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The Civil Execution Relief System And Its Improvement Of Third People

Posted on:2013-03-27Degree:MasterType:Thesis
Country:ChinaCandidate:Y L WuFull Text:PDF
GTID:2296330374960067Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Civil enforcement is the final means in providing civil remedies. It is capable of protecting the rights of the creditors with the power of nation; however, it is also necessary for the scheme to provide shelter and relief for the third party whose lawful rights and interests were affected and who enjoy substantial rights during the enforcement. After the2007amendment of the Civil Procedure Law the situation of the third party during the enforcement stage has been greatly improved, nonetheless, there are still many problems in the scheme. The thesis probed into the basic theories for providing relief to the third party during civil enforcement, and discussed the current status of such scheme for providing such remedy in China as well as how similar schemes work in foreign systems. On the basis of aforementioned discussion, the thesis presents its own ideas of how to improve the current scheme for providing relief in civil enforcement in present Chinese legal system.The thesis totals about30,000words and is composed of preface, main article and conclusion, and the main article includes four parts.Part I of the article gives a general image of the scheme for providing relief to the third party during civil enforcement. In this part, the article starts with the definition and classification of "the third party" and gives its own definition of the relief system for the third party during civil enforcement. It also reveals the necessity for setting up a relief system for the third party during civil enforcement from three perspectives:the need to protect the rights and to provide remedies; the need to guarantee the check and balance of powers, and the need to provide corrosive means during enforcement. In addition, the article also gave a comparison of the1991Civil Procedural Law and2007Civil Procedural Law (as well as their judicial interpretations), discussed the improvement in law-making in relative fields, and reveals the progress in the development of the relief system for the third party.The topic discussed in Part II is the current situation of the relief system for third party during civil enforcement in Chinese legal system. The four types of schemes for providing relief for the third party—suit of objection to civil enforcement, reconsideration for enforcement, suit of objection during enforcement brought by the outsider, and suit for civil retrial brought by the third party. This part also reveals the problems of the current relief system and points out six main faults of the scheme:the vague border between the powers of the departments of registration, trial, and enforcement; the lack of specified agency to consider the objections brought during enforcement; the design of advanced-consideration of objections during the enforcement is not consistent with the principle of efficiency; the third party does not have the legal status and rights to bring a suit for civil retrial; the third party is capable of assisting the respondent to evade enforcement by bringing an arbitration on property rights matters, and the third party is capable of bring a suit of property rights matters to disturb the suit of objection to enforcement.Part III probes into the scheme for providing relief to the third party in foreign countries. In this part, two distinctive ways in arranging schemes for providing civil relief are discussed; two typical procedural ways for providing relief to the third party and three substantial means to provide such relief are also introduced in this part. Finally, this part of article reaches conclusion by summarizing the three points that our country may learn from foreign systems.Part IV talks about the author’s opinion on how to improve the relief system for the third party in civil enforcement. It includes:to set up and improve the norms during trial and enforcement, to enhance the relationship between the departments of registration, trial and enforcement within the court, to develop the design the current enforcement agencies and reconstruct their power to a better status, to make the third party capable of choosing suitable procedures, to replace the suit for retrial brought by the third party by discharging suit brought by the third party, to enhance the examination for the arbitral decisions in order to prevent the third party to abuse its rights, and to clarify the exclusive jurisdiction of the court responsible for enforcing matters on suits in relation to property rights confirmation.
Keywords/Search Tags:civil enforcement, relief for the third party, objection during the enforcementstage, suit on the basis of objection during the enforcelnent stage, suit for civil retrial
PDF Full Text Request
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