the views between practical andtheoretical circles towards the civil system, especially towards the theoreticalcontroversy of the following problems: the role orientation of the court in civil execution, the relationship between jurisdiction and civil execution, the nature of civilexecution, and the apartment of judgment and execution. Among all of these, thedifferent theories towards the nature of civil executive power in the academic circlesare emphatically discussed.The first part of the text focuses on teasing out the process of development of therelationship between judgment and execution in China’s court system, analyzes thelimitation execution agency has under the leadership of the court can neither trulyrealize the apartment of civil judgment and execution nor solve the problem ofdifficult enforcement, then conclude that misunderstanding of the traditional andcurrent civil execution towards civil enforcement is the source of all these problems.Therefore, clarifying the relationship between civil judgment and execution,constructing a scientific and reasonable civil execution system is based on correctlyunderstanding and positioning the nature of civil execution.The second part thoroughly discusses the theoretical basis on constructing thescientific civil execution system—the nature and orientation of civil executive power.Firstly, analyzes the definition and feature of civil execution, meanwhile, points outcivil execution is a double execution which includes the right to judge and the right tocarry into execution, but in the civil execution system, they are not clearly classified.Secondly, discusses the nature of civil executive power from the perspective ofanalyzing and comparing the nature of judicial power and administrative power.Eventually, gets the argument that civil executive power is administrative power.Then discusses the internal power constitution of civil executive power, anddetail the powers and functions of civil executive power. Lastly, discusses the functionand value pursuit of civil executive power. Through discussing civil execution, civilexecutive power, nature, feature, and functions, reveals that the relationship betweencivil execution and civil justice in our country’s judicial system is unreasonable.The third part analyzes the obstacles of the current civil execution system fromthe point of system operation. Firstly, the dilemma of the checks and balance betweenjudicial power and administrative power and the power check within judicial power.The mode of executive bureau can not perfectly realize the external restriction from the other powers and the checks and balance within the court during the civilexecution. Secondly, the dilemma between maintain the justice and the authority ofthe judiciary and restrain the corruption of the judiciary. The features such asactiveness, randomness, uncertainty and partiality of the civil execution run againstthe features of the judicial judgment. At present, the fact that the civil executive poweris exercised by the court damages the neutrality and the impartiality of the judiciary,and it also damages the fair and authoritative image of the judiciary. In the currentrelationship between the civil execution and the civil judgment, the mode of executiveagency makes itself cannot get perfect supervision and restriction, the execution isserious corrupted. Thirdly, the dilemma is the inefficient civil execution. On one hand,the prior value of judicial power is opposed to the value of the civil execution, andfurthermore, the weakness and the limited resources of the jurisdiction cannot providemore manpower, financial resource and physical resource to support the civilexecution. On the other hand, the current civil execution system is not economy. Thecivil execution which administrative authority is the civil executive body has lots ofproblems. Therefore, the thesis demonstrates the necessity of the thoroughreformation to the relationship between the current civil execution and the civiljudgment.In the last part, the thesis suggests the conception of the system which canthoroughly realize the separation between the civil executive power and the judicialpower on the basis of learning the mature experience of the western law-ruledcountries. More specifically, the author suggests a mode of the civil execution whichadministrative authority is the civil executive body. It also suggests the construction ofthe new civil execution supervision mechanism which includes the administrativesupervision and the judicial supervision, and discusses the possibility of regulatingand supervising the civil execution which is led by the administrative authority. At thesame time, some proposals about executive relief are put forward based on the patternconstruction that administrative authority is the civil executive body. Finally,proposing to construct the judicial disciplinary system of civil enforcementnonperformance by learning from the “criminal contempt”(“contempt of court”) ofthe USA and the UK.